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

Wellington and Secretary, Department of Social Services (Social services second review) [2018] AATA 70 (24 January 2018)
Division:GENERAL DIVISION
File Number: 2017/3970
Re:Martin Wellington
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:24 January 2018
Place:Brisbane

The Tribunal affirms the decision under review.
........................[Sgd]................................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether conditions permanent – 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
24 January 2018
INTRODUCTION AND CLAIMS HISTORY

On 3 August 2016, Mr Wellington lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as arthritis in the knee, hip and back which he says causes him to be unable to walk or stand for any length of time.[1]
[1] Exhibit 1, T Documents, T10, pages 93-94, Mr Wellington’s Claim for DSP dated 3 August 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mr Wellington’s claim for DSP on the basis that he did not have impairments with a total impairment rating of 20 points or more.[2]
[2] Exhibit 1, T Documents, T13, pages 108-109, Rejection of claim for DSP dated 21 February 2017.
Claim History
Mr Wellington sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that his permanent impairments did not attract an impairment rating of 20 points or more.[3]
[3] Exhibit 1, T Documents, T15, pages 111 – 114, Decision of ARO dated 20 March 2017.
Mr Wellington then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 20 April 2017.[4] The SSCSD rejected Mr Wellington’s claim and affirmed the ARO’s decision on 2 June 2017.[5]
[4] Exhibit 1, T Documents, T17, pages 119-120, Application to AAT1 for Review of Decision dated 20 April 2017.
[5] Exhibit 1, T Documents, T3, pages 11 – 18, SSCSD’s Decision and Reasons for Decision dated 2 June 2017.
Mr Wellington now seeks a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T2, pages 3-10, Application for Second Review of Decision dated 5 July 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 Wellington must have a physical, intellectual or psychiatric impairment;
(b)Mr Wellington’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”).[7]
(c)Mr Wellington must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Wellington meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 2 August 2016)[8], unless

Mr Wellington becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, in order to qualify for DSP
Mr Wellington must have met the Section 94 Requirements between 2 August 2016 and 1 November 2016 (“Qualification Period”).
[8] The date Mr Wellington contacted Centrelink regarding lodging a claim: Exhibit 1, T7, page 64, Confirmation of
Intention to Claim dated 2 August 2016.
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Wellington’s impairments after the Qualification Period can only be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[10]
DID MR WELLINGTON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[10] 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”.[11]
Mr Wellington’s Medical Conditions
[11] Determination, s 3.
Lumbosacral Spine
In March 2016, Mr Wellington had an x-ray of his lumbosacral spine which showed:[12]
Grade 1 anterolisthesis of L5 in relation to S1. Spondylotic changes in the lumbar spine with facet arthropathic changes most marked on the left side at the L5/S1 level. Mild bilateral sacroiliac joint degenerative change.
[12] Exhibit 1, T Documents, T5, page 62, X-ray report dated 9 March 2016.
In January 2017, Dr Oliver Simpson, General Practitioner, reported that:[13]
[13] Exhibit 1, T Documents, T11, page 98, Report of Dr Simpson dated 31 January 2017.
(a)Mr Wellington has osteoarthritis in his back which was becoming more painful;
(b)the arthritis makes it acutely painful for Mr Wellington to walk or stand;
(c)Mr Wellington has a problem sitting on most chairs for any period of time;
(d)Mr Wellington uses a walking stick with crutches to move around;
(e)Mr Wellington is only out of pain when sitting in a reclining chair;
(f)Mr Wellington has tried several pain medications but only the Panadeine seems to have any effect for short periods;
(g)Mr Wellington has difficulty sleeping and wakes up several times a night;
(h)Mr Wellington is unable to do simple tasks like putting on shoes and socks; and
(i)there is no additional treatment for the arthritis in Mr Wellington’s back.
In September 2017, Dr Simpson reported that:[14]
(a)Mr Wellington treats his degenerative disease of the lumbar spine with anti-inflammatory medicines which have shown little improvement;
(b)Mr Wellington’s back causes very high levels of pain and Mr Wellington told him that his pain has not changed since August 2016;
(c)Mr Wellington qualifies for 10 points under Table 4 as he is unable to bend forward to pick up a light object placed at knee height; and
(d)Mr Wellington’s spinal condition is diagnosed treated and stabilised although he would benefit from further physiotherapy, which he has tried in the past; and
(e)there is no surgical option available.
[14] Exhibit 8, Report of Dr Simpson dated 21 September 2017.
Right Hip/Right Knee
In March 2016, Mr Wellington had an x-ray and ultrasound of his right hip which showed:[15]
Advanced osteoarthritic changes right hip joint with mild changes of gluteal tendinopathy.
[15] Exhibit 1, T Documents, T5, page 62, X-ray report dated 9 March 2016.
In July 2016, an x-ray of Mr Wellington’s right knee showed early degenerative changes.[16]
[16] Exhibit 1, T Documents, T6, page 63, X-ray report dated 26 July 2016.
Dr Simpson referred Mr Wellington to an orthopaedic surgeon in October 2016 and reports that Bundaberg Hospital categorised Mr Wellington as a category 3 (i.e. non-urgent) patient and indicated that it would be approximately 1 year before his orthopaedic appointment.[17]
[17] Exhibit 1, T Documents, T14, page 110, Report of Dr Simpson dated 22 February 2017
In January 2017, Dr Oliver Simpson, General Practitioner, reported that:[18]
[18] Exhibit 1, T Documents, T11, page 98, Report of Dr Simpson dated 31 January 2017.
(a)Mr Wellington has osteoarthritis in his right hip which was becoming more painful;
(b)the arthritis makes it acutely painful for Mr Wellington to walk or stand;
(c)Mr Wellington has a problem sitting on most chairs for any period of time;
(d)Mr Wellington uses a walking stick with crutches to move around;
(e)Mr Wellington is only out of pain when sitting in a reclining chair;
(f)Mr Wellington has tried several pain medications but only the Panadeine seems to have any effect for short periods;
(g)Mr Wellington has difficulty sleeping and wakes up several times a night;
(h)Mr Wellington is unable to do simple tasks like putting on shoes and socks; and
(i)Mr Wellington was waiting to see orthopaedic surgeon to discuss knee and hip replacement surgery but has been advised that it will take at least one year before he is able to get an appointment.
In February 2017, Dr Simpson reported that:[19]
(a)Mr Wellington’s osteoarthritis was currently stable but was extremely painful and can only be treated definitively by surgery;
(b)in his opinion it was unlikely, given the public hospital wait list times, that Mr Wellington would be treated and stabilised within 2 years.
[19] Exhibit 1, T Documents, T14, page 110, Report of Dr Simpson dated 22 February 2017.
In September 2017, Mr Wellington was seen by Dr Tendai Muchedzi, Orthopaedic PHO, who reported that Mr Wellington:[20]
[20] Exhibit 14, Report of Dr Muchedzi dated 6 October 2017.
(a)reported that:
(i)his pain is worse in his right knee than his left knee and is worse on standing and walking;
(ii)he cannot walk more than 100 metres because of pain;
(iii)he is not able to do his activities of daily living because of his pain which is now affecting his quality of life;
(iv)his pain is controlled by Panadeine Forte which he has to use for mobilising;
(v)is having sleep disturbance and mechanical symptoms in the knee with a sense of instability;
(vi)he has been seen by a physiotherapist but does not have much improvement;
(vii)he has had corticosteroid injections which did not help with his pain;
(b)has difficulties with standing and an antalgic gait using a stick;
(c)shows no deformity in his right knee with a range of motion from zero – 180°;
(d)has varicose veins and telangiectasia;
(e)has reduced range of motion in his right hip and a fixed external rotation of 30° and a stiff internal and external rotation; and
(f)will need a right total hip replacement and that, because he has a high BMI and is an anaesthetic risk, he had been referred to see Dr Konopka, Anaesthetist, to provide a recommendation.
Morbid obesity
In July 2017, Dr Simpson reported that Mr Wellington is morbidly obese and that while he has lost some weight after seeing a dietician, he is unlikely to lose enough weight to have any great effect on his health in the immediate future.[21]
[21] Exhibit 1, T Documents, T2, pages 9 – 10, Report of Dr Simpson dated 5 July 2017.
Other
In December 2017, Dr Simpson reported that Mr Wellington was diagnosed with Type 2 Diabetes and Paroxysmal Atrial Fibrillation in October 2017. Mr Wellington also suffers from hypertension and gout, but Mr Wellington told the Tribunal that these conditions have been treated by medications and are not relevant to this application.[22]
[22] This is confirmed by Dr Simpson – Exhibit 1, T Documents, T11, page 98, Report of Dr Simpson dated 31
January 2017
Conclusion on Impairments
The Secretary accepts that Mr Wellington suffered from physical impairments for the purposes of section 94(1)(a) during the Qualification Period.[23]
[23] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 10 November 2017, para 4.24.
Given the medical evidence, the Tribunal finds that Mr Wellington suffered from a Spinal Impairment and Right Hip/Right Knee Impairment for the purposes of section 94(1)(a) of the Act during the Qualification Period.
While the Tribunal accepts that Mr Wellington also has Type 2 Diabetes and Paroxysmal Atrial Fibrillation, because the diagnosis of these conditions was made approximately 12 months after Qualification Period, they cannot be considered for the purposes of this DSP application.
The Tribunal also acknowledges that Mr Wellington suffers from obesity. However, there is insufficient evidence to corroborate whether this condition was fully stabilised or fully treated during the Qualification Period. There is also limited evidence regarding how this condition specifically impacted on Mr Wellington’s ability to function during the Qualification Period. As a result, this condition cannot be considered for the purposes of this application.
DO MR WELLINGTON’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.[24] They are function based[25] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[26]
[24] Determination, s 4(2) and 5(2)(a).
[25] Determination, s 5(2)(b) and (c).
[26] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to Mr Wellington’s impairments if:[27]
(a)Mr Wellington’s conditions causing the impairments are permanent; and
(b)the impairments that result from those conditions are more likely than not, in light of available evidence, to persist for more than 2 years.
[27] Determination, see s 6(3).
Mr Wellington’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[28]
(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.
[28] 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”[29], the following must be considered:[30]
(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.
[29] For the purposes of ss 6(4)(a) and (b) of the Determination.
[30] Determination, see s 6(5).
A condition is “fully stabilised”[31] 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;[33] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[31] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[32] Determination, see s 6(6).
[33] 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, the Tribunal must first consider Mr Wellington’s medical history, in relation to the conditions causing the Impairments.[34]
[34] Determination, see s 6(2).
SPINAL IMPAIRMENT
Is Mr Wellington’s Spinal Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr Wellington’s Spinal Impairment is fully diagnosed. This is conceded by the Secretary.[35]
[35] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 10 November 2017, para 4.40.
However, the Secretary contends that Mr Wellington’s Spinal Impairment is not fully treated and fully stabilised because there is no corroborating medical evidence of what treatment, aside from analgesics, has been undertaken by Mr Wellington to treat the condition, nor is there any evidence regarding whether any treatment is planned or whether any treatment is likely to result in significant functional improvement.[36]
[36] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 10 November 2017, para 4.41-4.43.
The Tribunal notes that the Secretary was unable to identify what treatment, for osteoarthritis of the spine, would be likely to significantly improve Mr Wellington’s ability to function.
The evidence indicates that Mr Wellington has treated his degenerative osteoarthritis in the spine with anti-inflammatories and has in the past had physiotherapy. The Secretary contended in written submissions that while Dr Simpson reports that physiotherapy took place in the past, there is no evidence that that therapy was specifically for his spinal arthritis or how many sessions were undertaken. If the Secretary wished to dispute the report of Dr Simpson, it was open to the Secretary to require Dr Simpson to be available for cross-examination. At the hearing, Mr Kyranis, for the Secretary, told the Tribunal it was not disputed that Mr Wellington had had physiotherapy in the past. The Tribunal sees no reason to doubt the reporting of Dr Simpson in relation to what treatment Mr Wellington has had for this condition. Further, the condition suffered by Mr Wellington is degenerative and is only likely to get worse.
The Tribunal finds that Mr Wellington Spinal Impairment is permanent for the purposes of the Act and an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Wellington’s Impairment has to be assessed against the descriptors[37] (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).[38]
[37] Determination, see ss 3 and 5(3).
[38] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of 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.[39]
[39] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[40]
(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.
[40] Determination, see s 7.

The Tribunal must not take into account the following information in applying the Tables:[41]
(a)symptoms reported by Mr Wellington 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 Wellington’s local community.
[41] Determination, see s 8.
Which Tables are appropriate are determined by:[42]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[42] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[43]
[43] Determination, see s 10(3).
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.[44]
[44] 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.[45]
[45] 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.[46]
[46] Determination, see s 11(5).
Relevant Impairment Table
Table 4 of the Determination, which deals with spinal function, is the relevant Table.
The Introduction to Table 4 of the Determination provides:
·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.
·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 purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
To obtain a five-point rating the corroborating evidence would need to show that

Mr Wellington has some difficulty in:
(a)activities over head height (e.g. activities requiring Mr Wellington to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning his trunk or moving his head (e.g. to look to the sides or upwards).
To obtain a 10-point rating the corroborating evidence would need to show that

Mr Wellington is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)he is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)he has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder), or
(c)he is unable to bend forward to pick up a light object placed at knee height; or
(d)he needs assistance to get up out of a wheelchair (if not independently mobile in a wheelchair).
To obtain a 20-point rating the corroborating evidence would need to show that

Mr Wellington is unable to:
(a)perform any overhead activities; or
(b)turn his head, or bend his neck, without moving his trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
Evidence of impact on function and Impairment Rating
Mr Wellington contends that his Spinal Impairment is having a moderate impact on his ability to function and warrants a 10-point rating under Table 4. The Secretary submits that there is no evidence before the Tribunal in relation to the functional impairment of the spine as distinct from any functional impairment due to Mr Wellington’s lower limb conditions.[47]
[47] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 10 November 2017, para 4.44.
There is certainly evidence from Dr Simpson in his reports of January 2017, July 2017 and September 2017 which refers to functional impacts. However, Dr Simpson does not specify the functional impacts solely related to the Spinal Impairment until the September 2017 report where he states that Mr Wellington, in his opinion, qualifies for 10 points under Table 4 as he is unable to bend forward to pick up a light object placed at knee height. The difficulty the Tribunal has with this evidence is that it is nearly 12 months after the Qualification Period. Dr Simpson does not say in his September 2017 report that he is referring to Mr Wellington’s functional ability during the Qualification Period. In April 2017, Dr Simpson answered a Basic Rights Queensland questionnaire.[48] In that report, Dr Simpson refers to Tables 1 and 3. Table 1 of the Determination is concerned with physical exertion and stamina and Table 3 is concerned with lower limb function. Dr Simpson makes no reference at all to Table 4. The inference that can be drawn from Dr Simpson’s reports is that the main conditions that affect Mr Wellington’s ability to function are his Hip and Knee Impairments.
[48] Exhibit 1, T Documents, T 16, pages 116-118, Basic Rights Queensland Questionnaire completed by Dr Simpson
dated 3 April 2017.
The JCA report of February 2017 also does not specifically address Mr Wellington’s Spinal Impairment and addresses all of Mr Wellington’s osteoarthritic issues of the back, hip and knee together.[49] The JCA report does record that Mr Wellington told them he can bend over to pick something light up off the floor, albeit in pain, can drive a car without difficulty (which the Tribunal notes would require the ability to turn his head) and only occasionally requires his wife’s assistance to clean his feet.[50]
[49] Exhibit 1, T Documents, T 12, pages 100 – 101, JCA report dated 16 February 2017.
[50] Exhibit 1, T Documents, T12, page 101, JCA Report dated 16 February 2017.
The difficulty for the Tribunal is that there is no corroborative medical evidence verifying the level of functional impairment resulting from Mr Wellington's Spinal Impairment alone during the Qualification Period. The introduction to Table 4 specifically provides that self-report of symptoms alone is insufficient. The September 2017 report of Dr Simpson, which does specifically address the functional impact under Table 4, is 11 months after the Qualification Period. The fact that Dr Simpson indicates 10 points in September 2017 is indicative of the fact that this condition had worsened since February 2017 when the JCA was undertaken.
In the circumstances, the highest Impairment Rating that could be given regarding the impact of Mr Wellington’s Spinal Impairment on his ability to function during the Qualification Period is 5 points.
RIGHT HIP/RIGHT KNEE IMPAIRMENTS
Are Mr Wellington’s Hip and knee Impairments permanent and likely to persist for at least 2 years?
The Secretary contends that Mr Wellington's Hip and Knee Impairments were fully diagnosed but not fully treated or stabilised during the Qualification Period because knee and hip surgery was pending, and he was waiting to see an orthopaedic surgeon.[51]
[51] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 10 November 2017, para 4.26.
Mr Wellington was first seen by an orthopaedic surgeon in September 2017, a year after the Qualification Period. At this stage, Mr Wellington has not yet had any surgery nor is there any indication of when the surgeries are likely to take place. Although Mr Wellington has had to be referred to an anaesthetist because he is at a high risk given his BMI.[52]
[52] Exhibit 5, Progress Notes Bundaberg Hospital dated 7 November 2017; Exhibit 14, Report of Dr Muchedzi dated
6 October 2017.
According to the Determination, in order for treatment to be reasonable treatment the treatment must:
(a)be available at a location reasonably accessible to the person; and
(b)be at a reasonable cost;
(c)reliably be expected to result in a substantial improvement in functional capacity; and
(d)be regularly undertaken or performed; and
(e)have a high success rate; and
(f)carries a low risk to the person.
While there is evidence that the surgery that has been recommended may carry more than a low risk, there is insufficient evidence, and no evidence from an anaesthetist, regarding that potential risk. The Bundaberg Hospital records confirm that there is no record of Mr Wellington having made an appointment to see an anaesthetist to date and therefore a surgery referral has not been made and Mr Wellington has not been categorised (in terms of urgency).[53] However, Mr Wellington told the Tribunal that he had had one appointment with an anaesthetist and was scheduled to see him again the day after the hearing and the surgeon the following week. Mr Wellington said the surgeon told him that his hip surgery would likely take place approximately 6 months after his anaesthetic appointment (i.e. in or about July 2018). This would mean that reasonable treatment for his hip is likely to take within 2 years of the date of his claim. The Tribunal also notes that the evidence provided by the Secretary shows that the median wait time for orthopaedic surgery at Bundaberg base hospital is 61 days and that 90% of all patients have surgery within 194 days.[54] While this statistical information relates to wait times for surgery as at September 2017, 11 months after the Qualification Period, there is nothing to indicate that they cannot be relied on as a guide to the likely waiting times as at the Qualification Period.
[53] Exhibit 5, Letter from Bundaberg Rural Health Services Medico-Legal Support Officer dated 9 November 2017.
[54] Exhibit 3, Queensland Health Bundaberg Hospital Performance records.
What is not clear, however, is whether both surgeries could have occurred within 2 years. Mr Wellington explained that the surgeon has not yet determined whether knee surgery is required and that it depends on the level of functional improvement he has post his hip surgery. The Tribunal notes that the surgeon has made no reference in his reports to Mr Wellington requiring knee surgery at this stage.
Certainly, factors in the definition of what constitutes reasonable treatment would be met in relation to the proposed surgeries for Mr Wellington. In the circumstances, the Tribunal finds the suggested treatment is reasonable in the circumstances and notes that Dr Simpson reported in January 2017 that without surgery Mr Wellington’s arthritis would only get worse. There is no corroborating evidence that this treatment should not be undertaken or that it will be unlikely to result in significant functional improvement within the next two years.
During the Qualification Period, Mr Wellington had not been treated and had not yet had specialist review. It was not known at that stage whether surgery would be the recommended treatment. The Determination provides that even if reasonable treatment has not occurred, a condition will still be considered to be “fully stabilised”[55] if[56] 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.[57]
[55] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[56] Determination, see s 6(6).
[57] For reasonable treatment see s 6(7) of the Determination.
Dr Simpson did not expect that Mr Wellington would have been fully treated and stabilised within 2 years of the Qualification Period. In the circumstances, the Tribunal agrees that this was a reasonable expectation. It was not even known during the Qualification Period whether surgery was an option for Mr Wellington. Further, it is reasonable to expect that both surgeries, given the recovery periods that would inevitably be required, would not have occurred at the same time. Therefore, given the wait times for surgery, it is clear that both of these conditions would not have been expected to be treated such that a significant functional improvement to a level enabling Mr Wellington to undertake work would result within the next 2 years. The Tribunal notes that this is also the conclusion that was reached by the ARO. The Tribunal has to consider the Impairments during the Qualification Period, not with the benefit of hindsight.
In the circumstances, the Tribunal finds that Mr Wellington’s Hip and Knee Impairments were permanent for the purposes of the Act during the Qualification Period. Therefore, an Impairment Rating is able to be assigned to these conditions.
Relevant Impairment Table
Table 3 of the Determination, which deals with lower limb function, is the relevant Table.
The Introduction to Table 3 of the Determination provides:
·Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·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:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table lower limbs extend from the hips to the toes.
The Secretary submitted that a 10-point rating under Table 3 was appropriate in the event that Mr Wellington’s Hip and Knee Impairments were found to be permanent.[58]
[58] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 10 November 2017, para 4.36.
To obtain a 10-point rating, the evidence would have to show that:
(1)At least one of the following applies:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b)      the person is unable to use stairs or steps without assistance; or
(c)      the person is unable to stand for more than 5 minutes; and
(2)The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3)This impairment rating level includes a person who can:
(a)move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note:     The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
To obtain a 20-point rating, the evidence would have to show that:
(1)The person:
(a)      is unable to do any of the following:
(i)walk around a shopping centre or supermarket without assistance;
(ii)walk from the carpark into a shopping centre or supermarket without assistance;
(iii)stand up from a sitting position without assistance; and
(b)      requires assistance to use public transport.
(2)This impairment rating level includes a person who requires assistance to:
(a)move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b)      move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Evidence of impact on function and Impairment Rating
In January 2017, Dr Oliver Simpson, General Practitioner, reported that:[59]
·the arthritis makes it acutely painful for Mr Wellington to walk or stand;
·Mr Wellington has a problem sitting on most chairs for any period of time;
·Mr Wellington uses a walking stick with crutches to move around;
·Mr Wellington is only out of pain when sitting in a reclining chair;
·Mr Wellington has difficulty sleeping and wakes up several times a night;
·Mr Wellington is unable to do simple tasks like putting on shoes and socks; and
[59] Exhibit 1, T Documents, T11, page 98, Report of Dr Simpson dated 31 January 2017.
In April 2017, Dr Simpson answered a Basic Rights Queensland questionnaire and reported that during the Qualification Period Mr Wellington’s impairments warranted an Impairment Rating of 20 points under Table 3. However, one of the requirements for an Impairment Rating of 20 points is that a person cannot stand up from a sitting position without assistance. Dr Simpson reported that Mr Wellington can stand up from a sitting position if the chair has arms.[60] Mr Wellington confirmed that this is correct at the hearing. Therefore, a 20-point rating is inappropriate.
[60] Exhibit 1, T Documents, T 16, pages 116-118, Basic Rights Queensland Questionnaire completed by Dr Simpson
dated 3 April 2017.
Given the medical evidence available around the Qualification Period, the Tribunal finds that an appropriate Impairment Rating under Table 3 is 10 points.
Mr Wellington also contended that he should be awarded an Impairment Rating under Table 1. Dr Simpson indicated in the Basic Rights Queensland questionnaire that 20 points was appropriate under Table 1. The Tribunal acknowledges that Mr Wellington’s pain causes him to not be able to undertake activities for long periods. The Secretary contends that Table 1 is inappropriate because the consideration under Table 3 has already taken into account the impact of pain and fatigue.
The introduction to Table 1 provides that chronic pain is a condition commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina.
To obtain an Impairment Rating of 20 points under Table 1, the evidence would need to show that:
(1)The person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

In July 2017, Dr Simpson reported that Mr Wellington:[61]
(a)cannot walk around a shopping centre, or from a carpark into a shopping centre because of the pain and has shortness of breath when walking any distance;
(b)cannot use public transport without assistance;
(c)is unable to climb steps into a bus or onto a train platform;
(d)is unable to perform light household duties because of the pain of standing or walking for short periods;
(e)would not be able to sustain a work-related activity for 3 hours because he cannot stand for long and is unable to sit in a normal fixed chair for more than 20 minutes without suffering severe back and leg pain.
[61] Exhibit 1, T Documents, T2, pages 9 – 10, Report of Dr Simpson dated 5 July 2017.
The JCA report in February 2017 records that Mr Wellington told them he:[62]
(a)cannot walk more than 3-4 minutes;
(b)tends to weight bear on his left leg when standing and can stand for about 3-4 minutes;
(c)can sit in a regular chair for about an hour, and longer in a recliner; and
(d)can drive a car without difficulty.
[62] Exhibit 1, T Documents, T12, page 101, JCA Report dated 16 February 2017.
It would seem there has been a deterioration in Mr Wellington’s condition between February 2017, when he said he could sit for an hour, and July 2017, when Dr Simpson reported he could only sit for 20 minutes.
Pursuant to the Determination, chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected. The Determination also provides that:
(a)where two or more 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; and
(b)where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
The reason for Mr Wellington’s difficulties, as outlined by Dr Simpson, and the associated pain, is due to his Hip and Knee Impairment. An Impairment Rating has already been assigned under Table 3 for these Impairments. Therefore, it is inappropriate to assign an Impairment Rating under Table 1.
WERE MR WELLINGTON’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. Mr Wellington does not qualify for DSP because his permanent Impairments have only been assigned a 15 point Impairment Rating.
DID MR WELLINGTON HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As the Tribunal has found that Mr Wellington’s Impairments were either not permanent or did not attract a 20-point Impairment Rating during the Qualification Period, it is not necessary to consider whether Mr Wellington had a “continuing inability to work” (as defined in section 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Mr Wellington’s claim fails because he did not qualify for DSP at the Qualification Period.
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 Member D K Grigg

.......................[Sgd].................................................
Associate
Dated: 24 January 2018

Date of hearing: 16 January 2018

Applicant: By phone

Advocate for the Respondent: Jake Kyranis

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 70

24 January 2018

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Date of hearing:	16 January 2018
Applicant:	By phone
Advocate for the Respondent:	Jake Kyranis
Solicitors for the Respondent:	Sparke Helmore Lawyers