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

[2017] AATA 1746

Turley and Secretary, Department of Social Services (Social services second review) [2017] AATA 1746 (16 October 2017)

Division:GENERAL DIVISION

File Number:           2017/0226

Re:Graham Turley

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member J Sosso

Date:16 October 2017

Place:Brisbane

The decision under review is affirmed.

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

Senior Member J Sosso

CATCHWORDS

SOCIAL SECURITY – disability support pension – Impairment Tables – where Applicant has several conditions – whether conditions are fully diagnosed, treated and stabilised – points allocation – whether conditions attract points under the Impairment Tables – relevant period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 94

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 922

Gallacher v Secretary, Department of Social Security

[2015] FCA 1123

Shi v Migration Agents Registration Authority

(2008) 235 CLR 286

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011

REASONS FOR DECISION

Senior Member J Sosso

16 October 2017

INTRODUCTION

1. Mr Graham Turley (the Applicant) seeks a review of the decision of the Social Services and Child Support Division of this Tribunal (AAT 1) of 7 December 2016 which affirmed a decision of the Department of Human Services (the Department) to reject the Applicant’s claim for the disability support pension (DSP).

2. The Applicant lodged a claim for the DSP on 10 June 2015 – Exhibit 1 T32 pp. 158 – 186. In his claim he listed his disabilities, illnesses and injuries as follows – Exhibit 1 T32         p. 170:

   “arthritis: all joints, nerve damage: in neck, lower back + elbows, tinnitus; ulcers + hernia in ches., hernia – groin. hearing loss 20%, seizure / blackout”.

3. Attached to the claim was a handwritten summary of the Applicant’s medical conditions. It is a comprehensive account of his medical state at the time of his application, and is set out in full below – Exhibit 1 T33 pp. 187-188:

   “NECK, nerve pain + tenderness + stiffness from base of scull (sic) to shoulder.

   -    Having phsio (sic) once a week.

   HEAD: back of head pain at base of scull (sic), temple head aches both sides

   EARS ear ringing both ears constantly 24 hrs a day – 20% hearing loss both ears

   SHOULDERS right shoulder has word (sic) out rotor (sic) cuff resulting in limited movement of arm, with restricted movement + pain + pins + needles in right hand up to elbow. Showering painful due to lifting arm – left shoulder not as severe as right. Pain 50% that of right. Left shoulder clicks in + out of joint periodicly (sic)

   SPINE joint fusur (sic) from lower back to mid back pain bending or walking, sitting down. Unable to relax when sleeping, laying down

   HIPS pain is increasing in both hips from arthrit (sic) when walking, sitting

   HANDS both hands are stuffed not much good for anything. Cannot put any sort of pressure on hands as pain is severe and cannot hold onto objects + dropping knives when I cut anything under pressure can not even use a can opener. Pain even when writing. Including this letter Pain in thumbs & fingers when turning door knobs

   KNEES pain when walking or standing to (sic) long right leg gets pins + needles from sitting on plastic or hard seating am unable to put foot on ground or move

   FEET both feet are painful all the time. Unable to walk properly and for any length of time, both feet are swollen underfoot all toes are fused at the first joint”.

4. Supporting the claim was a Medical Report prepared by Dr Vaezipour, a general practitioner dated 9 June 2015 – Exhibit 1 T31 pp. 147 – 157. The Applicant had been a patient of Dr Vaezipour since 16 July 2013 – p. 149.

5. Dr Vaezipour listed two conditions afflicting the Applicant and which have a significant impact on his ability to function. The first was “psoriatic arthropathy followed by advanced degenerative changes” – Exhibit 1 T31  p. 150. The second was “advanced degenerative changes on cervical vertebrae + osteoporotic fracture of vertebrae” – p. 153. Further, Dr Vaezipour outlined the additional medical conditions which are generally well managed and cause minimal or limited impact on function: “hip OA – psoriasis, possible Inguinal hernia, one episode of epileptic seizure/under investigation” – p. 156.

6. The Applicant is currently 59 years of age and for most of his adult life was employed as a qualified painter and decorator.

7. Evidence presented to the Tribunal discloses that the Applicant has been the subject of a number of assessments by Job Capacity Assessors (JCA) since 2007.

8. The Applicant has consistently complained of psoriasis and arthritis of the shoulders, arms and neck. When he was first interviewed on 9 August 2007, he was 49 years of age and his condition, though painful, was not severe. The JCA noted that his employment as a painter and decorator was (Exhibit 1 T4 pp. 65-66):

   “becoming increasingly difficult due to his arthritic conditions. Mr Turley believed that the may be able to maintain this type of employment, but in less physical positions.”

9. Each of the successive JCA Reports discloses an ongoing deterioration in the Applicant’s physical state.

10. The next Assessment was conducted on 3 April 2008, and the JCA made the following observations – Exhibit 1 T5 p. 70:

    “Mr Turley reported that Arthritis of the both shoulders, arms, fingers, lower back and neck are currently impairing his ability to meet his participation requirement. He reports to experience symptoms of pain on body movements particularly lower back, neck, wrist, shoulders and fingers. He reported that he is unable to make a fist and often drops objects. He reported that he currently uses anti-inflammatory medications…

    Mr Turley reported that he has work experience as (sic) qualified painter and decorator. He reported that, due to physical (sic) demanding nature of this type of work, due to his medical conditions it is was (sic) becoming increasingly difficult to maintain full time. He says he ceased his current employment 6 weeks ago.”

11. Two days later, the Applicant underwent an X-ray of the lumbar spine. At that time he reported that he had been experiencing low back pain for the previous five months. The findings of the X-ray were as follows – Exhibit 1 T6 p. 72:

    “There is a lower thoracic and upper lumbar scoliosis convex to the left.

    Pedicles are intact.

    There are 6 lumbar type vertebral bodies with partial lumbarisation of S1.

    On the right side the lumbarised S1 produces a pseudoarthrosis to the upper sacrum.

    There is no pars defect or of spondylolisthesis.

    There is moderately severe degenerative change in the apophyseal joints of the lower lumbar spine.

    There is osteophytic spurring of the lower thoracic and lumbar vertebral bodies which are likely to be the result of DISH although similar changes can occur with psoriatic spondylosis.

    There is no erosive change of the sacroiliac joints.”

12. The Applicant underwent a further Job Capacity Assessment on 6 April 2009. The JCA reported that the Applicant had two conditions: arthritis and haemorrhoids. Only the arthritic condition was considered permanent, but the JCA was of the opinion that it was not fully diagnosed, treated or stabilised. The JCA noted that the Applicant was having difficulties with pain and had limited physical abilities due to arthritis in the knees, fingers and lower back. In particular, it was noted that the Applicant had manual dexterity limitations, with difficulties with grip strength due to arthritis. The JCA made the following observations – Exhibit 1 T7 p. 75:

    “Client takes Tramal daily, has used Voltaren in the past, but has had no specialist assessments or follow up. Client reported experiencing fluctuating pain in the finger, low, back and knees. However, the MC states that the main restrictions are due to pain in the clients (sic) knees, and that he has to avoid stairs if possible. The client reported that he also has difficulty with heavy lifting, and gripping objects, such as his paintbrush while at work. The client was observed to have psoriasis over parts of his visible skin, and was particularly severe in the finger and toenails.”

13. On 6 July 2009 the Applicant’s lumbar spine was X-rayed. The report of the X-ray discloses that the Applicant was, at that time, suffering from disc degeneration – Exhibit 1 T8 p. 77:

    “There is narrowing of the disc at L5/S1 suggesting disc degeneration with narrowing of the disc also at L1/2 consistent with disc degeneration.

    In the lower thoracic spine there is slight narrowing of the disc at T11/12 with osteophytic spurring consistent with disc degeneration.

    There is no pars defect or spondylolisthesis.

    There is moderate degenerative change in the apophyseal joints of the lower lumbar spine.

    The transverse process of L5 on the right side is expanded with a pseudoarthrosis to the upper sacrum with degenerative change in the pseudoarticulation.”

14. A further Job Capacity Assessment was conducted on 8 September 2009. This followed the Applicant suffering a blackout and falling and hurting his back. The Applicant was then taking Endep and Panadol to manage his pain and was awaiting an appointment to see an arthritis specialist at the Mater Hospital – Exhibit 1 T9 pp. 78 – 83.

15. On 23 October 2009 the Applicant underwent an X-ray of his cervical spine. Dr Park reported that although the Applicant’s vertebral body alignment was good – Exhibit 1 T10 p.84:

    “There is significant degenerative change involving the discs from the level C4 down especially that of C6/7. Prominent degenerative narrowing with osteophyte formation is present.

    There is some foraminal narrowing on the left side at the C3/4 level on account of facet joint arthritis and at theC7/T1 level due to degenerative change in the disc. On the right side there is foraminal narrowing at the C6/7 level and less so at the C5/6 level.”

16. This diagnosis was mirrored by the findings of a CT scan of the Applicant’s cervical spine which was taken on 4 November 2009 – Exhibit 1 T11 p. 85.

17. X-rays of the Applicant’s hands and feet were taken on 1 February 2010. The summary findings were “degenerative changes in the wrists, hands and feet... There is also likely to be psoriatic arthropathy with tufting of the distal radius bilaterally and with soft tissue swelling of the PIP joints of the fifth fingers… suggesting psoriatic anrthropathy of the PIP joints of the 5^th fingers” – Exhibit 1 T12 p. 87.

18. The Applicant was examined by Dr O’Callaghan, Rheumatologist at the Mater Hospital in May 2010. In his report, dated 1 June 2010, Dr O’Callaghan made the following diagnosis – Exhibit 1 T13 p. 88:

    “…it was considered that he had a combination of psoriatic arthritis and osteoarthritis. His inflammatory markers were elevated and he was commenced on Salazopyrin. He presented with his X-rays today and he does have moderately severe cervical spondylosis particularly at C6/7 with also foraminal narrowing at this level, more marked on the right than the left. He has facet joint osteoarthritis in the lower lumbar spine and there are osteoarthritic changes in the hands although there were also some erosive changes. I couldn’t see any erosive changes in the feet but he had osteoarthritis in his first MTP joints and there was some osteoarthritis in the ankles.”

19. The Applicant was subsequently assessed by a JCA on 7 October 2010 (Exhibit 1 T14 pp. 89 – 93), and an Employment Services Assessor (ESA) on 2 May 2012 – Exhibit 1 T17 pp. 110 -114. While the JCA concluded the Applicant had a baseline work capacity of 15- 22 hours per week (p. 91), the ESA was of the view that the Applicant’s condition was sufficiently severe that only 8- 14 hours were practicable (p. 113). Both Assessors were in agreement that a referral to the Vocational Rehabilitation Program was unlikely to be of any benefit given that the Applicant had previously been referred to that Program but had failed to comply with the Program due to medical conditions – pp. 93 and 114, respectively.

20. On 5 June 2013 the Applicant underwent X-rays of his cervical spine, shoulders, elbows, hands and feet – Exhibit 1 T18 p. 115.

21. The X-ray of the cervical spine disclosed “no definitive erosive changes. No significant soft tissue swelling” and found overall there was “normal alignment of the cervical spine”. Nonetheless, consistent with the previous X-rays it disclosed “loss of intervertebral disc height at the C5/6, C6/7 and C7/T1 levels.”

22. The X-ray of the shoulders and right elbow also disclosed no abnormalities. However the left elbow disclosed “degenerative change with spurring noted of the coronoid process. There is ossification at the lateral epicondyle and at the lateral aspect of the radius at the expected location of the origin and insertion of the radial collateral ligament suggesting previous injury to the radial collateral ligament on the left.”

23. Both hands disclosed “underlying erosive osteoarthritis rather than rheumatoid arthritis.”

24. The X-rays of the feet disclosed “loss of distal interphalangeal joint space throughout”. Joint spaces were relatively well preserved and bone density was normal.

25. On 18 June 2013 further X-rays were made of the Applicant’s lumbosacral spine and both knees. Dr Corness who performed the tests provided the following report – Exhibit 1 T19 p. 116:

    “Clinical Details

    Rheumatoid arthritis.

    Lumbosacral spine

    Normal vertebral alignment. Anterior wedging of the vertebra at the thoracolumbar junction which would be degenerative in nature. Large osteophytes are present at this level and throughout the upper lumbar spine. Only minimal loss of intervertebral disc height is evident. No spondylolysis.

    Both knees

    Degenerative change is present within the medial compartments bilaterally. Associated adjacent mild osteophytosis. No surrounding minor osseous sclerosis with no subchondral cyst formation. Osteophytosis is also present bilaterally within the patellofemoral joint. No joint effusion is evident.”

26. The latest X-ray of the Applicant was taken on 28 March 2014 by Dr Gary Shepherd. The Applicant’s cervical and lumbar spine as well as his jaw/mandible were X-rayed. The tests disclosed ongoing degenerative changes in the cervical spine. Dr Shepherd’s report is set out below – Exhibit 1 T27 p. 134:

    “History

    Chronic neck and lower back pain. Persistent pain in jaw.

    Findings

    Cervical Spine

    Advanced degenerative changes observed in the mid to lower cervical spine, particularly C4/5, C5/6 and C6/7 discs. This is associated with prominent osteophytes, disc height loss and marginal osteophytic change. Bony foraminal narrowing is observed at multiple levels, particularly severe bilaterally at C4, on the right side at C6 and C7 with lesser changes on the left at C7. No fracture or destructive osseous lesion.

    Lumbar spine

    Anterior wedging of the T11, T12 and L1 vertebral bodies, likely osteoporotic crush fractures or less likely post traumatic wedging. There is up to 35-40% loss of vertebral body height. There is no evidence of a destructive osseous lesion. There are degenerative changes noted in the lumbar discs at multiple levels, but most notable in the thoracolumbar junction region. No spondylolisthesis or pars defect. No destructive changes.

    Jaw/Mandible

    The patient is edentulous. Osteoarthritic changes which are minor are noted in the left TMJ. No osseous lesion. No fracture. No retained tooth fragment.

    Conclusion

    Advanced degenerative changes in the mid cervical spine.

    Probable osteoporotic fractures of the vertebrae around the thoracolumbar junction.

    Mid left TMJ osteoarthritic changes.”

27. On 30 July 2015 the Applicant was interviewed by another JCA. The JCA assessed the Applicant as having a total impairment rating of 15 points, comprising 10 points for arthritis under Table 1 and five points for spinal disorder under Table 4 – Exhibit 1 T35 p. 201. The JCA found that the Applicant’s psoriasis, diverticulitis, hip osteoarthritis, epilepsy, hernia, hearing loss and anxiety were not fully diagnosed, treated and stabilised – pp. 197 – 200. The JCA opined that the Applicant’s baseline work capacity was 8 – 14 hours per week and he was suitable for light less skilled work – p. 202. Further, the JCA was of the opinion that with intervention the Applicant would have a work capacity of 15 – 22 hours per week within two years, and suggested as an example of the type of work he could perform “ticket collector” – p. 203.

28. The Applicant’s claim was subsequently rejected on the basis that his medical conditions could not be assigned 20 or more points under the Impairment Tables – Exhibit 1 T36 p. 205.

29. Subsequently, an Authorised Review Officer (ARO) agreed with the findings of the JCA and affirmed the decision – Exhibit 1 T37 pp. 207 – 211.

30. On 7 December 2016 the AAT1 affirmed the decision under review. Member Bishop found that only 15 points total could be assigned under Impairment Tables 1, 2 and 4, however she observed that given the degenerative nature of the Applicant’s condition, and a recent accident, his overall functional abilities were likely to have deteriorated further from their state at the time he lodged his claim – Exhibit 1 T2 pp. 3 – 9.

31. A hearing was convened in Brisbane on 24 August 2017. The Applicant was self-represented and participated via teleconference. The Secretary, Department of Social Services (the Respondent) was represented by Ms Claire Campbell.

    LEGISLATION

32. To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:

    (a)the person has a physical, intellectual or psychiatric impairment;

    (b)the person’s impairments is of 20 points or more under the Impairment Tables; and

    (c)the person has a continuing inability to work.

33. The Impairment Tables are located in the Determination, which was made pursuant to section 26 of the Act and came into force on 1 January 2012.

34. Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clauses 5(2) and (3). Importantly, Clause 5(2) explains that the Tables are function based rather than diagnosis based (Cl 5(2)(b)), and describe functional activities, abilities, symptoms and limitations – Cl 5(2)(c). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions – Cl 5(2)(d).

35. The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).

36. An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).

37. To be a permanent condition it must be:

    (a)fully diagnosed by a medical practitioner;

    (b)fully treated;

    (c)fully stabilised; and

    more likely than not, to persist for more than two years – Cl 6 (4).

38. In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).

39. A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).

40. A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.

1. This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:

   “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”

   CONSIDERATION

   Introduction

2. The Respondent concedes that the Applicant’s arthritic conditions were fully diagnosed, treated and stabilised during the qualification period – Secretary’s Statement of Facts & Contentions (SSFC) para 34.

3. The Respondent also acknowledges that the Applicant suffers from pain in his feet, cervical and lumbar spine, fingers, hips and wrists and, consequently, his condition can be rated under Tables 2, 3 and 4 of the Impairment Tables – SSFC para 35.

   Table 2 – Upper Limb Function

4. Table 2 is used where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms. Self-reporting of symptoms is not sufficient, and Table 2 requires a diagnosis from an appropriately qualified medical practitioner as well as corroborating evidence. A number of examples are provided of potential corroborating evidence, including X-rays or other imagery.

5. The Respondent concedes that points should be assigned under this Table, but contends that, consistently with the finding of AAT1, only 5 points can be assigned for this condition – SSFC para 36.

6. In support of this contention, the Respondent drew the Tribunal’s attention to the findings of the JCA in the report of 30 July 2015. The JCA noted – Exhibit 1 T35 p. 196-197:

   “Domestic tasks – difficult unscrewing bottles, difficulty with fine motor skills, unable to pick up coins, difficulties with buttons/zippers, fatigue quickly with repetitive use of hands, difficulty writing. Never used a computer. Pain and fatigue with preparing vegetables, able to perform upper limb activities 1 – 2 minutes at a time. Able to hang washing, but has difficulty reaching overhead…

   Shopping – on island with housemate, unable to carry groceries

   Lifting – able to lift 3 litre milk with both hands.”

7. The Applicant’s self-reporting is corroborated in the report of Dr Vaezipour of 9 June 2015 where he noted that the Applicant found it hard to carry and hold objects, mainly in the morning – Exhibit 1 T31 p. 152.

8. The Applicant gave evidence at AAT1 and said that “he cannot form a fist and he needs both hands to hold a coffee cup. He finds the activities of cutting up an apple and shaving painful and fatiguing” – Exhibit 1 T2 p. 7 para 18.

9. On the basis of this evidence and the JCA Report quoted above, Member Bishop assigned 5 points under Table 2. She said – p.8 para 22:

   “The tribunal assigns the condition five points under Impairment Table 2 because Mr Turley can manage most activities requiring the use of hands and arms but had difficulties with picking up heavier objects, handing small objects (coins), doing up buttons or reaching up and out to pick up objects.”

10. The Applicant gave evidence on 24 August 2017 and said that he had clawed hands and could not write, pick up pencils or form a fist. He stated that he could still do some work preparing a meal, including peeling “spuds” and cutting up a carrot. However, he stated that he could not cut up a pumpkin or open a can and he relied upon frozen vegetables. While he could cook a steak, he tired easily and after a small exertion had to rest for ten minutes.

11. The Applicant confirmed that he can drive a car and can carry a three litre carton of milk with both hands. He confirmed that he could not carry groceries in plastic bags and had difficulties with zippers, buttons and unscrewing lids. He also testified that he needed both hands to pick up a coffee cup, one hand was placed underneath to keep it steady, and that if he dropped a coin or a small object, it required great effort and time to pick it up. He estimated it would take him two minutes to pick up a dropped coin.

12. The Applicant also testified that since 2016 he can no longer mow the lawn. He was able to do prior to that time, but his back had deteriorated significantly since then.

13. Clearly, the Applicant meets the criteria of mild functional impairment such that five points can be assigned. The evidence discloses that he has difficulty picking up heavier objects, handing small objects, doing up buttons and reaching up or out to pick up objects.

14. In order to be assigned ten points, a person must have difficulty with most of the tasks enumerated in (a) to (f). Insofar as the Applicant testified that at the time he made his claim and during the qualification period he could drive a motor vehicle, mow the lawn, pick up a three litre carton of milk (with both hands), hang out the washing and make his bed, it is not possible to assign ten points.

15. It should be noted, however, that at the time of the hearing, the Applicant testified that he could no longer hold and use a pen, mow the lawn or write. He also testified that he had great difficulty unscrewing a lid on a bottle. If that self-reporting was corroborated by a medical specialist or an allied health practitioner (e.g. a physiotherapist, occupational therapist or exercise physiologist), then ten points could be assigned. Indeed, if his functional capacity continues to deteriorate, it could be that in due course it will regrettably be open to classify the impact on his upper limb function as severe.

16. In the meantime, however, the Tribunal must proceed on the evidence of the degree of functional impairment at the date of the qualification period. In this instance the degree of impairment falls between five and ten points. Clause 11 of the Impairment Tables provides that in assigning an impairment rating it is impermissible to assign a rating between consecutive impairment ratings – Cl 11(1)(b). Rather, the Tribunal is required, when an impairment falls between two impairment ratings, to assign the lower of the two ratings – Cl 11(1)(c). Accordingly, the Tribunal is required to assign a rating of five points.

    Table 3 – Lower Limb Function

17. Table 3 is used where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

18. As with Table 2, the condition must be diagnosed by an appropriately qualified medical practitioner, self-reporting of symptoms is insufficient and corroborating evidence is required.

19. The Respondent contends that no points can be assigned because the Applicant is unable to satisfy descriptors 2(a) or (b) of the five point table. Those descriptors are:

    (a)the person is unable to stand for more than 10 minutes;

    (b)the person can mobilise effectively but needs to use a lower limb prothesis or a walking stick.

20. The Respondents contends (SSFC para 42) that the Applicant confirmed a standing capacity of 20 minutes with the JCA (Exhibit 1 T35 p. 196) and testified at AAT1 that he did not require the use of a walking aid (Exhibit 1 T2 p.7 para 19).

21. The Applicant testified that he still does not use a walking aid. The reason given was that such an aid caused too much pain in shoulder. Instead he walks “hunched over”.

22. Unfortunately, the Tribunal cannot assign any points under Table 3. This is, having regard to all of the evidence, unfair. However, the strict wording of the Impairment Table provides no leeway and requires the assignment of zero points. It is manifestly clear that the Applicant does in fact suffer functional impairments caused by the state of his legs and feet. If the Applicant does require the use of a walking aid, but because the pain associated with use prevents him from utilising it, and this was corroborated by an allied health practitioner, then an assignment of points under Table 3 would be appropriate.

    Table 4 – Spinal Function

23. Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

24. As with Tables 2 and 3, a diagnosis must be made by an appropriately qualified medical practitioner, self-reporting of symptoms alone is insufficient and corroborating evidence from a suitably qualified medical practitioner or allied professional is required.

25. The Respondent contends (SSFC paras 44-46) that five points should be assigned to the Applicant under this Table because the evidence discloses that he has difficulty in bending to knee level and straightening up again without difficulty and in turning his trunk or moving his head. Accordingly, descriptors 1(b) and (c) of the five point rating are satisfied.

26. It was on this basis that Member Bishop assigned the Applicant five points – Exhibit 1 T2 p. 8 para 22.

27. Reliance can be placed on the following observations of the JCA – Exhibit 1 T 35 p. 202:

    “Dr Vaezipour confirmed restricted range of movement and chronic pain in neck. Graham demonstrated some restrictions of active cervical movement and pain with trunk flexion to knee level.”

28. The JCA also noted that the Applicant was able “to hang washing, but has difficulty reaching overhead with his right arm. Able to vacuum/make bed and do washing using pacing techniques. Driving- able, but no car” – p. 196.

29. The Applicant also gave evidence at AAT1 as follows – Exhibit 1 T2 p. 7 para 18:

    “He said bending over to change the spark plugs in his car is painful. He can still drive a car but needs to be able to climb up into it (like a four wheel drive). He has pain in his head if he looks up.”

30. The Tribunal is unable to assign the Applicant 10 points under Table 4 as he was able during the qualification period to perform each of the tasks, or equivalent functional activities, albeit in some instances with pain and difficulty. Consequently, the Tribunal assigns the Applicant 5 points under Table 4.

    Table 1 – Functions Requiring Physical Exertion and Stamina

31. Member Bishop assigned the Applicant 5 points under Table 1 – Functions requiring Physical Exertion and Stamina.

32. The Respondent contends that it is not permissible for the Tribunal to assign points under this Table as it would amount to double counting of the functional impact of the Applicant’s arthritic condition, which is impermissible pursuant to Cl 10(4) of the Rules for applying the Impairment Tables – SSFC paras 49 – 50.

33. The Respondent contends that Tables 2, 3 and 4 take into account the Applicant’s pain on his ability to perform physical activities involving his upper and lower limbs and spine – SSFC paras 50 – 51.

34. The Tribunal agrees that it would constitute double counting if an assignment was made under Table 1, when specific consideration has been given to the Applicant’s arthritic condition under Tables 2 – 4. Accordingly, no assignment will made under Table 1.

    Other Conditions

35. In Dr Vaezipour’s medical reporting in support of the Applicant’s claim he lists other medical conditions which are well managed and that cause minimal or limited impact on function. Those conditions are hip OA, psoriasis, inguinal hernia and epilepsy – Exhibit 1 T31 p. 156. The Applicant also listed in his claim tinnitus, ulcers and hernia in chest, hernia in groin, hearing loss and seizure/blackout – Exhibit 1 T32 p. 170.

36. The Respondent contends that these conditions were not fully diagnosed, treated and stabilised during the qualification period. This follows, it is contended, from the fact that the evidence fails to disclose the extent of treatment undertaken by the Applicant prior to the conclusion of the qualification period, or what his prognosis would be if he were to undertake reasonable treatment – SSFC paras 52-53.

37. The Tribunal accepts the Respondent’s contentions. The evidence of these conditions is scant. There is no evidence that any of these conditions has been fully diagnosed, treated and stabilised. Moreover, there is scant evidence of the extent to which any or all of these conditions has any functional impact. Finally, there is no evidence that any or all of these conditions are temporary or permanent.

38. In the circumstances no impairment points can be assigned.

    Overall Impairment Rating

39. The Applicant is assigned an overall impairment rating of 10 points under the Impairment Tables during the qualification period. Accordingly, the Applicant does not satisfy s 94(1)(b) of the Act, and the Tribunal is not required to consider whether the Applicant has a continuing inability to work.

    Other Issues

40. At AAT1 Member Bishop referred to an accident involving the Applicant in July 2016. He fell from a ladder and required hospital admission for three days. Member Bishop made these observations – Exhibit 1 T2 p. 8 para 24:

    “He underwent orthopaedic review for a coccyx fracture and the plan was for Mr Turley to be followed up by his general practitioner and take pain medication. During the hearing, Mr Turley appeared to be in significant discomfort with reduced sitting tolerances and pain in his coccyx.”

41. Unlike Member Bishop, the Tribunal did not have the benefit of observing the Applicant as he gave evidence by telephone. However, the Applicant did give evidence about his July 2016 accident and his account was consistent with the evidence given at AAT1.

42. It seems clear from the evidence presented that the Applicant’s state of health is slowly but inexorably declining. The July 2016 accident appears to have accelerated this decline.

43. As the accident occurred after the conclusion of the qualification period, the Applicant’s state of health post July 2016 cannot be factored in when determining the degree of functional impairment and the quantum of impairment points that can be assigned.

44. However, it is appropriate to note that if the Applicant’s impairments were assessed now, as distinct from 10 June to 9 September 2015, then a significantly different points assignment may have been made.

45. It is also of note that the Applicant has been assiduously participating in a program of support for many years, and not just the 36 months prior to his claim for the DSP.

    DECISION

46. The decision under review is affirmed.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

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

Associate

Dated: 16 October 2017

Date of hearing:	24 August 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms Claire Campbell Department of Human Services