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

Wenzler and Secretary, Department of Social Services (Social services second review) [2018] AATA 2572 (27 July 2018)
Division:GENERAL DIVISION
File Number: 2017/4157
Re:Anthony Wenzler
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:27 July 2018
Place:Brisbane

The Tribunal affirms the decision under review.
......................[SGD].............................................
Senior Member P J Clauson
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Refusal – Cervical Spinal Condition – Lumbar Spine Condition – Anxiety Condition – Migraine Condition - whether impairments are of 20 points of more under the Impairment Tables – Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P J Clauson
27 July 2018
INTRODUCTION

On 3 May 2016, Mr Anthony Wenzler (“Applicant”) applied for the Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T21, pages 99-128, Claim for DSP, dated 3 May 2016.
On 25 August 2016, the Department of Human Services (“Centrelink”) advised the Applicant that his application had been rejected.[2] Subsequent to this, an Authorised Review Officer (“ARO”) conducted a review of Centrelink’s decision and affirmed it.[3]
[2] Exhibit 1, T Documents, T 28, pages157-158, Rejection of DSP, dated 25 August 2016.
[3] Exhibit 1, T Documents, T31, pages 161-164, ARO Decision, dated 17 October 2016.
On 12 June 2017, the Applicant sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and the original decision was once more affirmed.[4]
[4] Exhibit 1, T Documents, T3, pages 12-21, Decision of the Social Services & Child Support
Division, dated 12 June 2017.
Following this, the Applicant sought a second tier review of his matter by the General and Other Divisions of this Tribunal, by way of an Application dated 12 July 2017.[5]
[5] Exhibit 1, T Documents, T2, pages 3-11, Application for Review, dated 12 July 2017.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP and did not have an inability to work.
On 29 March 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 3 May 2016, or within 13 weeks thereafter, being up until 2 August 2016 (“Relevant Period”). This date of claim is agreed between the parties and the Tribunal accepts this date.
BACKGROUND
On the Applicant’s DSP Claim Form he listed the following disabilities, illnesses or injuries:
“Sustained acute and chronic injury to lower back in 1993. I received a TPD payment in 1995. (Centrelink was notified). The fracture in L5 is compounded by a total colapse (sic) and failure of the L5/S1 disk (sic) (prolapse). L4/5 and L3/4 are herniated”.[6]
[6] Exhibit 1, T Documents, T21, page 124, Claim for DSP, dated 3 May 2016.
ISSUES
The issues for this Tribunal to consider are:
(a)whether during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;
(b)whether at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
Before I consider the particular issues raised by The Applicant’s application, it is worthwhile to reflect on the relevant, key legislative provisions.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991

(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
In order for the Applicant to qualify for the DSP, certain relevant criteria set out in section 94 of the Act, must be met:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified 13 weeks following the date of claim.[7] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[8]
[7] Administration Act s 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[8] Bobera and Secretary, Department of Families, Housing, Community Services and
Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)

(“the Impairment Determination”).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[9] Essentially, the Tables are function based, rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[11]
[9]         Impairment Determination, s 5(1) – (2).
[10]        Impairment Determination, s 5(2).
[11]        Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[12]
[12] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider 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 is planned in the next two years.[13]
[13] Impairment Determination, s 6(5).
A condition will be considered fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 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.[14]
[14] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the Applicant.[15]
[15] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[16]
[16] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[17]
[17] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant suffers from Cervical Spine, Lumbar Spine, Anxiety and Migraine conditions and it is not in dispute that he has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[18] The questions to be determined by this Tribunal are however, whether or not during the Relevant Period those impairments attracted an impairment rating of 20 points or more under the Impairment Tables,[19] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[18] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, paragraph 5.10, dated
27 February 2018.
[19] The Act, s 94(1)(b).
I will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
I address this question by reference to each of The Applicant’s conditions as outlined in brief below.
Cervical Spine
The Respondent contends that the Applicant’s Cervical Spine condition was fully diagnosed, but not fully treated or fully stabilised during the Relevant Period. The Tribunal has had regard to the material before it and the evidence provided by the Applicant himself at the hearing regarding his Cervical Spine condition. The Tribunal notes that this material has largely been produced outside of the Relevant Period.
On 25 May 2016, the Applicant had a CT scan of his cervical spine which revealed the following:
Gross left side C4/5 facet joint arthropathy, causing left foraminal stenosis with no obvious neural compromise. Bilateral foraminal stenosis C5/6 level with almost certain compromise of the exiting C6 nerve roots, more marked on the right. Non neurocompressive disc/osteophyte complex C6/7 level.[20]
[20] Exhibit 1, T Documents, T23, page 131, CT scan of Cervical and Lumbar Spine, dated 25
May 2016.
On 26 July 2017, Dr Carey, an Orthopaedic Surgeon, produced a report and explained that he had seen the Applicant and treated him for a workplace injury in 1994, saw him again in 1995 and 1999 and had not seen him since that time.[21] Regarding the Applicant’s Cervical Spine condition, Dr Carey reported that:
It is unlikely that reasonable treatments for his neck condition (cervical spondylosis) will result in a significant improvement in his level of impairment within 2 years. This problem has been ongoing for many years, and is not amenable to interventional pain management or surgery.[22]
[21] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Carey, dated 26 July 2017.
[22] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Carey, dated 26 July 2017
On 2 June 2017, Mr Bergin, a Musculoskeletal Physiotherapist, produced a report and stated that he had examined the Applicant’s cervical spine on 17 March 2017.[23] Mr Bergin provides in his report the Applicant’s self-reported history of the condition:
Tony reported neck pain of a gradual onset through 2012 while working as a Labourer at a sugar mill in Queensland. He worked for the 6 months season and then in 2013 returned for another 6 months season of work and experienced further increases in his neck pain and restricted cervical mobility.[24]
[23] Exhibit 2, Report from Physio West: Mr David Bergin, dated 2 June 2017.
[24] Exhibit 2, Report from Physio West: Mr David Bergin, dated 2 June 2017.
Mr Bergin speaks about the Applicant’s CT scan and states that the examination he performed on the Applicant on 17 March 2017 “confirmed restricted cervical mobility”, further stating that it is his conclusion that the findings were consistent with the subjective reporting of symptoms and the functional restriction the Applicant was describing.[25]
[25] Exhibit 2, Report from Physio West: Mr David Bergin, dated 2 June 2017.
On 24 August 2016, the Applicant reported to the JCA that, prior to the CT scan conducted on 25 May 2016, he was unaware of changes to his neck. The Applicant reported to the JCA that he had experienced:
… some increasing neck pain, stiffness and headaches over time, however this the first he was aware of any specific issues relating neck separate to his long-term lower back injury (sic).[26]
[26] Exhibit 1, T Documents, T27, page 153, JCA Report, dated 24 August 2016.
The Applicant refuted the JCA’s comment, he stated that it was more accurate to say that:
this was the first specific imaging showing the issues related to my neck. I have known for a long time, since childhood, that I cannot turn my head sharply to the right. I always sit on the right side of a bus since school days because I cannot turn my head sharply to the right.[27]
[27] Applicant’s Oral Evidence from the Hearing.
The Applicant contended at the hearing that Dr Carey’s report dated 26 July 2017 confirms that, despite the date of the report, his Cervical Spine condition was fully diagnosed, fully treated and fully stabilised. Further, the Applicant stated that when he was four years old he had fallen from the roof of his parent’s house. The Applicant was unable to say whether this incident related to his issues with his spine in later life, but that he felt as though he had an excessively arched back and dropped shoulder as a child and that these issues are still persisting. The Applicant described his condition as a “cat’s hunch”.
The Applicant went on to say that he had tried “various supports and back braces to correct the condition” during his teenage years, but was unable to say with certainty whether his Spinal condition had any bearing on his later work injury relating to his lower spine.
The Applicant also stated that he has undertaken a long-haul overseas flight to the United States of America in 2016. He also stated that he and his wife were going to repeat this trip in July 2018.
The issue for the Tribunal is that the Applicant has been unable to produce medical evidence to corroborate that this childhood incident occurred and had caused his Cervical Spine condition. Further, the reports of Dr Carey and Mr Bergin do not provide sufficient weight to establish that the Cervical Spine condition was fully treated and fully stabilised during the Relevant Period.
I find that the Applicant’s Cervical Spine condition was fully diagnosed, but not fully treated or fully stabilised during the Relevant Period. As such, I am unable to assign the condition an Impairment Rating.
Lumbar Spine Condition
The Respondent conceded that the Applicant’s Lumbar Spine condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the medical evidence before me, I find that this concession is appropriate.
On 17 May 1994, Dr Carey saw the Applicant for an “acute left sciatica which is resolving…superimposed on a past history of chronic backache”. Dr Carey stated that the:
x-rays showed a deteriorated L5-S1 disc and a possibly deteriorated L4-5 as well, and the C.T. shows a large sessile herniation central/left sided at L5-S1 producing some displacement of the left SI nerve root.[28]
[28] Exhibit 1, T Documents, T6, pages 63-64, Report of Dr Carey, dated 17 May 1994.
Dr Carey reported that the Applicant’s condition was settling and he recommended against further passive treatments. Dr Carey indicated that he would review the Applicant in a month’s time, and in the event that the Applicant’s leg pain recurred, the Applicant could be given an epidural and in the future may require a lumbar discectomy.[29]
[29] Exhibit 1, T Documents, T6, pages 63-64, Report of Dr Carey, dated 17 May 1994.
On 17 June 1994, Dr Carey reported that the Applicant’s sciatica had completely settled, but that he was still experiencing back discomfort. Dr Carey stated that he had discussed with the Applicant the difficulties he would face returning to work as a concreter with his chronic back pain.[30]
[30] Exhibit 1, T Documents, T7, page 65, Report of Dr Carey, dated 17 June 1994.
On 22 December 1994, Dr Carey described the Applicant’s back pain as unchanged and noted that surgical treatment would improve his discomfort, but would not improve his capacity for work, specifically concreting.[31]
[31] Exhibit 1, T Documents, T10, page 70, Report of Dr Carey, dated 22 December 1994.
By 13 October 1999, Dr Carey was recommending against discectomy or other surgical treatment options. Dr Carey recommended that the Applicant be referred to an appropriate rehabilitation program, such as “Back Focus”, but stated that he would review him again in December.[32]
[32] Exhibit 1, T Documents, T16, page 84, Report of Dr Carey, dated 13 October 1999.
There is then a gap in the medical evidence relating to the Applicant’s Lumbar Spine condition. On 25 May 2016, the Applicant had a CT scan of his lumbar spine which revealed the following:
Broad based L3/4 disc protrusion with minor central canal stenosis. Left paracentral and lateral L4/5 disc protrusion, exhibiting mild mass effects on the exiting left L4 nerve root. Central and left paracentral L5/S1 disc protrusion, exhibiting mild mass effect on the forming left S1.[33]
[33] Exhibit 1, T Documents, T23, page 131, CT scan of Cervical and Lumbar Spine, dated 25
May 2016.
On 2 June 2017, Mr Bergin reported that he had seen the Applicant on 15 July 2003, and had assessed the two MRI’s the Applicant had of his Lumbar Spine (3 March 2017 and

8 October 1999) and there had been no significant change in the Applicant’s Lumbar Spine condition.[34]
[34] Exhibit 2, Report from Physio West: Mr David Bergin, dated 2 June 2017; Exhibit 1, T
Documents, T14, page 81, MRI Lumbar Spine Report, dated 8 October 1999
Based on this evidence, I am satisfied that the Applicant’s Lumbar Spine condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period.
The Rules to the Impairment Tables require that when using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for that same impairment must not be assigned under more than one Table.[35]
[35] Impairment Determination, s 10(4).

The Secretary has conceded that the Applicant’s Lumbar Spine condition not only affects the Applicant’s Spinal Function,[36] but also the Applicant’s Lower Limb Function.[37] Based on the corroborating medical evidence before me, I find that this concession is appropriate.[38]
[36]        Impairment Determination, Table 4.
[37]        Impairment Determination, Table 3.
[38]        Impairment Determination, s 10(3).
I will now speak about the functional impact of the Applicant’s Lumbar Spine condition with reference to Table 3 and Table 4 of the Impairment Determination only.[39]
[39] Impairment Determination, s 10(4).
Functional Impact – Lower Limb
The Table that relates to the effects of the Applicant’s Lumbar Spine condition is Table 3. The Introduction to Table 3 states that:
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.[40]
[40] Impairment Determination, Introduction to Table 3.
The Rules for applying the Impairment Tables emphasise that the Tables may only be applied to a person’s impairment after their medical history, in relation to the condition causing the impairment, has been considered.[41]
[41] Impairment Determination, s 6(2).
The Applicant saw Dr Carey on 26 July 2017 and he addressed the Applicant’s sciatica in his report. Dr Carey stated that it was unlikely that reasonable treatments for his sciatica would result in a significant improvement in his level of impairment within 2 years and that there was no interventional pain management or surgical interventions that would be helpful to the Applicant. Dr Carey recommended an Impairment Rating of 10 points under Table 3.[42]
[42] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Carey, dated 26 July 2017.
On 21 July 2016, Dr Babar, General Practitioner, completed a DSP medical report.[43]

Dr Babar noted that of the Applicant’s conditions, Lumbar Spine Disc Prolapse – L4/5/S1 was causing the most impact on the Applicant’s ability to function. Dr Babar noted that the impact of the condition on the Applicant’s ability to function would persist for more than

24 months and that the effect of the condition was uncertain.[44] Dr Babar noted that the Applicant was experiencing chronic lower back pain that was constant and deteriorates when the Applicant sits for an extended period of time.[45] Dr Babar also noted that the Applicant experiences numbness and tingling in his foot. Dr Babar further noted that the Applicant’s condition was affecting his ability to mobilise and function, specifically his ability to walk, bend, sit and lift.[46]
[43]        Exhibit 1, T Documents, T25, pages 135-145, DSP Medical Report completed by Dr Babar,
dated 21 July 2016.
[44]        Exhibit 1, T Documents, T25, pages 135-145, DSP Medical Report completed by Dr Babar,
dated 21 July 2016.
[45]        Exhibit 1, T Documents, T25, page 139, DSP Medical Report completed by Dr Babar,
dated 21 July 2016.
[46]        Exhibit 1, T Documents, T25, page 140, DSP Medical Report completed by Dr Babar,
dated 21 July 2016.
The Applicant provided an undated medical report from Dr Babar in support of his application for review.[47] Dr Babar has been seeing the Applicant since 27 January 2016 and with reference to his medical history available at the ‘121 Medical Center’, Dr Babar commented on the Applicant’s lower limb function:
….restricted range of movement in his lumbar spine. He reports the pain goes to his left leg. The recent CT scan shows L4/5/S1 disc protrusion and the symptoms are likely to continue.[48]
[47] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
[48] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
In this undated medical report, the Applicant has provided comments about the functional impact of his condition in relation to Table 3. The Applicant has stated:
I have an ongoing problem walking. I am able to walk on level ground at my own pace, but I have great difficulty with any incline. I do not wish to use a walking stick just yet. If I stand for any length of time, I will lean against something or prop myself somehow.[49]
[49] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
On 21 September 2016, Dr Strong, General Practitioner, reported that the Applicant’s lower back pain and sciatica resulted from a back injury in 1994 and that it was permanent and likely to deteriorate within the next 2 years. Dr Strong further noted that the condition meant that the Applicant was unable to walk long distances, had difficulty walking uphill and that he frequently has to lie flat to alleviate the pain.[50]
[50] Exhibit 1, T Documents, T29, page 159, Medical Certificate completed by Dr Strong, dated
21 September 2016.
On 17 August 2016, the Applicant attended a JCA by telephone and reported to the JCA that the impact of his Lumbar Spine condition were as follows:[51]
·difficulty walking, bending and sitting;
·able to independently mobilise; and
·able to stand for at least 10 minutes.
[51] Exhibit 1, T Documents, T27, page 154, JCA Report, dated 24 August 2016.
The Applicant reported to the SSCSD that he:[52]
·is able to walk on flat surfaces;
·is unable to kneel or squat and rise back to a standing position;
·is unable to stand unaided for at least 10 minutes;
·is able to stand unaided for 5 minutes; and
·has difficulty using stairs.
[52] Exhibit 1, T Documents, T3, page 19, Decision of the Social Services & Child Support
Division, dated 12 June 2017.
The SSCSD found that the Applicant’s Lumbar Spine condition attracted an Impairment Rating of 5 points under Table 3. The Applicant contends that the appropriate rating for his Lumbar Spine condition is 10 points under Table 3.[53] The Secretary contends that the appropriate rating is 0 points under Table 3.[54]
[53] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
[54] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018, paragraph 5.33.
Table 3 of the Impairment Determination provides the following descriptors for 5 points to be considered appropriate:[55]
[55]        Impairment Determination, Table 3.
(1)        At least one of the following applies:
(a)        the person has some difficulty walking to local facilities (e.g. shops
or bus-stop); or
(b)        the person has some difficulty walking around a shopping mall or
supermarket without a rest; or
(c)        the person has some difficulty climbing stairs; and
(2)        At least one of the following applies:
(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
prosthesis or a walking stick.
In the Relevant Period, the Applicant has provided corroborating medical evidence to indicate that his Lumbar Spine condition affects his ability to mobilise and walk, but that he is able to stand for at least 10 minutes.[56] At the hearing, the Applicant explained that he is independently mobile and has resisted using a walking stick. In the Relevant Period, no corroborating medical evidence was produced to indicate that the Applicant satisfied

2(a)-(b) of the 5 points descriptors under Table 3.
[56] Exhibit 1, T Documents, T25, page 140, DSP Medical Report completed by Dr Babar,
dated 21 July 2016; T29, page 159, Medical Certificate completed by Dr Strong, dated 21 September 2016.
Based on the evidence before me, I am not satisfied that the evidence supports a finding that the Applicant attracts a rating of 5 points under Table 3 for his Lower Limb condition.
I therefore assign the Applicant’s Lower Limb condition an Impairment Rating of 0 points under Table 3 of the Impairment Determination.
Functional Impact – Spinal Function
The Table that relates to the Applicant’s Spinal condition is Table 4. The Introduction to Table 4 states the following:
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.[57]
[57] Impairment Determination, Introduction to Table 4.
On 26 July 2017, Dr Carey provided in his report that:[58]
It is unlikely that reasonable treatments for Tony’s back condition (lumbar spondylosis) will result in a significant improvement in his level of impairment within 2 years. This problem has been ongoing for many years, and is not amenable to interventional pain management or surgery.
It is unlikely that reasonable treatments for his neck condition (cervical spondylosis) will result in a significant improvement in his level of impairment within 2 years. This problem has been ongoing for many years, and is not amenable to interventional pain management or surgery.
[58] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Carey, dated 26 July 2017.
As discussed previously at paragraph 57, the Applicant saw Dr Babar on 21 July 2016 and was diagnosed with a Lumbar Spine Disc Prolapse – L4/5/S1 condition.[59] Dr Babar noted that the Applicant’s condition was affecting his ability to mobilise and function, specifically his ability to walk, bend, sit and lift.[60] Dr Babar also noted that the Applicant was experiencing chronic lower back pain that was constant and deteriorates when the Applicant sits for an extended period of time.[61]
[59]        Exhibit 1, T Documents, T25, pages 135-145, DSP Medical Report completed by Dr Babar,
dated 21 July 2016.
[60]        Exhibit 1, T Documents, T25, page 140, DSP Medical Report completed by Dr Babar,
dated 21 July 2016.
[61]        Exhibit 1, T Documents, T25, page 139, DSP Medical Report completed by Dr Babar,
dated 21 July 2016.
In the undated medical report from Dr Babar, the Applicant has provided comments about the functional impact of his condition in relation to Table 4. The Applicant has stated:
I am unable to sit still for periods of 30 minutes. My lower back gets is unable to endure sitting, especially where there are no arm-rests to shift my weight on to. In my lounge chair, I struggle to get out of the chair, so I am selective…to where I sit (sic).[62]
[62] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
On 17 August 2016, the Applicant attended a JCA by telephone and reported to the JCA that the impacts of his Lumbar Spine condition were as follows:[63]
·difficulty bending, straightening and lifting;
·can maintain full-time employment in a work role that does not require heavy lifting, pulling, pushing, twisting or reaching;
·has to utilise a tool to retrieve items from the floor; and
·able to sit and drive in a car for at least 30 minutes.
[63] Exhibit 1, T Documents, T27, page 154, JCA Report, dated 24 August 2016.
The Secretary submitted that, consistent with the JCA and ARO, that the Applicant’s Spinal condition attracted an Impairment Rating of 5 points under Table 4 of the Impairment Determination.[64] The Applicant contends that the appropriate rating for his Spinal condition is 10 points under Table 4.[65]
[64] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018, paragraph 5.26.
[65] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
Table 4 of the Impairment Determination provides the following descriptors for 5 points to be considered appropriate:
(1) The person has some difficulty in:
(a)activities over head height (e.g. activities requiring the person to
a. look upwards); or
(b)bending to knee level and straightening up again without difficulty;
or
(c)turning their trunk or moving their head (e.g. to look to the sides or
upwards).
In the Relevant Period, the Applicant has provided corroborating medical evidence to indicate that his Lumbar Spine condition affects his ability to sit, bend and lift.[66] With specific reference to the 5 point descriptor for Table 4, the Applicant reported to the JCA that he experiences difficulty bending and straightening and has to utilise a tool to retrieve items from the floor.[67]
[66] Exhibit 1, T Documents, T25, page 140, DSP Medical Report completed by Dr Babar,
dated 21 July 2016.
[67] Exhibit 1, T Documents, T27, page 154, JCA Report, dated 24 August 2016.
Table 4 of the Impairment Determination provides the following descriptors for 10 points to be considered appropriate:
(1)The person is able to sit in or drive a car for at least 30 minutes, and at
least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing
items over head height); or
(b) the person has difficulty moving their head to look in all directions
(e.g. turning their head to look over their shoulder); or
(b)the person is unable to bend forward to pick up a light object placed
at knee height; or
(c)the person needs assistance to get up out of a chair (if not
independently mobile in a wheelchair).
At the hearing, the Applicant explained that he is able to sit in and rise unaided from a chair, provided he has something to press himself up on. The Applicant also stated that although his wife takes care of all the heavy lifting, he is able to open the overhead luggage compartment in a plane.
Based on the evidence before me, I am not satisfied that the evidence supports a finding that the Applicant attracts a rating of 10 points under Table 4 for his Spinal condition.
I therefore assign the Applicant’s Spinal condition an Impairment Rating of 5 points under Table 4 of the Impairment Determination.
Other Conditions
In the undated medical report from Dr Babar, the Applicant has listed Anxiety and Migraine conditions and provided comments about the functional impact of these conditions in relation to Table 5 and Table 15.[68]
[68] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
I will deal with these two conditions separately.
Anxiety Condition
On 30 September 2016, Ms Wynn, a Counsellor prepared a letter in support of the Applicant’s DSP claim and stated that the Applicant was experiencing
[69] Exhibit 1, T Documents, T30, page 160, Letter from Ms Wynn – Crisis Counselling Service,
dated 30 September 2016.
[70] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
“significant anxiety”.[69] Dr Babar has stated that he is planning on referring the Applicant to a Clinical Psychologist.[70]
The Secretary contends that the Applicant’s Anxiety condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.[71] The Applicant has contended that a rating of 5 points under Table 5 of the Impairment Determination is appropriate.[72]
[71] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018, paragraph 5.38.
[72] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
Table 5 of the Impairment Determination requires that the diagnosis of the condition must be made by an appropriately qualified medical practitioner, with evidence from a clinical psychologist if the diagnosis is not made by a psychiatrist.[73]
[73] Impairment Determination, Table 5 Introduction.
Based on the medical evidence before me, I accept the Respondent’s contention that the Applicant’s Anxiety condition had not been diagnosed at the Relevant Period. Further, the Applicant has not provided any medical information in relation to treatment or the impact of this condition at the Relevant Period. As such, I cannot be satisfied that this condition is fully treated or fully stabilised. Consequently, I am unable to assign an Impairment Rating to this condition.
Migraine Condition
On 21 July 2016, Dr Babar reported that the Applicant had developed neck stiffness with frequent headaches and had listed this as a symptom of his Lumbar Spine condition.[74] In the undated medical report, Dr Babar reported that the Applicant was experiencing headaches due to issues with his cervical spine. The Applicant reported that he was experiencing migraines 4-5 days a week and it was impacting on his ability to function.[75]
[74] Exhibit 1, T Documents, T25, page 139, DSP Medical Report completed by Dr Babar,
dated 21 July 2016.
[75] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
At the hearing, the Applicant conceded that he had not undertaken any medical investigations into the cause or treatment of his migraines. Further, when the Applicant was asked by the Respondent what treatments or investigations he had in relation to his migraines his response was: “prescription medicines”.
The Secretary contends that the Applicant’s Migraine condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.[76] The Applicant has contended that a rating of 5 points under Table 15 of the Impairment Determination is appropriate.[77]
[76]Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February 2018, paragraph 5.40.
[77] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 27 February
2018: Attachment A – Report of Dr Babar, undated.
Based on the medical evidence before me, I accept the Respondent’s contention that the Applicant’s Migraine condition had not been diagnosed at the Relevant Period. Further, the Applicant has not provided any medical information in relation to treatment or the impact of this condition at Relevant Period. As such, I cannot be satisfied that this condition is fully treated or fully stabilised. Consequently, I am unable to assign an Impairment Rating to this condition.
CONCLUSION
On the basis of the evidence before me, I find the following:
(a)I am satisfied that the Applicant’s Cervical Spine condition was fully diagnosed, but not fully treated or fully stabilised during the Relevant Period;
(b)I am not satisfied that the Applicant’s Anxiety and Migraine conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period; and
(c)
I am satisfied that the Applicant’s Lumbar Spine condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, I have assigned the Applicant’s Lumbar Spinal condition an Impairment Rating of 5 points under Table 4 of the Impairment Determination and an Impairment Rating of

0 points under Table 3 of the Impairment Determination.
As the Applicant does not have a total of 20 or more Impairment Points under the Impairment Tables, he does not satisfy the requirement under section 94(1)(b) of the Act. Given this conclusion, it was not necessary for me to consider whether the Applicant had a continuing inability to work.
DECISION
For the reasons I have set out above, the decision under review is affirmed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

............................[SGD]............................................
Associate
Dated: 27 July 2018

Date of hearing:
Applicant:

29 March 2018

By Telephone

Advocate for the Respondent: Claire Campbell

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 2572

27 July 2018

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