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

[2017] AATA 698

Westell and Secretary, Department of Social Services (Social services second review) [2017] AATA 698 (18 May 2017)

Division:GENERAL DIVISION

File Number:           2016/4163

Re:Garth Westell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:18 May 2017

Place:Adelaide

The Tribunal affirms the decision under review.

............[Sgd]......................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether applicant's medical conditions were fully diagnosed, fully treated and fully stabilised during the assessment period - whether the applicant has a severe impairment - decision under review is affirmed.

LEGISLATION

Social Security Act 1991, s 94

Social Security (Administration) Act 1999

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

18 May 2017

INTRODUCTION

1. The applicant, Mr Westell, lodged a claim for disability support pension (DSP) on 16 October 2015.  Centrelink rejected the claim in the first instance.  Mr Westell requested a review of that decision.  An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.  Mr Westell requested a review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).  Centrelink’s decision was again affirmed.  Mr Westell applied to the general division of the Tribunal for a second review. 

2. The hearing took place on 7 April 2017. Mr Westell was self-represented and he attended the Tribunal in person. Ms Moran represented the respondent, the Secretary, Department of Social Services. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and associated documents.

3. Mr Westell is now 52 years old.  He suffers from a number of medical conditions which include conditions relating to his back, hip, neck and mental health.  Mr Westell gave evidence at the hearing.  He called two witnesses, namely his general medical practitioner and his physiotherapist.  They gave evidence by telephone.

   LEGISLATION AND ISSUES

4. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The assessment period in this case is 16 October 2015 to 15 January 2016.

5. Further, s 94 of the Act requires that a person has a “continuing inability to work” which will be satisfied if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”.

6. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

7. Accordingly, Mr Westell will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work. In the absence of a severe impairment, one of the requirements for a continuing inability to work is active participation in a program of support.

8. The Secretary accepted that Mr Westell suffers from a hip condition, namely osteoarthritis, a spinal condition, namely degenerative L5/S1 disc changes and right L4/5 arthroplasty, a neck condition involving mild degeneration of the cervical spine at C3/4 and C5/6 levels, a mental health condition, Hepatitis C and a pain disorder. The Secretary’s concession, which the Tribunal accepts, is that Mr Westell suffers medical conditions that cause impairment and s 94(1)(a) is satisfied.

9. The Secretary accepted that the hip condition was fully diagnosed, treated and stabilised during the assessment period and attracted a rating of 5 points for a mild impairment under Impairment Table 3 (lower limb function). 

10. The Secretary accepted that the spinal condition involving degenerative L5/S1 disc changes and right L4/5 arthroplasty was fully diagnosed, treated and stabilised during the assessment period and attracted a rating of 5 points for a mild impairment under Table 4 (spinal function) or, in the alternative, a maximum rating of 10 points for a moderate functional impact. 

11. The Secretary contended that the neck condition involving mild degeneration of the cervical spine at C3/4 and C5/6 was fully diagnosed during the assessment period though not fully treated or stabilised and therefor incapable of an allocation of points under the Impairment Tables. In the alternative, if the Tribunal found that the neck condition was fully diagnosed, treated and stabilised during the assessment period, the Secretary contended that the Impairment Table 4 was the relevant table for assessment of the functional impact which, relating to the spinal condition affecting the back and the neck, attracted a rating of 10 points.

12. The Secretary contended that Mr Westell’s mental health condition was not fully diagnosed, treated and stabilised during the assessment period and no impairment rating could be assigned or, in the alternative, there is no functional impairment related to that condition. 

13. The Secretary contended that the condition of Hepatitis C was fully diagnosed but not fully treated or fully stabilised. 

14. The Secretary submitted that a condition of pain disorder could not be considered to be fully diagnosed, treated and stabilised.

15. The main issue for determination is whether Mr Westell’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work.

    IMPAIRMENT TABLES

16. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. An impairment rating can only be assigned if the person’s condition causing that impairment is permanent and if the impairment results from a condition that is more likely than not to persist for more than two years. Under the Impairment Tables, a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

17. The applicable impairment rating for each of Mr Westell’s conditions will be considered in turn by reference to the Impairment Tables. As indicated, consideration must be given to whether each condition was fully diagnosed, treated and stabilised during the assessment period before determining an impairment rating, because the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating.

18. Section 6(5) of the Impairment Tables provides that a decision whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition and whether treatment is continuing or is planned in the next two years.

19. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment in unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

    Lower Limb – Osteoarthritis – whether fully diagnosed, treated and stabilised

20. A report was received in evidence from an occupational physician, Dr B Byok.[1]  The report provided a useful summary of injuries which Mr Westell had sustained.  They included an injury at work in late 2011 when he jarred his right leg, right hip and lower back.  He returned to work on light duties and reduced hours.  In February 2012 he was working full time when he sustained another injury which aggravated right lower back and hip symptoms.  Then in October 2012 he twisted his right hip area again and the symptoms worsened.  In January 2013 he injured himself again at work when he tripped and suffered pain in his lower back and right hip.  He ceased working in February 2013 and when Dr Byok examined him in May 2013 he said that he had a constant ache in the right buttock.  Dr Byok reported that Mr Westell had two sacroiliac joint injections for pain relief.  He considered that the injury was consistent with mild right trochanteric bursitis. 

    [1] Exhibit 10, T19 p 181.

21. A neurosurgeon, Dr P Carney, wrote a report dated 8 July 2014[2] in which he noted that Mr Westell’s pain was improved by acupuncture in the gluteal area and sacroiliac joint area.  He was doing gym exercises and taking an average of four tablets of Panadeine Forte per day.  Dr Carney reported that the injuries which Mr Westell sustained in the work accident in January 2013 would have affected the right hip joint in the region of the right trochanteric burse.

    [2] Exhibit 10, T20 p 188.

22. An occupational physician, Dr P Haynes provided a report dated 13 November 2014[3] in which he confirmed the diagnosis of right hip strain.  Mr Westell told Dr Haynes that he had continuing pain in the right hip and the pain becomes worse if he attempts to climb stairs or hills.  There was a noted restriction of movement in the right hip.  Dr Haynes noted the results of a CT scan which was done in March 2012 and which referred to mild degenerative changes involving both hips and degenerative changes in the lower lumbar spine.  Dr Haynes referred to aggravation of osteoarthritis in the right hip and he considered that maximum medical improvement had been reached in regard to that condition.  Mr Westell had received physiotherapy and acupuncture twice weekly.  He had been referred for multiple investigations, predominantly of the lumbar spine and he had received treatment with a series of steroid injections mainly to the spine.  He had received treatment from his general medical practitioner and in addition to the physiotherapy and acupuncture he was taking Panadeine Forte every day.

    [3] Exhibit 10, T25 p 209.

23. Mr Westell’s current general medical practitioner, Dr B Darlington, gave evidence to the Tribunal by telephone.  He also provided a written report dated 24 June 2016 in which he confirmed that Mr Westell suffered from right hip and low back pain which were constant.[4]

    [4] Exhibit 10, T32 p 232.

24. A Job Capacity Assessment report (JCA) was provided on 14 December 2015[5] following a face to face interview with Mr Westell on 20 November 2015.  According to the report the lower limb deficiencies were fully diagnosed, fully treated and fully stabilised.  The report referred to reports by Dr Carney and the general medical practitioner Dr Darlington.  The report noted Mr Westell’s comments to the effect that his hip pain had worsened since the accident in 2013 and he had sought specialist review, treatment and pain relief.  The report indicated that Mr Westell had suffered an adverse functional impact which affected his daily activities.  For example he adapted household tasks and performed them slowly.  He could drive his car for about one hour and then needed to change posture.  He was taking longer to mow the lawns.  His walking tolerance was reduced to 30 minutes.  The pain was impacting his sleep patterns.

    [5] Exhibit 10, T30 p 223-230.

25. In evidence to the Tribunal, Mr Westell confirmed that he was suffering from pain in the hip when he made the DSP claim and the pain has continued to the present time.  It radiates from the hip down his leg.  He has difficulty walking and he avoids climbing stairs.  He said that he could stand for 15 minutes and then he would sit down or get support by leaning.  Bending can be problematic and he has problems dressing, especially doing up shoe laces. 

    The applicable impairment rating

26. Impairment Table 3 provides the descriptors relating to use of the lower limbs.  It is used where the individual has a permanent condition which leads to functional impairment performing activities that require the use of legs or feet.

27. For a mild functional impact on activities using the lower limbs, Impairment Table 3 states:

Points

 Descriptors

5

There is a mild functional impact on activities using lower limbs.

(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.

1. Taking into account all of the medical evidence, together with Mr Westell’s evidence, the Tribunal considers that the lower limb condition was fully diagnosed, fully treated and fully stabilised at the time of the DSP claim.  Mr Westell clearly has some difficulty with sustained walking and requires a rest from time to time.  He has some difficulty climbing stairs and he cannot stand for long without sitting or seeking support.  Based on all of the evidence relating to the hip condition a rating of 5 Impairment Points is appropriate.

   Spinal condition – whether fully diagnosed, treated and stabilised.

2. Evidence relating to Mr Westell’s spinal condition covers a period of about 20 years.  A report by a general medical practitioner, Dr C Horsfall dated 18 November 1997[6] stated that Mr Westell had cervical spine and lumbar pain following a parachute accident in the Army in 1986.  At the time of Dr Horsfall’s assessment, Mr Westell was suffering pain which radiated to the left arm and leg.  An MRI report done on 20 August 1997, showed a disc bulge at the C3/4 level and mild disc degenerative disease in the cervical spine at C3/4 to C5/6 levels inclusively.  Treatment at that time included anti inflammatory tablets and physiotherapy. 

   [6] Exhibit 9.

3. A report from Benson Radiology dated 27 September 2009[7] summarised the findings which included mild narrowing of the C4/5 disc space and moderate narrowing at C5/6 with associated degenerative changes.  The findings also suggested small osteophytes at C6/7.  There was clinical concern with regard to a possible cervical spine fracture.  In relation to the thoracic spine the findings indicated mild osteophytic signs in the mid and lower thoracic spine.  There was a mild scoliosis to the left in the lumbar spine.

   [7] Exhibit 10, T17 p 177.

4. A further report from Benson Radiology dated 15 May 2013 concluded that there was lower lumbar disc degeneration and facet joint disease.[8]

   [8] Exhibit 10, T18 p 179.

5. The report by the occupational physician, Dr Byok, dated 15 May 2013[9] referred to the various investigations and concluded that:

   Chronic regional predominantly right sided lumbar back pain, consistent with aggravation of underlying degenerative changes. Investigations do not demonstrate a significant structural abnormality or evidence of nerve root compromise.  Non specific degenerative changes are noted involving the lower two lumbar discs and bilateral facet joints more pronounced on the right.  There is no evidence of structural or inflammatory change in the sacro-iliac joints or inflammation involving any soft tissues of the buttock region.  A small amount of fluid was noted in the trochanteric bursa suggestive of a bursitis.[10]

   [9] Exhibit 10, T19 p 181-187.

   [10] Exhibit 10, T19 p 187.

6. At that time Dr Byok recommended a CT bone scan.  According to Dr Byok’s report, Mr Westell said that he could drive his manual vehicle for about 45-60 minutes and then needed to get out of the car and walk around.  He prepared his own food at home, makes his bed and carries out housework slowly. 

7. According to the history which Dr Byok took from Mr Westell, he was able to do the vacuuming and general house work, however he used a laundromat rather than doing the laundry at home.  He was able to shop at the supermarket.  He had a friend to help him with gardening.  He was independent in his self care. 

8. The report from Dr P Carney, dated 8 July 2014[11] noted that Mr Westell’s imaging studies indicated evidence of minor degenerative changes at L3/4 and L4/5.  At L5/S1 there was evidence of a radial tear and minor facet joint osteoarthritis bilaterally.[12]  Dr Carney concluded that Mr Westell appeared to have suffered a lumbar spine injury when he worked in the Army between 1986 and 1989.  When Dr Carney saw him in July 2014, he considered that Mr Westell was capable of four hours work a day, five days per week, on relatively light duties although it would be extremely difficult for him to find work which fits within his “tolerable limits”.[13] 

   [11] Exhibit 10, T20 p 188-199.

   [12] Exhibit 10, T20 p 195.

   [13] Exhibit 10, T20 p 198.

9. Dr Darlington, provided a medical certificate on 2 July 2015 in which he listed Mr Westell’s primary condition as L4/5 facet joint pain and neck pain.  He reported that Mr Westell was unfit for work between July 2015 and October 2015.[14] 

   [14] Exhibit 10, T27 p 217.

10. Similarly in a medical certificate which Dr Darlington provided on the 8 October 2015 he referred to Mr Westell’s primary condition as “neck and back problems”.  He considered that Mr Westell was unfit for work from 8 October 2015 to 8 January 2016.[15]

    [15] Exhibit 10, T28 p 218.

11. Dr Darlington provided a report on 24 June 2016[16] in which he wrote that Mr Westell presented with neck pain, back pain and psychological issues attributed to his service in the Army in the 1980’s.  He also has right hip and low back pain unrelated to military service.  Dr Darlington wrote that the hyperextension injury to the neck in 1986 resulted in chronic neck pain which radiated down his right arm and also caused headaches.  He was awaiting a further neurosurgical opinion in relation to the neck pain.  Dr Darlington reported that Mr Westell’s back and hip pain were constant and they affected his driving and physical activities. 

    [16] Exhibit 10, T32 p 232.

12. Dr Darlington provided a further report on 16 September 2016.[17]  Dr Darlington noted an MRI report of Mr Westell’s neck condition which indicated mild canal stenosis and severe right foraminal stenosis at C4/5 and severe bilateral C5/6 foraminal stenoses.  Dr Darlington wrote:

    … This causes Mr Westell significant neck pain and pains travelling down both of his arms.  I consider that this condition has been fully diagnosed, treated and stabilised for the period 16 October 2015 to 15 January 2016, his claim period.  He is under the care of Dr Malloy, neurosurgeon who is currently not planning any further treatment if he responds well to Lyrica.

    [17] Exhibit 2.

13. Dr Darlington noted that treatment had included chiropractic, physiotherapy and pain relief for the neck symptoms. 

14. Dr Darlington referred Mr Westell to a neurosurgeon Dr C Molloy who provided a report dated 5 September 2016.[18]  Dr Molloy confirmed that Mr Westell had responded well to Lyrica, having tried Endep which proved to be unacceptable because of adverse side effects.  Dr Molloy had discussed with Mr Westell a possible anterior cervical fusion which Mr Westell was not willing to undertake because of the risks and the current appropriate management of the condition through Lyrica, and regular physiotherapy. 

    [18] Exhibit 8.

1. Mr Westell’s physiotherapist, Mr J Sibbick, provided a report dated 9 December 2016.[19]  Mr Sibbick also gave evidence to the Tribunal by telephone.  Mr Westell had commenced treatment of his lumbar spine following the injury in February 2012.  He had also complained of neck pain.  The treatment for the neck was commenced in May 2016 after Mr Westell received approval from the Department of Veterans’ Affairs in relation to a claim that he had made.  Mr Sibbick wrote:

   Given the nature of his injury there is a severe functional impairment that would affect his ability to perform overhead activities or turning his cervical spine.  If he was to perform these duties I believe his condition would worsen requiring him to have the spinal fusion surgery. 

   [19] Exhibit 11.

2. Mr Sibbick recommended that Mr Westell continue physiotherapy.  He had also suggested that Mr Westell refrain from self manipulation which, although it reduced his pain, was inadvisable because of the risk of increased damage to his neck.

3. A chiropractor, Mr A Fazzalari, provided a report dated 9 December 2016[20] in which he confirmed that Mr Westell received chiropractic treatment between mid 2009 and early 2012.  The treatment related to the lower back and neck pain.  Treatment included spinal manipulation and mobilisations, soft tissue manipulation and other chiropractic techniques.  Mr Fazzalari noted the report of the whole spine MRI scan in July 2016 which confirmed mild to severe spinal nerve compromise in the cervical and lumbar spine with mild to moderate degenerative changes throughout his spine.

   [20] Exhibit 11.

4. The Tribunal is satisfied that there is abundant medical evidence about the lumbar spine and the cervical spine.  The lumbar spine was fully diagnosed by the time of the DSP claim and fully treated and fully stabilised.  The cervical spine was also fully diagnosed at the time of the DSP claim.  The Secretary contended however that the cervical spine was not fully treated or fully stabilised during the assessment period. 

5. Section 6(7) of the Rules for applying the Impairment Tables defines reasonable treatment. It includes treatment that can reliably be expected to result in substantial improvement in functional capacity, carries a high success rate and a low risk to the person.

6. In his evidence to the Tribunal, Mr Westell stated that he would not contemplate fusion surgery.  In his opinion it involves too much risk.  In addition, the medication which he has been taking has some success and reduces some of the neck pain.

7. It is interesting to note that Mr Westell made a claim under the Safety, Rehabilitation and Compensation Act 1988 to the Department of Veterans’ Affairs in relation to the neck/cervical spine osteoarthritis and C6 nerve root entrapments. The claim related to a diagnosed condition related to a period of defence service between May 1986 and May 1989.  By letter dated 23 June 2016 from the Department of Veterans’ Affairs Mr Westell was advised that his claim was accepted in acknowledgement of a diagnosed condition of cervical spondylosis.[21]  The date of effect for the condition was 20 August 1997 which was in accordance with medical records from the Royal Adelaide Hospital confirming this was the date of diagnosis of cervical spondylosis.  The determination included a concession on the balance of probability that military service had contributed to a material degree to the condition.

   [21] Exhibit 10, T37 p 246.

8. The evidence about the cervical spine confirms that the condition was diagnosed about 20 years ago.  Intermittently Mr Westell has undergone medical reviews, x-rays and scans, and he has tried various forms of treatment.  Predominantly they have included physiotherapy and chiropractic treatments. 

9. The Tribunal is satisfied that the cervical spinal condition was fully treated and fully stabilised in accordance with the criteria in ss 6(5), (6) and (7) of the Rules to the Impairment Tables.

   Spinal condition- impairment rating

10. Impairment Table 4 is the relevant table in relation to spinal condition.  It is used where the person has a permanent condition that leads to functional impairment in activities involving spinal function, in particular bending or turning the back, trunk or neck. 

11. For a moderate functional impact on activities involving spinal function, the Impairment Table provides:

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(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

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

1. For a severe functional impact on activities involving spinal function, Impairment Table 4 provides:

Points

20

There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)       perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their 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

1. The Tribunal has taken into account Mr Westell’s evidence together with all of the medical evidence and reports regarding spinal function.  During the assessment period he was able to drive a car for at least 30 minutes.  However if he drove for slightly longer he would suffer discomfort.  He was unable to sustain overhead activities and had difficulty moving his head to look in all directions.  Tying shoe laces was difficult.  In evidence, Mr Westell confirmed that he had difficulties bending, getting dressed, turning his head and his neck.  Physiotherapy does assist particularly in the reduction of headaches. 

2. The JCA report, previously discussed, noted Mr Westell’s comments to the assessor about restrictions on his daily activities.  For example it took him longer to mow the lawns.  He told the assessor that he adapted household tasks to perform them slowly and take rest breaks.  He reported that driving for one hour required him to change posture.  He also reported reduced walking tolerances to about 30 minutes.  The pain impacted upon his sleep patterns. 

3. The Tribunal is satisfied that Mr Westell’s condition involving the lumbar spine and the cervical spine do not meet the descriptors for a severe functional impact.  Clearly, however, the evidence establishes that they do meet the descriptors for a moderate functional impact particularly in relation to (1)(a), (b) and (c) of the descriptors.  Accordingly the appropriate rating is 10 impairment points for the spinal function.

   Mental health condition

4. The evidence about the impact of a mental health condition dates back to 1997.  The general medical practitioner, Dr Horsfall, referred to depression which Mr Westell was experiencing at that time.  Dr Horsfall noted that psychological testing was completed. 

5. A psychologist, Ms J Lucas, provided a report in March 1998[22] in which she diagnosed Mr Westell with an adjustment disorder.  She noted mixed anxiety and depressed mood in addition to a pain disorder.  She recommended further psychology including cognitive behavioural therapy. 

   [22] Exhibit 9.

6. A general medical practitioner, Dr H Duong, wrote a report on 1 February 2000 in which he referred to a diagnosis of adjustment disorder with clinical features including depressive symptoms.[23] 

   [23] Exhibit 9.

7. From that point there is a gap in the medical evidence over several years.  The report by Dr P Carney, neurosurgeon in July 2014 referred to post-traumatic stress disorder which Mr Westell sustained after a shooting incident in 1993.[24] 

   [24] Exhibit 10, T20 p 189.

8. The JCA report in December 2015 referred to Dr Carney’s comments and added that Mr Westell was suffering stress and low mood symptoms at that time.  He had tried pharmacological treatment without much assistance.  Medication at night time did assist with sleeping.  The report from the general medical practitioner Dr Darlington in June 2016[25] referred to psychological treatment which Mr Westell was receiving for anxiety and post-traumatic stress disorder.

   [25] Exhibit 10, T32.

9. Impairment Table 5 refers to mental health function.  It is used where the person has a permanent condition that leads to functional impairment arising out of a mental health condition.  The diagnosis must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist if the diagnosis is not by a psychiatrist. 

10. The Tribunal is not satisfied that an appropriate diagnosis of mental health function had been made at the time of the assessment period. In the alternative, if the mental health condition was fully diagnosed, the evidence is clear that it was not fully treated and fully stabilised during the assessment period. Accordingly it does not attract an allocation of points under the Impairment Tables.

    Other conditions

11. The Secretary contended that Mr Westell’s condition of Hepatitis C was fully diagnosed, but not fully treated or stabilised.  The report from Dr Haynes[26] indicated that Mr Westell did not experience any symptoms from Hepatitis C.  The JCA report[27] noted that Mr Westell had been referred to the Lyall McEwen Hospital liver unit and he was on a three month waiting list.  Mr Westell gave evidence about his concern about the way in which he learnt of the diagnosis of Hepatitis C and the delay in receiving that information.

    [26] Exhibit 10, T25.

    [27] Exhibit 10, T30.

12. The Secretary also referred to conditions of pain disorder and substance use/abuse neither of which could be considered fully diagnosed treated and stabilised. 

13. None of these other conditions were relied upon in any substantive way to support the DSP claim. 

    CONCLUSION

14. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.

15. As outlined, the Tribunal finds that Mr Westell’s spinal condition was fully diagnosed, fully treated and fully stabilised during the assessment period.  The applicable rating for the spinal condition is 10 impairment points.

16. The Tribunal finds that Mr Westell’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the assessment period.  The applicable rating for that condition is 5 impairment points.

17. With a total of 15 impairment points, Mr Westell does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore he does not satisfy s 94(1)(b) of the Act.

18. In these circumstances it is not necessary to consider whether or not during the assessment period Mr Westell had a continuing inability to work within the meaning of S 94(1)(c) of the Act.

19. As Mr Westell was not qualified for DSP at the time he lodged his claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

20. The Tribunal notes that Mr Westell’s evidence was honest, reliable and carefully presented.  His integrity is not in doubt.  The result of his hearing does not diminish the impact of his medical conditions.  It is a finding that the criteria for qualification for the DSP were not met at the time of the DSP claim, and during the assessment period applicable to that claim.

    DECISION

21. The Tribunal affirms the decision under review.

I certify that the preceding 74 (seventy -four) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

...........[Sgd]........................................

Administrative Assistant

Dated: 18 May 2017

Date(s) of hearing:	7 April 2017
Applicant:	In person
Advocate for the Respondent:	Ms E Moran
Solicitors for the Respondent:	Sparke Helmore Lawyers