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

Wilson and Secretary, Department of Social Services (Social services second review) [2016] AATA 623 (19 August 2016)

Division

GENERAL DIVISION

File Number

2016/0999

Re

Barry Wilson

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member A C Cotter

Date 19 August 2016

Place Brisbane
The Tribunal affirms the decision under review.

........................[Sgd]................................................
Senior Member A C Cotter
Catchwords
SOCIAL SECURITY – disability support pension – where applicant has bipolar affective disorder – where applicant has bilateral knee condition – whether conditions are permanent – whether conditions are fully diagnosed treated and stabilised – impairment tables – whether twenty points can be awarded – whether applicant has a continuing inability to work – applicant cannot be awarded twenty impairment points – applicant does not have a continuing inability to work – decision under review affirmed
Legislation
Social Security Act 1991 (Cth) ss 26, 94
Social Security (administration) Act 1999 (Cth) ss 41, 42, Schedule 2 Part 2 cls 3, 4
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

Fuad and Telstra Corporation Limited [2004] AATA 1182

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Kirvan and Secretary, Department of Social Services [2014] AATA 721
Secondary Materials
Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 5, 6, 10, 11
REASONS FOR DECISION
Senior Member A C Cotter
19 August 2016
INTRODUCTION

Mr Barry Wilson made a claim for Disability Support Pension (“DSP”) in July 2015. The claim was rejected on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables. That decision was affirmed on review by an Authorised Review Officer (“ARO”), whose decision was in turn affirmed by the Social Services and Child Support Division (“SSCSD”) of this Tribunal. Dissatisfied with the SSCSD’s decision, Mr Wilson has applied for a review of it by the General Division of the Tribunal. For the reasons I outline below, I consider that decision should be affirmed.
BACKGROUND
Mr Wilson lodged his claim for DSP on 10 July 2015, listing his disabilities as “restricted ankle movement …incapacitated, anxiety, depression”.[1]
[1] Exhibit 1, T Documents, T 4, page 68, Disability Support Claim form dated 10 July 2015.
In support of his claim, Mr Wilson also lodged a medical report completed by his general practitioner, Dr Stephen Lawson, dated 18 August 2015.[2] That report identified two conditions which Dr Lawson considered to have a significant impact on Mr Wilson’s ability to function, namely Bipolar Affective Disorder and bilateral Osteoarthritis of the knees.
[2] Exhibit 1, T Documents, T 5, pages 84- 90, Medical Report of Dr Stephen Lawson dated 18 August 2015.
With respect to the Bipolar Affective Disorder, Dr Lawson indicated that the diagnosis had been confirmed by a psychiatrist, Dr Robert Moyle, on 1 January 2011. The past, current and future treatment was described as “GP and Psychologist/Psychiatrist”. Current symptoms were noted as depression and mania. The impact on Mr Wilson’s ability to function was said to be: “Reduced endurance; Poor memory and concentration; Reduced interpersonal relationships - poor decision making”. Dr Lawson thought that the effect of the condition on Mr Wilson’s ability to function would remain unchanged for the following two years, as Mr Wilson had “reached maximal function”.[3]
[3] Ibid, pages 85-86.
The bilateral Osteoarthritis of the knees was said to have been diagnosed on 1 January 2001, with the past, present and future treatment shown as analgesia and physiotherapy. Current symptoms were noted as pain and reduced mobility. The impact on Mr Wilson’s ability to function was described as “Reduced endurance; Reduced dexterity and movement; Low weight carrying load”. Dr Lawson estimated that the impact on Mr Wilson’s ability to function would persist for more than 24 months.[4]
[4] Ibid, pages 87-88.
Dr Lawson also listed Emphysema/Asthma and Anxiety Disorder as other conditions from which Mr Wilson suffered but which were generally well managed and which caused minimal or limited impact on his ability to function.[5]
[5] Ibid, page 89.
Mr Wilson attended a face to face assessment with a Job Capacity Assessor (“JCA”) in September 2015. While acknowledging that the Bipolar Affective Disorder had been diagnosed by a psychiatrist, the JCA noted that Mr Wilson was not currently engaged in any treatments and had not engaged in any treatment since 2012. It was thought that that a psychiatric review may be suitable to explore pharmacological options and that a psychologist might assist in addressing stress management and grief issues. For that reason, the JCA concluded that the condition was not fully treated or stabilised, such that it could not attract any impairment rating.[6] Similarly, the JCA considered that the bilateral Osteoarthritis of the knees was not fully treated and stabilised, as Mr Wilson had not engaged in any recent conservative treatments or therapies, such as physiotherapy, hydrotherapy and weight management. Again, no impairment rating was recommended in relation to that impairment.[7] As Mr Wilson’s Anxiety Disorder had not been diagnosed by either a psychiatrist or psychologist, that condition was not considered fully diagnosed and capable of attracting an impairment rating.[8] Zero points were recommended in respect of Mr Wilson’s Emphysema, as his condition was noted as having no or limited impact.[9] The JCA concluded that Mr Wilson had a baseline work capacity of 15-22 hours per week and a future work capacity within two years with intervention of 23-29 hours per week.[10]
[6] Exhibit 1, T Documents, T 6, page 93, Job Capacity Assessment (“JCA”) Report dated 8 October 2015.
[7] Ibid, page 92.
[8] Ibid, pages 92-93.
[9] Ibid, page 94.
[10] Ibid, page 95.
Following receipt of the JCA’s report, Mr Wilson’s DSP claim was rejected on the basis that he did not have 20 or more impairment points under the Impairment Tables.[11]
[11] Exhibit 1, T Documents, T 7, pages 97- 98, Centrelink letter to Mr Wilson dated 9 October 2015.
Subsequently, a further report from Dr Lawson, dated 11 October 2015, was lodged.[12] Besides the Bipolar Affective Disorder and the bilateral Osteoarthritis, it listed two further conditions as having a significant impact on Mr Wilson’s ability to function.
[12] Exhibit 1, T Documents, T 9, pages 102-112, further Medical Report of Dr Stephen Lawson dated 11 October 2015.
The first of those additional conditions, “Depression/Anxiety”, was said to be a presumptive diagnosis. “Psychologist and GP” was described as the past, current and future treatment. Dr Lawson described this condition’s impact on Mr Wilson’s ability to function in similar terms to the Bipolar Affective Disorder – the impact was said to be “Reduced endurance; Poor planning and disrupted interpersonal relationships; and Poor concentration and decision making”. Dr Lawson thought that the effect of this condition on Mr Wilson’s ability to function would remain unchanged during the following two years as the condition had reached “maximal steady state” and treatment was for “maintenance only”.[13]
[13] Ibid, 107-108.
The other additional condition, fractured right tibia and fibula, was said to cause Mr Wilson “Reduced endurance and mobility; Reduced dexterity and stability of movements”; and an inability to stand or walk for long periods.[14]
[14] Ibid, pages 109-110.
The report also added “Morbid Obesity” as a condition that was generally well managed and which caused minimal or limited impact on the ability to function. Curiously, it retained the reference to Anxiety disorder as similarly being generally well managed and having minimal or limited impact. That is obviously an error, given Dr Lawson’s description of that condition as one having a significant functional impact.[15]
[15] Ibid, page 111.
Notwithstanding the submission of the further report of Dr Lawson, an ARO affirmed the decision to reject the claim.[16]
[16] Exhibit 1, T Documents, T 10, pages 113-119, Authorised Review Officer’s letter to Mr Wilson, and notes, dated 20 November 2015.
As mentioned earlier, a review by the SSCSD was similarly unsuccessful, although for different reasons.[17]
[17] Exhibit 1, T Documents, T 2, pages 5-10, Social Services and Child Support Division (“SSCSD”) decision and reasons for decision dated 8 February 2016.
Before I consider the issues raised by the current application, it is timely to reflect on the key legislative provisions.
THE LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are: that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 10 July 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[18] Therefore, the relevant period for considering whether Mr Wilson qualified for DSP is between 10 July 2015 and 9 October 2015.
[18] See Social Security (Administration) Act 1999 (Cth) ss 41, 42; Schedule 2, Part 2 cls 3, 4(1).
Previous decisions of both the Tribunal and the Federal Court have emphasised that the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Evidence, such as medical reports that come into being after the relevant period, may still be relevant, but only insofar as they are referrable to an applicant’s condition during the relevant period.[19]
[19] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139, [32] (Deputy President Handley); Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[28] (Besanko J).
The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), a legislative instrument made under the Act.[20] 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.[21] 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.[22]
[20] See Social Security Act 1991 (Cth) s 26(1).
[21] See Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2).
[22] See Ibid, s 6(1).
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.[23] 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.[24]
[23] See Ibid, s 6(3).
[24] See Ibid, s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered: 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.[25]
[25] 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.[26]
[26] See 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.[27]
[27] See Ibid, s 6(7).
An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two 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.[28]
[28] See Ibid, s 11(1).
As regards the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:
(a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B) of the Act); and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity, or if the impairment does not prevent the applicant from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.
A person’s impairment is a “severe impairment” if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are assigned under a single table.[29]
[29] See Social Security Act 1991 (Cth) s 94(3B).
ISSUES FOR THE TRIBUNAL
Based on the evidence that has been provided, there is no dispute that Mr Wilson suffered from a number of medical conditions and that he had physical and psychiatric impairments arising as a consequence.[30] Consequently, the first of the requirements under s 94(1) of the Act is satisfied.
[30] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 9 May 2016, [5.9].
The remaining issues for me to consider are therefore:
a)Whether, at the relevant time, Mr Wilson’s impairments attracted 20 impairment points or more under the relevant Impairment Tables; and
b)If so, whether Mr Wilson had a continuing inability to work within two years of the relevant period.
CONSIDERATION
Did Mr Wilson’s impairments attract 20 or more impairment points?
I address this question by reference to the conditions listed by Mr Wilson and Dr Lawson. Before I do so, there are some preliminary matters with which I should deal.
Preliminary matter – left shoulder injury
At the hearing before me, Mr Wilson sought to provide evidence in relation to an injury which he suffered to his left shoulder in April 2008. As far as I am aware, that was the first occasion on which that injury had been raised in the course of Mr Wilson’s DSP claim. No mention of that injury was made either by Mr Wilson in his claim form or by Dr Lawson in his two supporting reports. From what I can ascertain, the issue was not raised before the SSCSD; the material Mr Wilson provided to it did not appear to contain relevant medical reports relating to that injury.[31] Nor does there appear to have been any reference to the condition and any resulting impairment in the course of the review by the ARO.[32] As the material in question was not put before the SSCSD in particular, I do not consider it is appropriately before the General Division of the Tribunal on review.[33]
[31] See Exhibit 1, T Documents, T 13, pages 122-247, email from Mr Wilson to SSCSD dated 17 February 2016 and attachments.
[32] See Exhibit 1, T Documents, T 10, pages 113-119, letter from ARO to Mr Wilson dated 20 November 2015, and notes.
[33] See, e.g., Fuad and Telstra Corporation Limited [2004] AATA 1182, [5] (Downes J, President).
Notwithstanding the preliminary doubt I expressed at the hearing concerning its relevance to the claim, I accepted copies of the material produced by Mr Wilson and marked them for identification. The report of the Orthopaedic Surgeon, Dr Peter Sharwood, identified a soft tissue injury to the left shoulder. While the condition at that stage (November 2008) was not considered stable, Dr Sharwood thought the long term outlook was good, and that with appropriate management, the condition would resolve within two months.[34] Similarly, another Orthopaedic Surgeon, Dr Kelly Macgroarty, expressed the opinion that the injury would stabilise within two to three months of his report (dated 19 August 2008). He expected that Mr Wilson could return to work on normal hours immediately, albeit with a “heavy lifting restriction”.[35]
[34] Exhibit B, report of Dr Peter Sharwood dated 13 November 2008, pages 2-3.
[35] Exhibit A, report of Dr Kelly Macgroarty dated 19 August 2008, page 3.
Even if I am wrong in my conclusion that the material was not properly before me, I do not consider there is sufficient medical evidence of the functional impact (if any) which this condition had on Mr Wilson at the time of the claim, some seven years after the two reports mentioned above. That view is consistent with both Mr Wilson’s claim for DSP, which fails to mention any relevant upper limb impairment, and the silence on the point by Dr Lawson in his two reports. The inference to be drawn from that is that there was no relevant functional impairment experienced by Mr Wilson during the relevant period.
Preliminary matter – Mr Wilson’s late submissions
More than four weeks after the hearing and just prior to the anticipated publishing of my decision and reasons, Mr Wilson lodged, unsolicited, submissions and attachments totalling some 45 pages. The question is what weight, if any, I should afford those submissions. Before I discuss that question, I set out the relevant background.
After the conclusion of Mr Wilson’s evidence and submissions, I made a number of directions, given the lateness of the hour, and the fact that the hearing had already run for close to five hours. Those directions were that:
(a)Mr Wilson produce to the Tribunal a copy of the report of the psychiatrist, Dr Robert Moyle, dated January 2011 (which Dr Lawson had indicated was available for production), and provide a copy to the Secretary;
(b)the Secretary provide final submissions within 14 days of receipt of Dr Moyle’s report; and
(c)Mr Wilson have seven days from receipt of the Secretary’s final submissions within which to respond to those submissions if he felt it was necessary.
It is important to note that, when I was making these particular directions, Mr Wilson indicated that he did not propose to make any further submissions, even in response to the Secretary’s final submissions. While I acknowledged his statement to that effect, I nevertheless made the direction and stressed that any submissions by him were to be by way of reply only. Mr Wilson accepted that, again indicating that the time allowed would not be necessary. It is also important to note that at several points I emphasised that these final submissions should be succinct.

On 25 July 2016, Mr Wilson wrote to the Tribunal, indicating that he would be delayed in receiving Dr Moyle’s report because his doctor (presumably Dr Lawson), would be away for a few weeks. Mr Wilson then asked for the Tribunal to make its decision without this report so that the decision would be made before 21 August 2016, which is a key census date for his university courses. In particular, he stated that “if a decision could be made prior to the census date it would allow me somewhat clarity, of my future direction.”[36]
[36] Mr Wilson’s letter to the Tribunal dated 25 July 2016.
On learning that Dr Moyle’s report would not be produced, the Secretary’s representatives indicated that their client did not have anything further to add and did not intend to make further submissions. On that basis and in accordance with the direction made at the conclusion of the hearing, no further submissions were required, or envisaged, from Mr Wilson. The Tribunal confirmed that position in correspondence to the parties on 11 August 2016.
On 16 August 2016, Mr Wilson contacted the Tribunal, advising that he might wish to lodge further submissions. The Tribunal responded in writing the next morning, reminding him of the directions made by me, and noting that if he lodged further submissions, it would be in my discretion whether to take them into account. In such a case, it was for him to indicate precisely why he required to make further submissions and explain why they were not made at the hearing (such as fresh evidence coming to hand). He was also advised that the decision and reasons were in the process of being finalised, so that, hopefully, they would be published ahead of his census date.[37]
[37] Tribunal’s email to Mr Wilson dated 17 August 2016
On the afternoon of 17 August, Mr Wilson lodged in person unsolicited further submissions dated 14 August 2016. No indication or explanation was given as to why they were being lodged at such a late stage, or why they were not provided at the hearing. A request was made of Mr Wilson to provide that explanation urgently.[38]
[38] Tribunal’s email to Mr Wilson dated 18 August 2016.
The Tribunal also sought the views of the Secretary.[39] The Secretary’s representatives indicated that their client objected to the admission of further material from Mr Wilson, noting that the time for the provision of further material had passed. They also noted Mr Wilson’s own request that the decision be made before the census date. The lawyers noted that, “at first blush, the further material [did] not raise anything that had not already been canvassed in documentary evidence before the Tribunal… or by [Mr Wilson] during the course of the hearing itself.” Notwithstanding that, they said that if I were minded to consider the further material, the Secretary would require a period of 14 days to undertake a detailed review of the material and file any written submissions that may be made by way of response.[40]
[39] Tribunal’s email to Sparke Helmore dated 18 August 2016.
[40] Sparke Helmore letter to the Tribunal dated 18 August 2016.
Following several telephone conversations between Mr Wilson and the Tribunal’s staff, Mr Wilson wrote to the Tribunal this afternoon, explaining his reasons for seeking to lodge further submissions. He said that he had made several attempts to speak with my support team to clarify when he would have to lodge his submissions. He said he was unaware that the submissions related to Dr Moyle’s report and that he was “of the belief that it was like a ‘closing argument’ situation.” Mr Wilson added that he was also taking the opportunity to provide additional documentary evidence that he was unable to provide at the hearing.[41]
[41] Email from Mr Wilson to the Tribunal, 2:26 pm, 19 August 2016.
At this late stage, I am not prepared to receive Mr Wilson’s late submissions and material. I have reached that conclusion for several reasons.
First, I do not think that Mr Wilson has provided a cogent reason for seeking to lodge further submissions and material. He contends that he was under a mistaken belief as to the purpose of the submissions which were directed at the conclusion of the hearing. However, I do not think that his understanding was incorrect. After Mr Wilson made his final submissions at the hearing, I invited the Secretary’s representative, because of the lateness of the hour, to provide succinct written final submissions. I further directed that Mr Wilson could provide written submissions by way of response to those submissions, even though he told me he did not want to. I took that to be an indication that he had nothing further to say, having already made his submissions at some length. While during the course of the hearing I ruled on the relevance of some documents Mr Wilson sought to produce, at no stage did he indicate to me that he wanted to produce additional documents which were relevant to the issues. As I mentioned earlier, I accepted certain documents concerning Mr Wilson’s upper limb injury, even though my initial reaction was that they were outside the scope of the application; they were marked for identification purposes only. I note that they form part of the additional material Mr Wilson has now lodged with his further submissions.
Second, I do not consider that Mr Wilson will suffer any prejudice as a result of my refusal to receive his material. On my preliminary perusal of that material, it seemed to be a collation of: what had previously been provided in Mr Wilson’s Statement of Facts and Contentions (handed up, for the first time, over four hours into the hearing); a reiteration of some matters on which Mr Wilson gave evidence, or made submissions, at the hearing; some documents which Mr Wilson handed up concerning his upper limb injury (discussed earlier) and which were marked as exhibits A and B for identification; and several new documents, dating back between four and 13 years before his claim for DSP was made. In short, Mr Wilson’s further submissions and material add little, if anything, to what had already been presented; they repeat what had been stated in the earlier Statement of Facts and Contentions or in evidence and submissions at the hearing, or are so dated as to lack any relevance or significance to the issues to be determined by me.
Third, I am concerned that if I were to receive the material now, it would occasion unnecessary delay to the determination of this application, and involve the incurring of unnecessary cost. The Secretary’s representatives have submitted, quite rightly, that if the new material were received by me, they would need time to consider it and make submissions if necessary. Further, I am not convinced that such a course would not lead to another round of submissions at further cost, both in terms of time and money. Given the view I have formed from my initial perusal of the further submissions and additional material, I would also query the utility of any such exercise. Importantly, too, for Mr Wilson, any delay would deprive him of the certainty he requires ahead of his university census date. Those various considerations I mention are of particular importance to the Tribunal, having regard to its objectives (among others) of providing a mechanism of review which is not only fair and just, but also economical and quick.[42]
[42] See Administrative Appeals Tribunal Act 1975 (Cth), s 2A(b).
Consequently, I have not taken into account Mr Wilson’s further submissions and further material, provided to the Tribunal on 17 August 2016.
Bilateral knee condition
There is no dispute that this condition is long standing and was fully diagnosed during the relevant period.[43]
[43] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 9 May 2016, [5.18].
What is disputed is whether the condition was fully treated and stabilised at the relevant time. Dr Lawson confirmed that there had been no referral to a specialist for this condition. He expected the impact of this condition would persist for longer than 24 months and that the impact would remain unchanged. Although Dr Lawson noted that past, current and future treatment was analgesia and physiotherapy, Mr Wilson clarified with the JCA that he uses paracetamol to manage pain and engages in his own physiotherapy (that is, he does not consult with a qualified physiotherapist). As Mr Wilson had not engaged in any recent conservative treatments/therapies such as physiotherapy, hydrotherapy and weight management to assist with the impact of this condition, the JCA did not consider it to be fully treated and stabilised. Based on that assessment, the Secretary contended that no impairment points could be assigned in respect of the impairment.[44]
[44] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 9 May 2016, [5.18] – [5.20].
At the hearing, Mr Wilson told me that he had undergone physiotherapy sessions previously, in 2001 to 2003 and again in 2008 to 2009 (and possibly 2010). He reiterated what he told the SSCSD, that shortly before that hearing in early 2016, he recommenced physiotherapy at the Royal Brisbane Hospital. He also told me that in 2013, he had applied for two gym memberships in an attempt to manage his weight, but did not proceed with either. Asked why he had not continued with physiotherapy in the intervening years, Mr Wilson said that he could not afford to continue with that treatment. In any event, he said that he had undertaken his own exercises which were the same as those which a physiotherapist would have him do. He also told said that his medical advice was that physiotherapy would be unlikely to improve his condition. However, he did not produce any medical reports corroborating that.
Given the long standing nature of this condition, the fact that Mr Wilson has undergone previous courses of physiotherapy without, apparently, any significant improvement, and the fact that he has continued to undertake his own physiotherapy exercises, I am prepared to accept that this condition was fully treated and stabilised.
The question is therefore what points should be assigned in respect of the impairment under the relevant table, Table 3 (Lower Limb Function). For the Secretary it was contended that even if the condition were fully diagnosed, treated and stabilised, 0 points should be assigned.[45] At the hearing, Mr Wilson submitted that 10 points should be assigned (he denied having previously submitted to the SSCSD[46] that an assignment of five points was appropriate).
[45] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 9 May 2016, [5.21].
[46] Exhibit 1, T Documents , T 2, page 8, SSCSD’s decision and reasons for decision dated 8 February 2016, [18].
Mr Wilson told the JCA that while he had restricted movement of the Achilles tendon in the right ankle, he was nevertheless able to walk without difficulty. He did, however, find using the stairs “effortful”. He did not require a walking aid.[47] He told the SSCSD that he could not stand for long (perhaps between five and 10 minutes) and would drive, rather than walk, to the local shops. At the shops, he could walk around, although at his own pace. He used elevators where available. If he had to use stairs, he took them very cautiously. He avoided uneven ground.[48]
[47] Exhibit 1, T Documents, T 6, page 92, JCA report dated 8 October 2015.
[48] Exhibit 1, T Documents, T 2, page 8, SSCSD’s decision and reasons for decision dated 8 February 2016, [15].
In his Statement of Facts and Contentions, Mr Wilson vehemently denied having told the JCA that he could walk without difficulty. He did agree, however, that he could walk around a shopping centre using a trolley for support and walked around his University campus, albeit at a very slow pace.[49] In terms of the degree of his impairment, he noted that the JCA had stated that his personal factors had a high impact on his ability to work, obtain work or look for work.[50]
[49] Exhibit 3, Mr Wilson’s Statement of Facts and Contentions dated 19 July 2016, page 6.
[50] See ibid, and Exhibit 1, T Documents, T 6, page 96, JCA report dated 8 October 2105.
I do not consider that Mr Wilson satisfies the descriptors in paragraph (1) for 10 impairment points. He is able to walk without difficulty, albeit slowly, around a shopping centre (using a trolley for support) and his university campus. He is able to use the stairs (albeit cautiously) without assistance and is able to stand for between five and 10 minutes. As to the JCA’s recorded comment on the impact on his ability to work, I believe that needs to be read in context. It is directed at work capacity, rather than functional impact, and needs to be read with the entire report, including the JCA’s views on the application of the respective tables. In any event, I do not regard myself as bound by that comment when undertaking my own consideration of the table.
As to the descriptors for five points, Mr Wilson would be able to satisfy paragraph 1(c), in that he finds using the stairs effortful. He does not require a walking stick to mobilise effectively (thereby ruling out paragraph (2)(b) of the descriptors). Although Mr Wilson told the SSCSD that he could only stand for five to 10 minutes, the Secretary contended that his self-report was not supported by corroborating evidence, as required by subs 8(1) of the Rules for applying the Impairment Tables and the Introduction to Table 3. While I appreciate that Dr Lawson’s report is not as specific as the language used in the table, he does state that Mr Wilson is unable to stand for long periods.[51] I therefore think that five impairment points should be assigned in respect of this condition.
[51] Exhibit 1, T Documents, T 9, page 110, Medical Report of Dr Stephen Lawson dated 11 October 2015.
Bipolar Affective Disorder
Dr Lawson’s two reports refer to a diagnosis having been made by a psychiatrist, Dr Robert Moyle, on 1 January 2011. However, that doctor’s report was not produced at the hearing, notwithstanding that Dr Lawson indicated that it was available. Following the hearing, Mr Wilson attempted to obtain a copy of the report but his doctor was away.[52] For present purposes, I am prepared to accept Dr Lawson’s statement about the existence of the report and give Mr Wilson the benefit of any doubt in that regard. I therefore accept that this condition was fully diagnosed at the relevant time.
[52] See letter from Mr Wilson to the Tribunal dated 25 July 2016.
However, I do not think that this condition could be considered to have been fully treated and fully stabilised at the relevant time. Mr Wilson confirmed that he was first referred to Dr Moyle in 2011 and that he had 10 sessions with that doctor over a 12 month period. At the time of the JCA assessment, Mr Wilson was not engaged in any treatments with either a psychiatrist or a psychologist and had not had any sustained treatment since 2012. He was not taking any medication and indicated that he had no interest in doing so.[53]
[53] Exhibit 1, T Documents, T 6, page 93, JCA report dated 8 October 2015.
Mr Wilson told me that he had ceased seeing Dr Moyle because he “didn’t get anything out of it”. He does not believe that psychiatric or psychological treatment would significantly improve his condition, but that he would be willing to have such treatment if he thought it would benefit him. In his Statement of Facts and Contentions, Mr Wilson said that he had a “morbid fear” of the effects of pharmacological treatment in relation to his mental health issue, quoting an extract from an unattributed “academic journal” (which was not produced) to the effect that great clinical care needs to be exercised in the diagnosis and treatment of Bipolar Disorder. He also said that he was in fear of the effects of pharmacological treatment and its potential side effects on his tertiary studies and general coherency. He thought that pharmacological treatment of a former workmate was the catalyst for the latter’s suicide in 2006.[54]
[54] Exhibit 3, Mr Wilson’s Statement of Facts and Contentions dated 19 July 2016, page 10.
The JCA observed that a psychiatric review may be suitable to explore pharmacological options and that engaging with a psychologist to address stress management and grief issues may help address Mr Wilson’s recent symptoms.[55]
[55] Exhibit 1, T Documents, T 6, page 93, JCA report dated 8 October 2015.
In each of his reports, Dr Lawson also apparently thought that Mr Wilson was receiving, and should continue to receive, treatment by a psychiatrist or psychologist, describing that as part of the past, current and future treatment of this condition.[56] A medical certificate that he completed on 9 October 2015 went further, including “meds” (which I assume to be a reference to medication) as part of Mr Wilson’s past, current and future treatment regimes.[57]
[56] Exhibit 1, T Documents, T 5, pages 85-86 and T 9, pages 103-104, Medical Reports of Dr Stephen Lawson dated 18 August 2015 and 11 October 2105.
[57] Exhibit 1, T Documents, T 8, page 100, Medical Certificate of Dr Stephen Lawson dated 9 October 2015.
I am not satisfied that Mr Wilson’s explanations for his lack, or refusal, of treatment are justified and that he was fully treated at the relevant time.
In the absence of such treatment as recommended by the JCA and contemplated by the treating general practitioner, Dr Lawson, I do not consider there is evidence that Mr Wilson’s symptoms were unlikely to show significant improvement within two years of the relevant period. I therefore do not consider that his condition was fully treated or fully stabilised.
Consequently, no impairment points can be assigned to in respect of this condition.
Even if, contrary to my view, Mr Wilson’s condition was fully treated and stabilised at the relevant time, and could be assigned an impairment rating, I do not believe that it would attract more than five points under the relevant table, Table 5 (Mental Health Function). That rating would acknowledge that, consistent with Dr Lawson’s reports, Mr Wilson’s condition had a mild impact on his interpersonal relationships, concentration and task completion, and behaviour, planning and decision-making.
Although Mr Wilson contended that his impairment should attract 10 impairment points, I do not consider that such a rating would be warranted.
Mr Wilson told the SSCSD that he lives alone. His 19 year old son, who has special needs, stays on weekends. His 21 year old daughter and her boyfriend visit once per month. Otherwise, he says that he is estranged from most of his relatives. Mr Wilson drives himself to see Dr Lawson, generally fortnightly, and to attend university. He occasionally catches public transport. He is not fearful of travelling to unfamiliar areas. He has a friend whom he sees every couple of months. He was also able to undertake study at university level since 2004, although he has been excluded a number of times for failing too many subjects. He said that he was unable to concentrate for more than 15 to 20 minutes.[58]
[58] Exhibit 1, T Documents, T 2, page 9, SSCSD’s decision and reasons for decision dated 8 February 2016, [23].
At the hearing before me, Mr Wilson contended that he had moderate difficulties, with each of the 10 point descriptors being satisfied. With respect to self-care and independent living, he said that he looks after his son first and starves himself. I do not consider that fact addresses the relevant descriptor; if anything, it highlights that Mr Wilson is able to live independently and care for another, rather than rely on the support of another because of his mental health condition. As to social/recreational activities and travel, Mr Wilson said that he does not go out at all. However, that appeared to be driven by his finances rather than his condition. In any event, he confirmed that he goes out to both the doctor and to attend university. As mentioned earlier, he told the SSCSD that he was not fearful of travelling to unfamiliar places. He has ongoing contact with his son and daughter. He also told the hearing that he had no difficulty making friends, but keeping them was more difficult. As to concentration and task completion, Mr Wilson confirmed that he was still studying at university and had in fact passed his subjects in the first semester of 2016. He said that he starts a lot of jobs and eventually finishes them, but in a longer timeframe. I note that for the present hearing, he prepared a 15 page Statement of Facts and Contentions and had no apparent difficulty in representing himself at the hearing which lasted close to five hours. With respect to behaviour, planning and decision-making, Mr Wilson admitted to temper outbursts and depression. As to the work/training capacity descriptor, he also acknowledged being engaged in interpersonal conflicts at work. Based on that analysis, I consider that Mr Wilson meets only two (paragraphs (e) and (f)) of the six descriptors for 10 points. As the table requires the applicant to have moderate difficulties with most of the descriptors, I do not believe that he would satisfy the requirements for 10 points.

I therefore consider that no impairment rating can be assigned to Mr Wilson as his condition was not fully treated and stabilised. Even if it were, I do not think that, on the evidence available, his impairment would attract more than five points under Table 5.
Depression/Anxiety
In his second report of 11 October 2015, Dr Lawson included Depression/Anxiety as an additional significant condition affecting Mr Wilson’s functional capacity. He stated that the diagnosis was presumptive and that no further investigations or tests were planned to confirm the diagnosis; the only specialist consultation referred to was that with the psychiatrist, Dr Moyle, some three years earlier, on 1 July 2012.[59]
[59] Exhibit 1, T Documents, T 9, page 107, Medical Report of Dr Stephen Lawson dated 11 October 2015.
That assessment is in stark contrast to the opinion that Dr Lawson expressed in his first report less than two months earlier, when he described this condition as generally well managed and having minimal or limited impact on Mr Wilson’s ability to function.[60] Significantly, no explanation has been offered for what appears to have been a sudden deterioration of the previously well managed condition.
[60] Exhibit 1, T Documents, T 5, page 89, Medical Report of Dr Stephen Lawson dated 18 August 2015.
Giving Mr Wilson the benefit of the doubt and assuming, for present purposes, that his condition was fully diagnosed, I do not consider that this condition could be said to be fully treated and fully stabilised.
While Dr Lawson anticipated that Mr Wilson would receive further treatment from him and a psychologist,[61] there is no evidence of Mr Wilson having been treated by a qualified psychologist either before the date of claim or during the relevant period; Mr Wilson had ceased seeing his psychiatrist, Dr Moyle, several years earlier. Rather, Mr Wilson seemed content in seeing Dr Lawson on a regular basis. In particular, he eschewed any suggestion of consulting a psychiatrist:
I do not believe that a physiatrist [sic.] would be of further benefit to my situation as I do not believe that I can optimize my life any better than I am currently doing @ present and I will not, I repeat, will not take anti depressants. As I believe that I have an addictive personality and I am in morbid fear of ‘when I did not take them’.[62]
[61] Exhibit 1, T Documents, T 9, page 107, Medical Report of Dr Stephen Lawson dated 11 October 2015.
[62] Exhibit 1, T Documents, T 13, page 129, letter from Mr Wilson dated 8 February 2016.
I do not believe that Mr Wilson’s failure to consult a qualified psychologist or psychiatrist, or to consider medication to ameliorate his condition, was reasonable. Consequently, I do not think that his condition was fully treated at the relevant time.
Particularly in light of the sudden and unexplained deterioration in his condition during, or close to, the relevant period, I also have doubts as to whether it could be considered to be fully stabilised at that time.
As I do not think that his condition was fully treated and stabilised, it cannot attract any impairment points under Table 5.
Even if I am wrong in that view, I note that Dr Lawson’s first Medical Report of 18 August 2015 indicated that Mr Wilson’s condition was generally well managed and caused minimal or limited impact on his ability to function.[63] If, contrary to my conclusion, impairment points could be assigned, the views I expressed in that regard with respect to Bipolar Affective Disorder are equally apposite here; Mr Wilson’s impairment would attract no higher than five impairment points. Having regard to s 10(6) of the Rules for applying the Impairment Tables, such a rating could not be counted more than once. No independent impairment rating could therefore be given for this condition.
[63] Exhibit 1, T Documents, T 5, page 89, Medical Report of Dr Stephen Lawson dated 18 August 2015.
Fractured right tibia and fibula
This condition being long standing, there is no doubt that it was fully diagnosed at the relevant time.
In his second Medical Report, Dr Lawson noted that future/planned treatment of this condition involved rehabilitation and physiotherapy. He considered that Mr Wilson had reached the maximum level of recovery.[64] While I note that Mr Wilson had commenced physiotherapist at the Royal Brisbane Hospital shortly before the SSCSD hearing, I am prepared to accept, in light of Dr Lawson’s opinion, that this condition was fully treated and stabilised at the relevant time, and so could attract impairment points.
[64] Exhibit 1, T Documents, T 9, pages 109-110, Medical Report of Dr Stephen Lawson dated 11 October 2015.
As this condition causes similar impairments to those from the bilateral Osteoarthritis in the knees, a single rating is to be attributed, so as to avoid ‘double counting’.[65] I have already considered the impairment rating under Table 3 (Lower Limb Function) in the context of the bilateral knee condition; my comments there are equally apposite here.
Other conditions
[65] See Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth), ss 10 (5) and (6).
Emphysema/Asthma
In both his reports, Dr Lawson stated that this condition was well managed and had minimal or limited impact on Mr Wilson’s ability to function.[66]
[66] Exhibit 1, T Documents, T 5 (page 89) and T 8 (page 111), Medical Reports of Dr Stephen Lawson dated 18 August 2015 and 11 October 2015.
At the hearing, Mr Wilson contended that the impairment from this condition should be considered under Table 1 (Functions requiring Physical Exertion and Stamina). However, the medical evidence he produced at the hearing related to his lower limb complaints (which have already been considered under Table 3) and not his respiratory/cardiac condition. He conceded that, apart from Dr Lawson’s report, he had no medical evidence in relation to the latter condition.
In view of Dr Lawson’s assessment and in the absence of other evidence, I consider that this condition attracts 0 points under Table 1.
Morbid obesity
While this condition was mentioned in Dr Lawson’s second Medical Report[67], there is no medical evidence concerning diagnosis, treatment or functional impact. I therefore do not consider that it can attract any impairment points on the basis that it was not fully diagnosed, treated and stabilised at the relevant time. Even if it could attract points, 0 points should be assigned, given Dr Lawson’s assessment that the condition is well managed and has limited or minimal functional impact.
[67] Exhibit 1, T Documents, T 8, page 111, Medical Report of Dr Stephen Lawson dated 11 October 2015.
Substance abuse
This condition is not mentioned as a stand alone condition in any of the medical evidence produced in relation to the relevant period. Rather, it arises from Mr Wilson’s uncorroborated self-report. Where the use of alcohol or illicit substances is mentioned by medical professionals, it is only as “Illegal drug use” (or similar), not abuse, and is only mentioned as a part of Mr Wilson’s patient history, not as a condition in its own right.[68] I therefore do not consider this condition to be fully diagnosed, treated and stabilised. No points can therefore be assigned to it. Even if they could, the corroborating medical evidence does not indicate that this condition impairs Mr Wilson at all, such that zero impairment points would be assigned.
[68]See e.g.: Exhibit 1, T Documents, T5, page 86, Medical Report of Dr Stephen Lawson dated 18 August 2015; Exhibit 1, T Documents, T 8, page 104, Medical Report of Dr Stephen Lawson dated 11 October 2015.
Impairment points – overview
It follows from what I have said that, at the relevant time, Mr Wilson’s impairments did not attract 20 impairment points or more under the relevant tables; I have found that a total five impairment points could be assigned under Table 3 (Lower Limb Function). As such, he was not qualified for DSP at the relevant time because he was unable to meet the requirement in s 94(1)(b) of the Act.
Did Mr Wilson have a continuing inability to work?
In view of my conclusion that Mr Wilson did not have 20 points or more under the Impairment Tables and therefore did not qualify for DSP, it is not necessary for me to consider this issue.
However, for completeness, I note that even if Mr Wilson could attract the requisite total number of impairment points under the tables, he would not be considered to have a severe impairment, in that he would not attract 20 points under a single table. In those circumstances, he would be required to have actively participated in a Program of Support (“POS”) for a total of 18 months in the 36 months preceding the date of his claim. According to the Referral Summary, he did not satisfy that requirement.[69]
[69] See Exhibit 1, T Documents, T 16, pages 254-260, Referral Summary
Mr Wilson contested that summary, pointing to the courses he had undertaken at university and submitting that his enrolment in them constituted active participation in a POS. The Secretary contended that the university subjects in which Mr Wilson enrolled did not meet two of the criteria specified in s 9 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth). Those subjects were not, as required by paragraph (b), “specifically tailored” to address Mr Wilson’s level of impairment, individual needs or barriers to employment; rather, they were general subjects offered by the university as part of a degree course. Nor did those subjects provide vocational, rehabilitation or employment services with a particular focus on developing the skills that Mr Wilson required to improve his capacity to prepare for, find or maintain work (as required by s 9(c)).
In support of her contention, the Secretary’s lawyer referred me to the decision of the Tribunal in Kirvan and Secretary, Department of Social Services.[70] Mr Wilson submitted that decision was distinguishable, as it concerned a hairdresser enrolled in a real estate course, whereas Mr Wilson says that he was undertaking his course because he had been advised to seek a sedentary occupation. I do not think that addresses the general nature of the course offered in the present case. I therefore accept the Secretary’s submission and consider that Mr Wilson’s enrolment in the university subjects did not constitute active participation in a POS. He therefore did not satisfy the relevant requirement.
[70] [2014] AATA 721, (Deputy President Bean).
Further, I note that the JCA assessed Mr Wilson as having a baseline work capacity of 15 to 22 hours per week and a capacity for work within two years with intervention of 23 to 29 hours per week.[71] In the absence of other evidence in that regard, it is unlikely that Mr Wilson would be able to satisfy the third of the requirements for DSP, namely, that he had a continuing inability to work.
[71] Exhibit 1, T Documents, T 6, page 95, JCA report dated 8 October 2015.
CONCLUSION
For the reasons outlined above, I do not consider that Mr Wilson qualified for DSP at the relevant time because his impairments did not attract 20 points or more under the Impairment Tables. Even if, contrary to the view I have formed, Mr Wilson had the requisite total number of points, I doubt whether he would be able to satisfy the requirement as to continuing inability to work.
Accordingly, the decision under review is affirmed.

I certify that the preceding 91 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter
.......................[Sgd].................................................
Associate
Dated 19 August 2016

Date of hearing 19 July 2016

Date final submissions received 19 August 2016

Applicant In person

Advocate for the Respondent Claire Campbell

[2016] AATA 623

19 August 2016

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Division	GENERAL DIVISION
File Number	2016/0999
Re	Barry Wilson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member A C Cotter
Date	19 August 2016
Place	Brisbane

Date of hearing	19 July 2016
Date final submissions received	19 August 2016
Applicant	In person
Advocate for the Respondent	Claire Campbell