Wilkinson and Secretary, Department of Social Services (Social services second review) - [2017] AATA 2718

Wilkinson and Secretary, Department of Social Services (Social services second review) [2017] AATA 2718 (18 December 2017)
Division:GENERAL DIVISION
File Number: 2016/6699
Re:Mr Richard Wilkinson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member A C Cotter
Date:18 December 2017
Place:Brisbane

The decision under review is affirmed.
..............................[Sgd]......................................
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – neuropathy condition – spinal condition - bowel condition - depression – other conditions - asthma; high cholesterol; left hand fracture; jaw pain; and a cardiac condition - whether applicant was qualified for DSP at the date of cancellation – whether impairments attract 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth) ss 63, 80
Social Security Act 1991 (Cth) ss 27, 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 11
CASES
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Natalizi and Secretary, Department of Social Services [2014] AATA 803
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Senior Member Cotter
18 December 2017
INTRODUCTION

Mr Richard Wilkinson received Disability Support Pension (“DSP”) from October 2008 in respect of his spinal disorder.
Following a review by the Department of Human Services (“Department”), a decision was made that Mr Wilkinson was no longer entitled to DSP as he did not have the requisite number of impairment points under the Impairment Tables. As a consequence, his DSP was cancelled in July 2016.
Mr Wilkinson sought a review of the cancellation decision by an Authorised Review Officer (“ARO”). It was unsuccessful. A review of the ARO’s decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal was likewise unsuccessful, with the ARO’s decision being affirmed.
Dissatisfied with the outcome, Mr Wilkinson has applied for a review of the SSCSD’s decision by the General Division of the Tribunal.
For the reasons which follow, I consider that the SSCSD’s decision was correct and should be affirmed.
BACKGROUND
Mr Wilkinson received DSP for his spinal disorder from 14 October 2008.[1]
[1] Exhibit 1, T Documents, T7, page 73, letter, Authorised Review Officer to Mr Wilkinson, dated 2 August 2016.
On 11 April 2016, Mr Wilkinson was issued with a medical review form for the purpose of reviewing his ongoing qualification for DSP.[2]
[2] Exhibit 1, T Documents, T4, pages 45-58, Medical Report Disability Support Pension Review form, dated
In the form completed by him, Mr Wilkinson listed his disabilities, illnesses or injuries as: RSDS (Reflex Sympathetic Dystrophy Syndrome) – nerve injury; back injury; and bowel problem.[3]
[3] Exhibit 1, T Documents, T4, page 46, Medical Report Disability Support Pension Review form completed by Mr Wilkinson, dated 15 April 2016.
A general practitioner from the clinic that Mr Wilkinson attended, Dr Mark Zischke, also completed a review form. He nominated “longstanding neuropathy” as the condition having most impact on Mr Wilkinson’s ability to function.[4] Back pain – L5/S1 disc bulge impinging S1 nerve root origins was also listed as a condition having a significant impact on Mr Wilkinson’s ability to function.[5] In addition, Dr Zischke noted that Mr Wilkinson suffered from asthma and high cholesterol, but said that those conditions were generally well managed and caused minimal or limited impact on his ability to function.[6]
[4]           Exhibit 1, T Documents, T4, page 51, Medical Report Disability Support Pension Review form completed by
[5]           Ibid, page 54.
[6]           Ibid, page 57.
On 14 June 2016, Mr Wilkinson attended a face to face assessment with a Job Capacity Assessor (“JCA”), who prepared a report dated 30 June 2016.[7] As regards Mr Wilkinson’s neurological problems, the JCA thought that the condition was not fully diagnosed, as there was no clear diagnosis provided in the medical reports. Nor was the condition considered fully treated and stabilised, as future assessment by a neurologist, Dr Robert Henderson, was planned, which might have improved Mr Wilkinson’s functional capacity.[8] The back condition was considered to be fully diagnosed but not fully treated and stabilised, as further treatment was planned following its exacerbation from a fall that Mr Wilkinson had earlier in 2016.[9] Mr Wilkinson’s mental health condition was found not to have been diagnosed by a psychiatrist or clinical psychologist.[10] As a result, no impairment points could be assigned in respect of those three conditions.[11] Mr Wilkinson’s asthma and hypercholesterolaemia conditions were both considered to be fully diagnosed, treated and stabilised. However, no points were assigned in respect of them since they were generally well managed and caused minimal or limited functional impairment.[12] The JCA assessed Mr Wilkinson’s baseline work capacity at 15 to 22 hours per week, with the same assessment for capacity for work within two years, with intervention.[13]
[7]           Exhibit 1, T Documents, T5, pages 59-66, Job Capacity Assessment Report dated 30 June 2016.
[8]           Ibid, page 60.
[9]           Ibid, page 62.
[10]         Ibid, page 61.
[11]         Ibid, pages 63-64.
[12]         Ibid, pages 60-61.
[13]         Ibid, pages 64-65.
On 5 July 2016, the Department advised Mr Wilkinson that he was not eligible for DSP as he had been assessed as having an impairment rating of less than 20 points. His DSP was cancelled as a consequence.[14]
[14] Exhibit 1, T Documents, T5, pages 67-68, Department’s letter to Mr Wilkinson dated 5 July 2016.
Mr Wilkinson sought a review of the cancellation decision by an ARO.
In the meantime, Dr Zischke wrote to the Department to clarify his earlier report. He explained that he had only met Mr Wilkinson for the first time when he completed the report for the review of DSP, since Mr Wilkinson’s longstanding doctor from the same practice was on study leave at the time. Following his further review of Mr Wilkinson’s case, Dr Zischke stated that Mr Wilkinson had four permanent conditions which had been fully investigated, and for which there was no further new active treatment planned. The first condition was chronic back pain, which he said was related to a workplace injury in 1996. He added that there was also a more acute back injury due to a fall in February 2016, which was being managed. Second, there was chronic neck pain related to the workplace injury in 1996. The third condition was the longstanding neuropathy, present since 2005. He said that genetic tests showed no obvious hereditary neuropathy causing Mr Wilkinson’s symptoms. As to a further referral to Dr Henderson, Mr Wilkinson told Dr Zischke that Dr Henderson had seen him previously and no further treatment had been suggested. Finally, Dr Zischke referred to a left hand injury from a fracture in 1982. It caused long term symptoms, including pain and neuropraxia in the left hand. Although past operations on the hand had been performed, Dr Zischke said that no further management was available, and no further investigations were planned.[15]
[15] Exhibit 1, T Documents, T11, page 71, letter from Dr Mark Zischke to Centrelink dated 18 July 2016.
In August 2016, the ARO affirmed the decision to cancel Mr Wilkinson’s DSP. He concluded that the condition of RSDS was not fully treated and stabilised, such that it could not attract impairment points under the Impairment Tables. Mr Wilkinson’s chronic neck and back pain was also thought not to be fully treated and stabilised because of the recent exacerbation. As Dr Zischke had said that the exacerbated condition may take one to two years to settle, the ARO considered it had not been optimally treated since it was expected Mr Wilkinson’s ability to function may increase over the following two years. Accordingly, no impairment rating could be assigned. The mental health condition was considered to be not fully diagnosed in the absence of a formal diagnosis by a psychiatrist or a clinical psychologist. The conditions of asthma and hypercholesterolaemia were considered well managed and caused minimal impact on Mr Wilkinson’s ability to function, leading to the allocation of zero points under the relevant table, Table 1 (Functions requiring Physical Exertion and Stamina). As to Mr Wilkinson’s self-report of temporal pain when his jaw dislocated, the ARO was unable to assess that condition due to the absence of corroborating evidence.[16]
[16] Exhibit 1, T Documents, T7, pages 72 - 75, Authorised Review Officer’s letter to Mr Wilkinson dated
Mr Wilkinson sought a review of the ARO’s decision by the SSCSD.
In the meantime, Dr Zischke prepared a further report to the Department based on further information he had received from Mr Wilkinson’s previous general practitioner. In particular, he referred to a report of the neurologist, Dr Gamini Jayasinghe, indicating that Mr Wilkinson suffered from a peripheral neuropathy. Extensive investigation had been undertaken to determine a cause, but none had been found. Dr Jayasinghe stated that Mr Wilkinson’s autonomic symptoms were due to an underlying reflex sympathetic dystrophy which could occur with an underlying neuropathy. The report added that Mr Wilkinson’s former general practitioner, Dr Schiavo, had also noted that Mr Wilkinson’s symptoms were consistent with RSDS; Dr Zischke said that he was not previously aware that the diagnosis had been confirmed by a specialist.[17]
[17] Exhibit 2B, report of Dr Mark Zischke to Centrelink, dated 28 September 2016.
In October 2016, Mr Wilkinson’s file was referred to the Department’s Health Professional Advisory Unit (“HPAU”), which produced a report later that month. It concluded that Mr Wilkinson’s longstanding neuropathy condition could be considered to be fully diagnosed, treated and stabilised, having regard to the extensive treatments undertaken and the consistency of Mr Wilkinson’s presentations.[18] It suggested that five impairment points be assigned to that impairment under Table 2 (Upper Limb Function). It was thought that Mr Wilkinson’s lower limb problems should be considered as part of the spinal condition as a neurologist, Dr Robert Adam, had said that the L5/S1 protrusion was helpful in understanding the symptoms.[19] As to the spinal condition, the HPAU was of the opinion that while the condition was fully diagnosed, it was not fully treated and stabilised as there was insufficient evidence that reasonable treatment had been undertaken; further evidence of outcomes of physiotherapy and specialist assessments were required. Consequently, the spinal condition did not attract any impairment rating.[20]
[18]         Exhibit 1, T Documents, T8, page 84, Health Professional Advisory Unit Opinion dated 27 October 2016.
[19]         Ibid, page 85.
[20]         Ibid, page 84.
The SSCSD affirmed the ARO’s decision. In doing so, it found that Mr Wilkinson’s RSDS was fully diagnosed, treated and stabilised, attracting five impairment points under Table 2 in respect of his hands and elbows.[21] As to the back condition, the SSCSD noted that Mr Wilkinson was still undergoing treatment for his most recent injury and that Dr Zischke had stated that it could take one to two years to settle. On that basis, the lower back injury was considered not to be fully treated and stabilised as at the date of cancellation, such that no impairment rating could be assigned.[22] The SSCSD thought that Mr Wilkinson’s lower limb RSDS would contribute to reducing his endurance, and assigned five points in respect of that condition under Table 1 (Functions requiring Physical Exertion and Stamina).[23] It was considered that there was insufficient medical evidence to determine the impact of Mr Wilkinson’s other medical conditions (including asthma, hypercholesterolaemia, depression, anxiety, vertigo, diverticulitis, and conditions associated with the gastro-intestinal tract) on his ability to function, or to determine whether they were fully diagnosed, treated and stabilised.[24] Mr Wilkinson’s mental health condition was considered not fully diagnosed due to the absence of a formal diagnosis by a psychiatrist or a clinical psychologist.[25]
[21] Exhibit 1, T Documents, T2, page 6, Decision and Reasons for Decision of the Social Services & Child Support Division dated 3 November 2016, [17]-[18].
[22] Ibid, page 7, [25]-[26].
[23] Ibid, page 8, [28]-[29].
[24] Ibid, [30].
[25] Ibid, [31].
In April 2017, a further Job Capacity Assessment was undertaken after reviewing Mr Wilkinson’s file. It did not recommend any material changes to the earlier assessment undertaken in June 2016.[26]
[26] Exhibit 8, Job Capacity Assessment Report dated 13 April 2017.
THE LEGISLATIVE FRAMEWORK
Under s 80(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”), if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for that payment, the Secretary is to determine that the payment be cancelled. The question of whether the person is qualified or not is to be determined as at the day on which the cancellation occurs.[27] In this case, that is 5 July 2016. It is irrelevant that a person may later again fulfil the requirements for a grant.[28]
[27] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
[28] See Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 673-674.
Section 94 of the Social Security Act 1991 (Cth) (“SS Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the person has a physical, intellectual or psychiatric impairment; that the person’s impairment is of 20 points or more under the Impairment Tables; and that the person has a continuing inability to work.
The documents sent to Mr Wilkinson relating to the review of his eligibility for DSP constituted a notice under s 63(2) of the Administration Act.[29] Under s 27(3) of the SS Act, if a person is receiving DSP and receives a notice under s 63(2) of the Administration Act, the Secretary, in assessing their qualification for that pension, must apply the Impairment Tables in force at the time the notice is given.[30] At that time (11 April 2016), the Impairment Tables in force were those made under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), whereas Mr Wilkinson’s original grant of DSP had been assessed under different requirements.
[29] Exhibit 1, T Documents, T4, page 45, Medical Report Disability Support Pension Review form dated
[30] See also Natalizi and Secretary, Department of Social Services [2014] AATA 803 at [3].
The Impairment Tables under the Determination are function based, rather than diagnostic based,[31] and describe functional activities, abilities, symptoms and limitations.[32] They are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.[33]
[31] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2)(b).
[32] Ibid, s 5(2)(c).
[33] Ibid, s 5(2)(d).
Under the Rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[34] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and be more likely than not, in light of available evidence, to persist for more than two years.[35]
[34] Ibid, s 6(3).
[35] See ibid, s 6(4).
The following factors are to be considered in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated: 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.[36]
[36] See ibid, s 6(5).
A condition is “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.[37]
[37] Ibid, s 6(6).
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[38]
[38] See ibid, s 6(7).
The presence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If an impairment has no functional impact, then no rating will be assigned.[39]
[39] See ibid, s 6(8).
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[40]
[40] See ibid, s 8(1).
ISSUES FOR THE TRIBUNAL
The central issue for my determination is whether, as at the date of cancellation
(5 July 2016), Mr Wilkinson was qualified for DSP. That in turn leads to a consideration of each of the requirements in s 94(1) of the SS Act.
The Secretary accepts that, as at the date of cancellation, Mr Wilkinson suffered from impairments.[41] Having regard to the material before me, I believe that is an appropriate concession to make. Consequently, there is no dispute that Mr Wilkinson satisfied the first of the requirements in s 94(1) of the SS Act, namely that at the relevant time he had physical, intellectual or psychiatric impairments.
[41] Exhibit 19, Secretary’s Statement of Issues, Facts and Contentions dated 3 November 2017, [32].
I consider the other requirements in s 94(1) below.
CONSIDERATION
Did Mr Wilkinson’s impairments attract 20 points or more under the Impairment Tables?
I address this question by reference to Mr Wilkinson’s various conditions.
Neuropathy condition
The Secretary accepts that Mr Wilkinson’s neuropathy condition was fully diagnosed as at the date of cancellation.[42] Having regard to the medical evidence before the Tribunal, I consider that concession to be both reasonable and appropriate. Although the condition has been described differently over time, its longstanding nature and the consistency of Mr Wilkinson’s presentation of symptoms leads me to agree that it was fully diagnosed at the relevant time for the purpose of assessing the condition.
Fully treated and stabilised?
[42] Ibid, [34]-[35].
The Secretary contends that, as at the date of cancellation, the condition was not fully treated and stabilised.[43] Before I address that contention, it is worthwhile recording the relevant consultations that Mr Wilkinson had in the months preceding, and following, the date of cancellation.
[43] Ibid, [34] and [36].

Mr Wilkinson saw the consultant neurologist, Dr Robert Adam, at the Redcliffe Hospital Neurology Clinic on 1 March 2016. Following an examination, the doctor observed that Mr Wilkinson had longstanding neurological neuropathic symptoms “without any major signs and no clear electrophysiological correlates”. As that raised the possibility of a diagnosis of hereditary neuropathy, Dr Adam recommended blood tests to check for the PMP gene. He copied another consultant neurologist, Dr Robert Henderson (also at Redcliffe Hospital), into his report, seeking his opinion. Dr Adam noted that Mr Wilkinson declined any symptomatic therapy.[44]
[44] Exhibit 1, T Documents, T9, page 128, report by Dr Robert Adam to Dr Andrew Mayo dated 3 March 2016.
Dr Adam offered to prescribe Mr Wilkinson Endep for his nerve related issues. However, he declined until he had seen Dr Henderson; he had previously been on Endep and saw it as a last resort.[45]
[45] Exhibit 23, further statement of Mr Wilkinson (9 pages), undated, page 6.
In a letter to Mr Wilkinson dated 24 May 2016, Dr Adam reported that the genetic test proved negative, although that did not completely exclude hereditary neuropathy. He copied Dr Henderson into that correspondence, saying that he would be interested in receiving his thoughts.[46]
[46] Exhibit 1, T Documents, T9, page 130, letter from Dr Robert Adam to Mr Wilkinson dated 24 May 2016.
Mr Wilkinson saw Dr Henderson on 17 August 2016. Dr Henderson noted that Mr Wilkinson was not then on any medication and that Lyrica made him “dopey”. Bilateral lower back nerve root injections on 12 July had some modest benefit, improving his symptoms including those in his hands. After examining Mr Wilkinson, Dr Henderson remarked in a letter to Mr Wilkinson’s then general practitioner, Dr Doolan, that it was hard to be certain of any clear neuropathic cause. He arranged for an MRI of the full spine to reassess. While he said that he would look for some autoimmune causes, he stressed that Mr Wilkinson should continue to follow one regular general practitioner, such as Dr Doolan, to assess how the symptoms were changing and “whether there will be any benefit from seeing people such as physio or hand therapists”.[47]
[47] Exhibit 15G, letter from Dr Robert Henderson to Dr Thomas Doolan dated 22 August 2016.
Dr Henderson again saw Mr Wilkinson on 16 November 2016. He said that Mr Wilkinson had had an MRI scan of his cervical spine.[48] Dr Henderson said that Mr Wilkinson was still wanting answers, but he was “not sure there are easy ones”. He stated that he would probably focus on management, and suggested magnesium or calcium and taking two Panadol Osteo at night. He thought it would not be totally unreasonable to trial Lyrica 75mg tablets or Endep 10mg at night again. Involvement with physiotherapy would also likely to be helpful.[49]
[48] This was scheduled for 28 August 2016 but did not proceed as Mr Wilkinson had a “major panic attack”: see Exhibit 23, page 7, further statement of Mr Wilkinson, undated.
[49] Exhibit 15H, letter from Dr Robert Henderson to Dr T Doolan dated 28 November 2016.
What that chronology discloses is that prior to, or as at the date of cancellation, Mr Wilkinson was not engaged in a comprehensive treatment regime, combining appropriate pharmacological treatment with tailored interventions by allied health professionals (such as physiotherapists, occupational therapists and hand therapists).
There is no doubt that such a regime would constitute “reasonable treatment” for the purposes of the Rules for applying the Impairment Tables. It is consistent, not only with the management approach proposed by Dr Henderson in his reports, but also with guidelines for primary care management and pharmacological treatment developed by bodies such as Queensland Health[50] and the Western Australian Therapeutic Advisory Group,[51] respectively.
[50] See Exhibit 19B, Metro North Hospital and Health Service Neurology Departments, Adult Referral Evaluation and Management Guidelines.
[51] See Exhibit 19C, WATAG Advisory Note, Guidelines for the Pharmacological Treatment of Neuropathic Pain (2017).
It is also consistent with recommendations made by various doctors over a number of years, that Mr Wilkinson be referred to a pain clinic. As long ago as 2005, a physician at the Caboolture Hospital, Dr Rahman, raised the question whether Mr Wilkinson would be better managed by being referred to the Pain Clinic at the Royal Brisbane Hospital.[52] Some three years later, Mr Wilkinson’s then general practitioner, Dr Mark Weller, referred him to the Nambour pain clinic and the hand clinic at the Royal Brisbane Hospital.[53] Just over a year later, his then neurologist, Dr Jayasinghe, noted that it “may be worthwhile referring (Mr Wilkinson) to a pain clinic for further opinion regarding drug therapy”, as he was complaining of pain and paraesthesia in all four extremities.[54] While Mr Wilkinson explained that he experienced considerable frustration with Queensland Health about its requirements for new referrals after his referring doctor moved practices (with the consequence that he lost his place on the waiting list), I do not think that provides a sufficient answer for his failure to obtain such treatment.
[52]         Exhibit 1, T Documents, T9, page 116, letter from Dr M Rahman to Dr Mark Weller dated 4 March 2005.
[53]         Exhibit 1, T Documents, T9, page 118, letter from Dr Mark Weller to Dr M Rahman dated 8 May 2008.
[54]         Exhibit 1, T Documents, T9, page 122, letter from Dr Gamini Jayasinghe to Dr P Schiavo dated 15 July 2009.
For those reasons, I am not satisfied that Mr Wilkinson’s neuropathy condition could be considered to be fully treated and stabilised as at the date of cancellation. In those circumstances, no impairment points can be assigned in respect of it under the Impairment Tables.
What points (if any) could be assigned?
Even if, contrary to my view, the neuropathy condition were considered fully treated and stabilised, I do not believe that it would attract any impairment points under the relevant tables. I say that for the following reasons.
The appropriate table under which to assess the effect of the condition on Mr Wilkinson’s hands is Table 2 (Upper Limb Function). As regards the effect on Mr Wilkinson’s lower limbs, the HPAU considered that Dr Adam’s comment, that the L5/S1 protrusion was helpful in understanding symptoms, suggested that “lower limb paresthesia (sic.) may in fact be due to the L5/S1 problems experienced”. As such, the HPAU was of the opinion that, for the purpose of the assessment, the impairment to Mr Wilkinson’s lower limb functioning should be considered as part of the spinal condition.[55] The Secretary relied on the HPAU’s opinion.[56] I do not disagree with that approach. Therefore, I will consider the effect on lower limbs later, in the context of dealing with the spinal condition.
[55] Exhibit 1, T Documents, T8, page 85, Health Professional Advisory Unit Opinion dated 27 October 2016.
[56] Exhibit 19, Secretary’s Statement of Issues, Facts and Contentions dated 3 November 2017, [46].
Mr Wilkinson’s condition is episodic and fluctuating. In September 2015, he told Dr Schiavo that he had been experiencing some severe cramping, describing it as: “Brutal.. Short term five or ten minutes maximum. Absolutely brutal”.[57] In his report for the DSP review, Dr Zischke noted that Mr Wilkinson suffered from episodic paraesthesia in the hands and lower limbs and episodic cramping and pain in the hands and feet.[58] At the hearing before me, Mr Wilkinson said that he had good and bad days.
[57] Exhibit 2C, email from Mr Wilkinson to Dr Paul Schiavo dated 1 September 2015.
[58] Exhibit 1, T Documents, T4, page 52, Medical Report Disability Support Pension Review completed by Dr Mark Zischke dated 19 April 2016.
Section 11(4) of the Rules for applying the Impairment Tables provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects “the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate”.
Returning to Table 2, Mr Wilkinson relied on the assessment of Dr Doolan of October 2017, that his impairment was moderate, attracting a rating of 10 points. In coming to that assessment, the doctor commented that Mr Wilkinson suffered from cramping and spasm of his fingers after a short time on undertaking all the tasks listed in the relevant descriptor.[59]
[59] Exhibit 17A, page 5, report of Dr T Doolan dated 11 October 2017.
For the Secretary, it was said that Dr Doolan’s assessment vastly contradicted the view which he expressed a year earlier, in which he described Mr Wilkinson’s RSDS condition as generally well managed and one which caused minimal or limited impact on his ability to function.[60]
[60] Exhibit 1, T Documents, T10, page 173, Medical Report Disability Support Pension Review completed by
It was contended for the Secretary that Dr Doolan’s report of October 2016 should be preferred as being more proximate to the date of cancellation, compared with the later report that came 15 months after the relevant date.[61] I accept that contention, and prefer Dr Doolan’s October 2016 report as representing a more contemporaneous assessment of Mr Wilkinson’s impairment as at the date of cancellation. That leads me to a consideration of the relevant descriptors under Table 2.
[61] Exhibit 19, Secretary’s Statement of Issues, Facts and Contentions dated 3 November 2017, [45].
The descriptor for moderate functional impairment (10 points) requires the person to have difficulty with most of the following: picking up a one litre carton full of liquid; picking up a light but bulky object (such as a cardboard box) requiring the use of two hands together; holding and using a pen or pencil; doing up buttons or tying shoelaces; using a standard computer keyboard; and unscrewing a lid on a soft drink bottle.
From the evidence before the Tribunal, it is clear that, prior to the date of cancellation, Mr Wilkinson was able to manage most activities using his hands and arms. In describing his accident at home in February 2016, he told Dr Schiavo that he had been pulling a project quad bike with a trolley when it popped out, causing him to fall backwards.[62] At about the same time, he was reporting to Dr Adam that he was able to drive for periods of time.[63] At the hearing, Mr Wilkinson told me that he could drive his manual Toyota Hilux around his property, but would drive his automatic vehicle if he had to drive outside his property (for example, to attend doctors’ appointments). Asked whether he could carry most things (such as a shopping bag or a litre of milk), he said that it would depend on the day; on good days, he could. He said that he could pick up and handle objects. His clothes do not have buttons and he wears footwear without laces, such as thongs. While his partner does the washing, he said that he could do it; he can hang clothes on the clothes line, depending on the particular day. He said that he could make himself a cup of tea, use his computer keyboard, hold a pen and use his touch phone. Based on that evidence, it is apparent that Mr Wilkinson would not experience difficulties with the majority of the tasks (if not all of them) listed in the descriptor for moderate functional impairment.
[62] Exhibit 1, T Documents, T9, page 127, email from Mr Wilkinson to Dr Paul Schiavo dated 14 February 2016.
[63] Exhibit 1, T Documents, T9, page 128, letter from Dr Robert Adam to Dr Andrew Mayo dated 3 March 2016.
Nor do I think, based on the same evidence, that Mr Wilkinson would satisfy the descriptor for mild functional impact (five points). Similarly, that requires the person to have difficulty with most of the following: picking up heavier objects; handling very small objects (such as coins); doing up buttons; reaching up or out to pick up objects. As that descriptor would not be satisfied, I conclude that, as at the date of cancellation, Mr Wilkinson’s neuropathy condition would have had no functional impact on activities using his hands or arms. That is consistent with the assessment of Dr Doolan, as set out in his October 2016 report.
It follows from what I have said that, in the event that (contrary to my finding above) the neuropathy condition were fully treated and stabilised, Mr Wilkinson would nevertheless be assigned zero points under Table 2 in respect of activities using hands and arms.
Spinal condition
The Secretary accepts that Mr Wilkinson’s spinal condition was fully diagnosed as at the date of cancellation.[64] Having regard to the medical evidence before the Tribunal, I believe that concession to be reasonable and appropriate.
Fully treated and stabilised?
[64] Exhibit 19, Secretary’s Statement of Issues, Facts and Contentions dated 3 November 2017, [49].
However, the Secretary contends that the spinal condition was not fully treated and stabilised as at the relevant date. The reasoning behind that stance is related to the separate back injury that Mr Wilkinson suffered a few months before the date of cancellation.
As mentioned earlier, Mr Wilkinson had an accident at home in February 2016. He was pulling a project quad bike with a red trolley and it “popped out”, causing him to stumble backwards and hit his spine against a steel house post.[65]
[65] Exhibit 1, T Documents, T9, page 127, email from Mr Wilkinson to Dr Paul Schiavo dated 14 February 2016.
The Secretary accepts that, prior to that accident, Mr Wilkinson had an underlying back condition. It is acknowledged by the Secretary, correctly in my view, that the evidence suggests that the back condition was well managed and caused minimal impact on Mr Wilkinson’s ability to function for an extensive period prior to the February 2016 accident.[66] An orthopaedic specialist at Redcliffe Hospital, Dr Andrew Mayo, confirmed the year before that an MRI scan of Mr Wilkinson’s cervical spine was normal, that he had a great range of movement in his cervical spine and shoulders, and that he had a non tender lumbar spine.[67]
[66] Exhibit 19, Secretary’s Statement of Issues, Facts and Contentions dated 3 November 2017, [51].
[67] Exhibit 1 T Documents, T9, page 124, medical report of Dr Andrew Mayo dated 12 January 2015.
What the Secretary contends is that the fall in February 2016 resulted in an exacerbation of the spinal condition which was not fully treated and stabilised as at the date of cancellation.[68] I agree with, and accept that contention, based on the following evidence.
[68] Exhibit 19, Secretary’s Statement of Issues, Facts and Contentions dated 3 November 2017, [52].
In his section of the review form, Mr Wilkinson said that he was “currently on anti-inflam” and “talking about physio”.[69] Dr Zischke described both current and future treatment as physiotherapy.[70]
[69] Exhibit 1, T Documents, T4, page 46, Medical Report Disability Support Pension Review completed by
[70] Exhibit 1, T Documents, T4, pages 54-55, Medical Report Disability Support Pension Review completed by
During his interview with the JCA, Mr Wilkinson confirmed that he had resumed physiotherapy in 2016 and was undertaking home exercises.[71] When contacted by the JCA, Dr Zischke said that Mr Wilkinson’s “acute flare up may take 1-2 years to settle”. He added that Mr Wilkinson continued to attend physiotherapy and that he had ceased tow truck driving due to his aggravated back condition.[72]
[71] Exhibit 1, T Documents, T5, page 62, Job Capacity Assessment Report dated 30 June 2016.
[72] Ibid.
Dr Doolan referred Mr Wilkinson for a CT guided bilateral S1 nerve root HCLA injection, which was completed on 12 July 2016, after the date of cancellation.[73]
[73] Exhibit 1, T Documents, T11, page 182, letter Dr Patrick Bergin to Dr T Doolan dated 12 July 2016.
Based on the above, it is apparent that Mr Wilkinson was undergoing further treatment as at the date of cancellation. Consequently, his back condition could not be considered fully treated and stabilised as at that date. Further, Dr Zischke’s comment to the JCA, that the impairment from the fall/exacerbation would take one to two years to settle, casts doubt on whether an impairment rating can be assigned to that impairment, having regard to s 6(3)(b) of the Rules for applying the Impairment Tables. That provision relevantly says that an impairment rating can only be assigned to an impairment if, among other things, the impairment is more likely than not, in light of available evidence, to persist for more than two years. For that reason, and because I do not consider the condition was fully treated and stabilised as at the date of cancellation, I do not believe that any impairment points can be assigned in respect of the spinal condition.
What points (if any) could be assigned?
In case I am wrong in reaching that conclusion, and impairment points could be assigned (contrary to my view), I consider the relevant tables below.
Table 4 relates to spinal function. Mr Wilkinson relied on the report of Dr Doolan, stating that he suffered moderate functional impact (attracting 10 impairment points).[74] The Secretary contended that the appropriate rating would be, at most, five points.[75]
[74] Exhibit 17A, page 2, medical report of Dr T Doolan dated 11 October 2017.
[75] Exhibit 19, Secretary’s Statement of Issues, Facts and Contentions dated 3 November 2017, [54].
The descriptor for moderate functional impairment provides that the person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies: the person is unable to sustain overhead activities; the person had difficulty moving their head to look in all directions; the person is unable to bend forward to pick up a light object placed at knee height; or the person needs assistance to get up out of a chair.
In his report of 4 October 2016, Dr Doolan described the impact of the spinal condition on Mr Wilkinson’s functional ability as: “reduced capacity for bending, sitting, standing, lifting, carrying”.[76] Unfortunately, that statement is very broad and does not provide details of that reduced capacity and in particular, how it affected Mr Wilkinson’s regular activities.
[76] Exhibit 1, T Documents, T10, page 172, Medical Report Disability Support Pension Review completed by Dr Thomas Doolan dated 4 October 2016.
With due respect to Dr Doolan, I have some difficulty reconciling his description of Mr Wilkinson’s functional ability with other evidence before the Tribunal. The clinical notes of Mr Wilkinson’s physiotherapist, Ms Sue Wilmot, reveal that she first saw him in respect of the February 2016 injury on 19 May 2016. A week later, she saw him again. On that occasion, he reported that his pain was less intense and less frequent. On the third visit, on 16 June 2016, the notes record that his back was “almost at usual status”. He suffered an increase in pain with prolonged sitting (about 1.5 hours) or a 20 minute walk, or if he performed aggravating activity. He was encouraged to increase his activity, such as by using a stationary bike, swimming or walking, and to continue flexibility exercises and stretches.[77] Those notes are significant, in that they relate to a period immediately preceding the date of cancellation, and suggest that Mr Wilkinson’s condition was improving. Further, the exercises and activities recommended by Ms Wilmot appear at odds with the functional incapacity described by Dr Doolan in his report.
[77] Exhibit 22, R 9, numbered pages 61 and 62.
Faced with that competing evidence, I am inclined to prefer the contemporaneous and detailed notes of Ms Wilmot over the later and more general report of Dr Doolan. Having regard to Ms Wilmot’s notes, and in the absence of further corroborating evidence, I am not satisfied that the descriptor for moderate functional impairment (10 points) would be met. In those circumstances, I agree with, and accept, the Secretary’s contention that the spinal condition would attract a maximum of five points under Table 4.

Finally, the Secretary contended that Mr Wilkinson’s impairment of lower limb function from the back condition, if fully treated and stabilised (which is not conceded), could be considered under Table 3 (Lower Limb Function). In that case, it was said that the appropriate impairment rating would be zero points under that table.[78] Mr Wilkinson relied on the report of Dr Doolan, that the impairment attracted a rating of five points under the table.[79]
[78] Exhibit 19, Secretary’s Statement of Issues, Facts and Contentions dated 3 November 2017, [56].
[79] Exhibit 17A, page 2, medical report of Dr T Doolan dated 11 October 2017.
The descriptor for mild functional impairment contains two requirements, both of which need to be met in order for the rating to be satisfied. The second of those requirements, in paragraph (2) of the descriptor, requires the person to be unable to stand for more than 10 minutes and/or to be able to mobilise effectively but needing to use a lower limb prosthesis or a walking stick. There is no corroborating evidence to establish either of those matters. I therefore do not believe that Mr Wilkinson would satisfy the descriptor for five impairment points. Accordingly, the correct impairment rating under Table 3 would be zero points.[80]
[80] See Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 11(1)(c).
Bowel condition
In June 2010, Mr Wilkinson was seen in the Surgical Outpatients Clinic of Caboolture Hospital, complaining of bleeding after defaecation and some pain in his anus. He also described symptoms of constipation. His abdomen was found to be soft and non tender. An examination revealed a small skin tag and was very tender. It was suspected that
[81] Exhibit 22, R 1, letter from Dr Andrew Strahan to Dr P Schiavo dated 3 June 2010.
Mr Wilkinson had an anal fissure. He was booked in for a further examination under anaesthetic.[81]
The skin tag was not fixed, nor was the anal fissure, as the surgeon, Dr Mehanna, was concerned that the repair could lead to incontinence.[82]
[82] See note on ibid. and Exhibit 23, page 8, further statement of Mr Wilkinson, undated.
Mr Wilkinson continues to manage the condition through medication and diet.[83] He is on referral to the Gastroenterology Clinic of Caboolture Hospital.[84] He told me that he proposes to have the repair surgery and take the risk of incontinence.
[83] Exhibit 1, T Documents, T4, page 46, Medical Report Disability Support Pension Review completed by
[84] Exhibit 15B, letter from Caboolture Hospital to Mr Wilkinson dated 19 December 2016.
I do not think that this condition could be said to have been fully treated and stabilised as at the date of cancellation. Although Mr Wilkinson has been managing the condition through medication and diet, the fact is that he was only referred to the Gastroenterology clinic for specialist review in December last year, some five months after the date of cancellation.
In any event, even if (contrary to my view) this condition were considered fully treated and stabilised, there is no corroborating evidence of the functional impact under the relevant table, Table 13 (Continence Function).
It follows from what I have said that no impairment rating can be assigned in respect of this condition.
Mental health condition
Mr Wilkinson said that he had been suffering from depression since 1994. He started seeing a psychologist in 2012, but could not strike a rapport with him. He was diagnosed with Post Traumatic Stress Disorder in 2013. He saw a psychiatrist, Dr Chinna Samy, on 17 August this year, and says he has returned to him. He is also in the process of being referred to another service in Caboolture by Dr Doolan.[85]
[85] Exhibit 23, page 3, further statement of Mr Wilkinson, undated.
Notwithstanding those consultations, there was no evidence before me of a diagnosis by a psychiatrist or a clinical psychologist as at the date of cancellation, as required by the Introduction to Table 5 (Mental Health Function). As such, it could not be said that this condition was fully diagnosed at the relevant time. Therefore, no impairment points can be assigned in respect of it.
There is little or no corroborating evidence of any treatment which Mr Wilkinson received over the years, which also makes it difficult to determine whether the condition has been fully treated and stabilised.
Nor is there any corroborating medical evidence of any functional impairment resulting from Mr Wilkinson’s mental health condition as at the date of cancellation.
Other conditions
It was accepted by the Secretary that Mr Wilkinson suffered, or suffers, from several other conditions, including asthma; high cholesterol; left hand fracture; jaw pain; and a cardiac condition.[86]
[86] Exhibit 19, Secretary’s Statement of Issues, Facts and Contentions dated 3 November 2017, [61].
The Secretary contended that in respect of those conditions, there is insufficient evidence to determine whether they were each fully diagnosed, treated and stabilised and if so, what impact they would have on Mr Wilkinson’s ability to function as at the date of cancellation. I agree with, and accept, that contention.
In any event, I note that the asthma and high cholesterol conditions were assessed by Dr Zischke as being generally well managed and as having minimal or limited impact on Mr Wilkinson’s ability to function.[87] Similarly, the jaw pain was considered by a JCA to cause minimal impact on Mr Wilkinson’s capacity to work.[88]
[87] Exhibit 1, T Documents, T4, page 57, Medical Report Disability Support Pension Review completed by Dr Mark Zischke dated 19 April 2016
[88] Exhibit 1, T Documents, T12, page 224, Job Capacity Assessment Report dated 6 November 2008.
Mr Wilkinson is on referral to the Caboolture Hospital Cardiac Medical clinic.[89] He said that he is due for his third appointment at that clinic,[90] which suggests that treatment is still ongoing.
[89] See Exhibit 15C, letter from Caboolture Hospital to Mr Wilkinson dated 25 May 2017.
[90] Exhibit 23, page 8, further statement of Mr Wilkinson, undated.
Earlier this year, Mr Wilkinson first became aware of hernias that pushed through on his right hand side. During the course of obtaining documents for this hearing, he noted that the existence of hernias had been recorded in a radiology report dating back to June 2008, when he was being assessed for fibromyalgia. He was not told of the hernias at the time.[91] He is now on referral for the General Surgery clinic.[92] Even if this condition were able to be considered as part of the present application (about which there is some doubt), there is simply insufficient evidence to make any determination as to whether it was fully diagnosed, treated and stabilised, and if so, what its functional impact was, at the date of cancellation.
[91] Exhibit 22, page 1, letter from Mr Wilkinson to the Tribunal, date stamped 29 November 2017.
[92] Exhibit 23, page 8, further statement of Mr Wilkinson, undated.
It follows from what I have said that I do not consider that any impairment points can be assigned in respect of these other conditions.
Overall impairment rating
To summarise, I do not consider that Mr Wilkinson’s neuropathy, spinal and bowel conditions were fully treated and stabilised as at the date of cancellation. Nor do I consider that his mental health condition was fully diagnosed at that time, as required by the Introduction to Table 5 (Mental Health Function).
As a consequence, none of the conditions attracted impairment points.
Mr Wilkinson therefore did not have 20 points or more under the Impairment Tables and did not satisfy the second of the requirements set out in s 94(1)(b) of the SS Act.
Does Mr Wilkinson have a continuing inability to work?
In view of my finding that Mr Wilkinson did not satisfy the requirement in s 94(1)(b) of the SS Act, it is unnecessary to consider whether he has a continuing inability to work under s 94(1)(c) of that Act.
CONCLUSION
For the reasons I have outlined above, I do not consider that, as at the date of cancellation, Mr Wilkinson’s conditions attracted an impairment rating of 20 points or more under the Impairment Tables. He therefore did not satisfy the requirement under s 94(1)(b) of the SS Act.
As a consequence, Mr Wilkinson did not qualify for DSP as at the date of cancellation. The decision to cancel his DSP was therefore correct.
Accordingly, the decision under review is affirmed.
I appreciate that this decision will be both distressing and frustrating for Mr Wilkinson. However, it should not discourage him from lodging a fresh claim for DSP in the future.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons
for the decision herein of
Senior Member A C Cotter

..............................[Sgd]......................................
Associate
Dated: 18 December 2017

Date of hearing: 1 December 2017

Applicant:

Advocate for the Applicant:

In person

Mr Glen Allison

Advocate for the Respondent:

Solicitor for the Respondent:

Ms Jacky Vetter

Department of Human Services

11 April 2016.

Dr Mark Zischke, dated 19 April 2016.

2 August 2016.

11 April 2016.

Dr Thomas Doolan dated 4 October 2016.

Mr Wilkinson dated 15 April 2016.

Dr Mark Zischke dated 19 April 2016.

Mr Wilkinson dated 15 April 2016.