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

[2019] AATA 24

Woolterton and Secretary, Department of Social Services (Social services second review) [2019] AATA 24 (15 January 2019)

Division:GENERAL DIVISION

File Number:           2018/2304

Re:Michael Woolterton

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:15 January 2019

Place:Perth

The Tribunal affirms the decision under review.

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

Member C Edwardes

CATCHWORDS

SOCIAL SECURITY – disability support pension – medical conditions – widespread osteoarthritis – groin pain – shoulder pain – elbow pain  – qualification period – fully diagnosed – not fully treated and stabilised – impairment tables – no participation in program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c), s 94(2),
s 94(3B), s 94(3C)

Social Security (Administration) Act 1999 (Cth) – s 179, Sch 2 cl 4 (1)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252
Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – s 5, s 7(1), s 7(2)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5),
s 6(6), s 6(7), s 7, s 8(1), s 9, s 10, s 11, s 11(1)(c)
Department of Social Security, Guide to Social Policy Law: Social Security Guide (Department of Social Security, Version 1.251, 2 January 2019)

REASONS FOR DECISION

Member C Edwardes

15 January 2019

THE APPLICATION

1. This is an application for the review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 3 April 2018 (T2, 6-12).  The AAT1 affirmed a decision of the Department of Human Services (Centrelink) to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 27 March 2017 (T38, 193-222).

   INTRODUCTION

2. On 27 March 2017, the Applicant lodged a claim for DSP involving the following medical conditions (T38, 193-222):

   Osteoarthritis of lumbar spine with resultant spinal stenosis; scoliosis; severe left hip osteoarthritis; rotor cuff shoulder bilateral; medial and lateral tear in knees; epicondylitis with tendon rupture; bilateral plantar fasciitis of feet; osteoarthritis in most joints…  golfers/tennis elbow both left and right; and pain left from hernia operations.

3. The claim was rejected by Centrelink and the Applicant was advised of this rejection by letter dated 19 August 2017 (T40, 236-7).  The application was rejected on the basis that the Applicant did not have an impairment rating of 20 points or more.

4. The Applicant requested review of the decision by Centrelink.  The review was undertaken by an Authorised Review Officer (ARO) of the Department of Human Services and the Applicant received notification of that review on 5 December 2017 (T42, 239-44).

5. The ARO advised the Applicant of a number of findings (T42, 239-44):

   ·Your conditions of osteoarthritis, inverterbral disc disorder, lower limb deficiencies, hernia, rotator cuff injury, bursitis and musculo-skeletal disorder are not accepted as being permanent as they have not been fully treated and stabilised.

   ·Your total impairment rating is nil.

   ·You do not have an impairment rating of 20 points or more.

   ·You do not have a continuing inability to work 15 hours per week or more because of your impairment.

6. As a result of the decision of the ARO, the Applicant lodged an application with the AAT1.  The AAT1 affirmed the decision in an AAT1 decision dated 3 April 2018.  The AAT1 determined that the Applicant’s medical conditions generated no impairment points under the impairment tables (T2, 6-12).

7. The AAT1 made the following findings (T2, 6-12):

   Condition 1 – groin pain

   …

   28.      The tribunal noted the comments of Dr Ben Kimberley, orthopaedic surgeon, who saw Mr Woolterton for a variety of problems.  In his letter dated 11 December 2017 he noted that Mr Woolterton had persisting groin pain following hernia surgery – Dr Kimberley felt the pain was related to arthritis of the hip.

   29.      The tribunal determined that the problem of groin pain is not fully diagnosed, and is not fully treated or stabilised.  It generates no impairment points.

   Condition 2 – widespread osteoarthritis

   …

   32.      The tribunal noted the letter from Dr Kimberley, dated 11 December 2017, who said he was happy to proceed with knee arthroscopy and hip joint replacement.

   33.      The tribunal determined that the problems of widespread osteoarthritis are fully diagnosed, but are not fully treated or stabilised.  They generate no impairment points.

   Condition 3 – shoulder pain

   …

   35.      The tribunal noted the report of a shoulder ultrasound (side unspecified) taken in August 2015.  This showed some tendinosis and calcification.

   36.      The tribunal determined that the problem of shoulder pain is not fully diagnosed, and is not fully treated or stabilised.  It generates no impairment points.

   Condition 4 – elbow pain

   …

   38.      The tribunal determined that there is insufficient information to consider this problem for an impairment rating.

8. As a result of the above, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 29 April 2018 for a review of the AAT1 decision dated 3 April 2018 (T1, 1-5).

9. The Applicant lodged this claim for review on the basis that his application to the AAT1 failed because his conditions generated no points under the impairment tables (T1, 1-5).

10. The Application for review stated (T1, 1-5):

    I believe that the AAT’s decision is wrong and a different decision should be made, this is the third time that I have applied for the disability pension in the last 3¾ years.

    The information I provided was not documented properly or taken into account my conditions and the law was not applied properly.  My GP has stated that my Osteoarthritis is not going to get any better regardless of any other treatments for any other ailments.

    It is stated by my GP that any other treatment (I have a FEAR of any major surgery) to do with my Osteoarthritis is unlikely to be of any significant functional Improvement in the future let alone 2 years with chronic Back, Neck and shoulder pain & all my joints.

    I have basically burnt my body out and the Insomnia I have caused by pain waking me up is there all the time.

    With the pain killers I’m on No [sic] company would be able to insure me in the work place as I would be classed as a liability.

    My Osteoarthritis is widespread totally impairing me.  My walking is very restricted and wobbly I cannot really walk a straight line.  I have to use my hands to lean on and balance on things.

    My ability to stand is restricted as is sitting.  I have permanent chronic back pain and neck pain also cannot sit down + straighten legs out properly or especially bend knees down and get back up.  Same as for shoes someone has to do my laces up and help me.

    My back has a bend in it scoliosis that does not help.

    I feel chronic fatigued most of the time with Insomnia.  N.B. I have to sleep whenever I can, to make up for lost sleep.  I believe Table 20 Chapter 6 & Table 5 Chapter 22 [sic].  Would only result in marginal functional improvement that does not do anything for the rest of my body.

    I also have a continuing inability to work confirmed in writing by my GP and Specialist.

    My pain from a Hernia Operation is still present.  I’ve had them look at it but to no good, when it was first done there was talk that they went through a nerve.

    With the impairments of my condition of widespread Osteoarthritis affecting hips, neck, knees, hands, ankles, shoulder and elbow pains I satisfy paragraph 94(1) a [sic] of the Act that is fully diagnosed, fully treated with anti inflammatorys [sic] and pain killers and fully stabilised and unlikely of any improvement in future let alone, 2 years time. I’m only getting worse. Some days I cannot get out of bed.

    I do exercises, pool exercises, stretching as it lets me.

    I now cannot afford to have things done all the time to help me with pain, as I’m only on Newstart.

    Dr Kimberley said if things get worse down the track he could do it.  But that is where I’m in FEAR of any major operations as it’s ‘not’ going to fix the rest of me and there is an act that covers this.  Both my GP and Dr Kimberley said I was probably too young anyway to have anything done.

    I’m on Lyrica, Palexia, Panadeine Forte and anti-inflammatory on a regular daily basis.

    (Original emphasis.)

    RELEVANT LEGISLATION

11. The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

12. The Tribunal has jurisdiction to hear this matter pursuant to s 179 of the Administration Act. Section 179 of the Administration Act states that:

    (1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.

13. Section 94 of the Act provides the criteria for DSP, relevantly:

    (1)A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)one of the following applies:

    (i)     the person has a continuing inability to work;…

    Assessing impairments and assigning an impairment rating

14. The Impairment Tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables”.

15. Section 94(1)(b) of the Act requires the Tribunal to decide whether the impairments of the Applicant would generate an impairment rating of 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:

    [5.]… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.

    [6.]The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

16. Sections 6(5), 6(6) and 6(7) of the Determination provide guidance in assessing whether or not a condition is permanent. Section 8(1) of the Determination requires that symptoms reported by a person in relation to their condition can be taken into account only where there is corroborating evidence.

17. Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using Impairment Tables and how to assign impairment ratings. In particular, s 11(1)(c) of the Determination states that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.”

    Continuing inability to work

18. As set out above in s 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to s 94(2) of the Act:

    2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases – either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)    if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    (Emphasis added.)

19. “Severe impairment” is defined in s 94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. (Original emphasis.)

20. Section 94(3C) of the Act states that a person has actively participated in a program of support (POS) if the person has satisfied the requirements specified in a legislative instrument made by the Minister. 

21. Relevantly, s 5, s 7(1) and s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) require generally, that a person is to participate in a POS for 18 months in the 36 months prior to the date of the relevant claim for DSP.

    Qualification Period

22. Section 94 of the Act must be read in conjunction with Sch 2 cl 4(1) of the Administration Act. In accordance with the requirements in Sch 2 cl 4(1) of the Administration Act, there is a 13 week qualification period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case, the Applicant lodged the claim for DSP on 27 March 2017 (T38, 193-222). Therefore, the 13 week period is from 27 March 2017 to 26 June 2017 inclusive, and is known as the “Qualification Period”.

23. For a claim to be successful, a person must be qualified for DSP during the Qualification Period.  Changes in medical conditions that occur later are not relevant to the claim.  They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1].

24. The Tribunal is also assisted by the Guide to Social Policy Law: Social Security Guide (Department of Social Services, Version 1.251, 2 January 2019) (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

    ISSUES

25. The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP pursuant to s 94(1) of the Act during the Qualification Period.

26. This requires consideration of whether at the time of the Qualification Period:

    (a)the Applicant had any physical, intellectual or psychiatric impairment;

    (b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and

    (c)

    if so, whether the Applicant had a “continuing inability to work” as defined in

    
    

    s 94(2) of the Act.

    EVIDENCE

27. The matter was heard in Perth on 10 December 2018.  The Applicant appeared in person and was assisted by Mr Borzikovski.  The Respondent was represented by Ms Roberts from Mills Oakley.

28. The Tribunal would like to thank all parties for the assistance they provided during this hearing.

29. The Tribunal had the following evidence before it:

    ·Letter from Dr Esfahani dated 19 October 2018 (Exhibit A1);

    ·Report from Dr Thomson to Dr Lai dated 18 July 2018 (Exhibit A2);

    ·Statement of Dr Ghanim dated 9 July 2018 (Exhibit A3);

    ·Medical certificate from Dr Esfahani dated 9 March 2017 (Exhibit A4);

    ·T documents (T1-T47, 1-286) (Exhibit R1); and

    ·Statement of Facts, Issues and Contentions (SOFIC) dated 16 November 2018 (Annexures A-E are incorporated) (Exhibit R2).

30. The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing.  Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.

31. The Secretary made the following contentions in respect to the medical conditions of the Applicant (R2):

    Hernia/groin pain

    …

    5.15.The Secretary contends that this condition cannot be considered to be fully diagnosed, treated and stabilised, and therefore cannot be rated under the Impairment Tables.

    5.16.The Secretary notes that the reports of Dr Kimberly and Dr Esfahani indicate that this condition is linked to arthritis, and therefore contends that there is not sufficient clarity to consider this condition independently of the Applicant’s arthritis condition.

    5.17.Further, the Secretary contends that even if this condition is considered independently to the Applicant’s arthritis condition, the Secretary contends that this condition was not fully treated and stabilised, because the planned treatment at a pain management clinic had not been completed as at the qualification period.

    5.18.The Secretary considers that pain management is a reasonable treatment for this condition, if considered independently, in accord with Smalldon and Secretary, Department of Social Services [2015] AATA 2 (5 January 2015).

    5.19.The Secretary therefore contends that, in accord with the AAT1 decision, no impairment rating can be assigned for this condition.

    Hip & Knee conditions

    …

    5.30.In accord with the AAT1 decision, the Secretary contends that the Applicant’s hip and knee conditions were fully diagnosed, but not fully treated and stabilised as at the qualification period.

    5.31.Referral in relation to possible joint replacement was indicated by Dr Buxton and Dr Esfahani prior to the qualification period.  The evidence indicates that specialist review in relation to joint replacement was not completed until the report of Mr Kimberly of 11 December 2017.  Mr Kimberly confirmed that he would be happy to proceed with surgery in respect of the Applicant’s hips and knees.  The Secretary therefore contends that the Applicant’s osteoarthritis was not fully treated and stabilised as at the qualification period.

    5.32.The Secretary therefore contends that no impairment rating can be assigned in respect of these conditions as at the qualification period.

    Shoulder pain

    …

    5.37.In accord with the AAT1 decision, the Secretary contends that this condition cannot be considered to be fully diagnosed, treated and stabilised within the qualification period.

    5.38.The Secretary contends that there is inadequate evidence to consider this condition fully diagnosed.  The Secretary further contends that, from the Applicant’s evidence, there is planned treatment for this condition, and therefore, the condition cannot be considered fully treated and stabilised within the qualification period.

    5.39.The condition is therefore unable to be assigned an impairment rating.

    Elbow pain

    …

    5.45.In accord with the AAT1 decision, the Secretary contends that there is insufficient evidence to consider this condition fully diagnosed, treated and stabilised, and in any event, that there is no evidence to suggest that this condition has a functional impact, on the basis of the Applicant’s evidence.

    Back and neck pain

    …

    5.54.The Secretary contends that the Applicant’s back and neck conditions were not fully diagnosed, treated and stabilised as at the qualification period.

    5.55.There is no evidence of specialist review of the back and neck conditions, such as from an orthopaedic surgeon or neurosurgeon.  Additionally, the Secretary notes the outstanding pain management referral for these conditions.

    5.56.The Secretary therefore contends that the Applicant’s back and neck conditions are unable to be assigned a rating under the Impairment Tables.

    Conclusion

    5.57.In conclusion, the Secretary contends that none of the Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period.  Accordingly, he cannot be assigned any impairment points under the Impairment Tables.

    5.58.In regards to the more recent medical evidence contained in Annexures A, B and D, the Secretary contends that this evidence is not contemporaneous to the qualification period, and therefore should be given limited weight.

    5.59.The Secretary therefore contends that the Applicant did not meet the qualification criteria under s 94(1)(b) of the Act.

    Hearing

1. The Respondent opened by relying on the Secretary’s Statement of Facts, Issues and Contentions, noting that the Qualification Period was 27 March 2017 to 26 June 2017 (R2).

2. The Respondent claimed that the Applicant had not completed a POS and therefore, needed 20 impairment points from a single table to qualify for DSP.

3. The Respondent stated at the hearing that the medical conditions of: widespread osteoarthritis was fully diagnosed but not fully treated and stabilised; shoulder pain was fully diagnosed but not fully treated and stabilised; elbow pain was not fully diagnosed, treated and stabilised; and back and neck pain was fully diagnosed but not fully treated and stabilised.

4. The Applicant stated at the hearing that he was unwell and suffering from a range of medical conditions that resulted from years of hard work as a bricklayer.

5. The Tribunal found the Applicant to be a truthful witness.

6. The Applicant came to understand during the hearing the threshold required in terms of evidence for the purpose of a successful claim.  The Tribunal and Ms Roberts took time to explain to the Applicant the evidence required to satisfy the requirements of the Impairment Tables for each of his medical conditions.

   CONSIDERATION

   Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments

7. On the basis of the evidence before the Tribunal, it is not in dispute that during the Qualification Period the Applicant suffered from the following medical conditions: hernia/groin pain; hip and knee conditions; shoulder pain; elbow pain; and back and neck pain.

8. There are medical reports which attest to the fact that the Applicant suffered from these medical conditions.

9. The Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.

   Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Impairment Tables

10. The Tribunal will now assess the medical conditions of the Applicant as detailed in the written and oral evidence presented.

    Hernia/Groin pain

11. The Applicant told the AAT1 at [26] (T2, 10):

    •Most of his adult life has been spent working as a bricklayer.

    •About four and a half years ago he had to give up working because of pain in his left groin.  This was due to a hernia and he had an operation to repair it.  However after the operation the pain was worse and he had to have a second operation.  At the second operation they found he also had a right sided hernia, so they repaired both.

    •Despite two operations he still has pain on the left side.  He has had it checked and there is nothing to be found.  In hospital he heard someone say the nerve had been cut.

    •He gets intermittent pain in the left groin.  At times it is severe and he can’t get out of bed or bend to tie his shoelaces.  At other times it is not too bad.  For treatment he takes painkillers, does stretching exercises and goes to the pool.

12. Dr Esfahani indicated in a medical certificate dated 25 May 2016 that surgery was planned to address this condition (T19, 149).  The Job Capacity Assessment Report (JCA) dated 8 July 2016 confirms that the Applicant was “scheduled to have bilateral inguinal hernia repair surgery on 10/8/2016” (T24, 157).

13. The ultrasound report of the left groin dated 18 September 2016 found that “[t]here is no demonstrated recurrent left inguinal, or femoral hernia.  No collection is demonstrated.  No explanation for the patient’s presentation is demonstrated.  There is no demonstrated hernia or collection” (T25, 164).

14. The JCA report of 3 July 2017 states that while the post-surgery pain is verified by the Applicant’s GP the condition is not fully diagnosed, treated and stabilised (FDTS) as investigation had indicated “the possible contribution of adjacent pathology noted in the hip and scrotal areas.  A referral for pain management advice/intervention has been made and was still to occur at the time of the job capacity assessment” (T39, 228).

15. Dr Kimberley’s report of 11 December 2017 notes that “[h]e reported having recent pain from hernia surgery in that region and I think probably the arthritis he has got is the reason for that pain” (T43, 245).

16. Having considered all the evidence before the Tribunal for this medical condition the Tribunal finds it was not FDTS as there was continued uncertainty by medical specialists as to the cause of the pain emanating from that part of the Applicant’s anatomy.

    Widespread osteoarthritis lower back, neck, hips, knees, hands and right ankle

17. The Applicant told the AAT1 at [30] (T2, 11):

    •He has a lot of arthritis affecting his lower back, neck, hips, knees, hands and right ankle. These problems affect his mobility. On some days he can hardly walk, on others he can manage about 100 metres, drive to the shops, and shop with the aid of a trolley for support.

    •Like most bricklayers he has had back pains on and off for years, but they got a lot worse after the hernia operations. His GP arranged a CT scan which showed some disc problems. There was talk of seeing a neurosurgeon but he has not proceeded. At present he tolerates the pain by using Lyrica tablets, usually one a day, occasionally more.

    •He has problems with his neck, which ‘goes out’ every now and then. The chiropractor clicks it back in. This happens every couple of weeks.

    •His right ankle gives a lot of pain. He fractured it five times before the age of 25 years. The orthopaedic specialist said not much could be done.

    •He takes a variety of pain killers for his various problems. These include Lyrica, Palexia and Panadeine Forte. He also takes the anti-inflammatory Ibuprofen now and then, but is reluctant to take it on a regular basis because it damaged his brother’s stomach lining.

    •He has seen the orthopaedic surgeon Dr Kimberley about these problems.  Dr Kimberley says he can help with surgery to replace the hips and also to fix the damaged knees. It is just a matter of Mr Woolterton saying when he wants it done.

    •Mr Woolterton thinks that, at 61, he is too young for that and prefers to get by on his current pain killers.

18. The Tribunal notes the medical certificate from Dr Esfahani dated 11 August 2015 for the condition of arthritis with symptoms of joint pain, restricted movements in ankles, left shoulder and back (T9, 132).  Treatment planned for this condition included the need for referral to a Rheumatologist.

19. The medical certificate from Dr Esfahani dated 19 November 2015 stated that this condition required referral to a specialist for further investigation (T12, 136).  Radiological reports describe areas in the cervical and lumbar spine with signs of root compression, degenerative disc disease and facet joint arthropathy (T13, 137).

20. The medical certificate of 20 February 2016 relating to osteoarthritis of the lumbar spine, hips and shoulder states that planned treatment for this is surgical joint replacement (T15, 140).

21. The JCA report of 29 March 2016 states that this condition is fully diagnosed but requires surgery as part of a treatment regime and therefore is not fully treated and stabilised (T16, 142).

22. The medical certificate from Dr Esfahani dated 25 May 2016 diagnoses the Applicant’s conditions as advanced osteoarthritis of lumbar back/hips and states that treatment includes referral to a physiotherapist (T19, 149).

23. The JCA report of 8 July 2016 outlines no evidence of surgery or physiotherapy undertaken (T24, 155).

24. The patient report of Dr Esfahani dated 24 November 2016 notes that for these medical conditions the Applicant was referred to an orthopaedic surgeon and a pain specialist (T28, 167).

25. The JCA report of 6 December 2016 confirms the report of 24 November 2016 (T31, 176).

26. The Tribunal notes that three physiotherapy treatment sessions had been conducted by a physiotherapist before 6 February 2017.  The treatment focused on the Applicant’s bilateral tennis elbow pain.  The physiotherapist does indicate that there are limited outcomes expected in terms of the Applicant’s recovery (T32, 183).

27. The Tribunal notes the medical certificate (T36, 190):

    09/03/2017

    To Whom It May Concern

    Michael Woolterton has multiple medical conditions namely left rotator cuff syndrome, bilateral medial and lateral epicondylitis with tendon ruptures, osteoarthritis of lumbar spine with resultant spinal stenosis, severe left hip osteoarthritis, Bilateral meniscal tear in his knees, bilateral plantar fasciitis of feet.  The cumulative pain and disability from the above-mentioned diseases have rendered him impaired to do his ADLs and any type of employment.

    The conditions have been diagnosed by ample radiological investigations and have been treated by physical therapy and analgesics.  Some are not amenable to surgical treatment and continue to be a source of pain for the rest of his life.

    In terms of pain control, the conditions have been stabilised, though the underlying causes of the pain remain.  I believe they are not going to significantly improve within the next 2 years to say the least.  Therefore, I support his disability pension application and strongly advise its provision to the patient.

    Dr Arash Esfahani M.D

28. The prognosis relating to the Applicant’s osteoarthritis in the JCA report of 3 July 2017 indicates referral for surgery is planned, therefore this condition cannot be considered to be fully treated and stabilised (T39, 224).

29. The report of Dr Kimberley dated 11 December 2017 outlines that the Applicant is the subject of ongoing treatment as conditions deteriorate for his hip and knees (T43, 245).

30. Having considered all the evidence before it there is no specialist evidence to indicate the impact of this condition during the Qualification Period on the Applicant’s functional capacity.

31. There is clear evidence to indicate that the Applicant has widespread osteoarthritis, however what is unclear is the extent of treatments including both surgery and physiotherapy that are required and the outcomes they will produce. It appears the Applicant does not favour intervention in the form of surgery. However, to treat and stabilise some of his conditions, for example the conditions of his lower back, hip and knees, this course of treatment has been recommended.

32. The Tribunal notes that the Applicant could barely stand in the Tribunal hearing without assistance.

33. The Tribunal therefore finds the medical conditions of widespread osteoarthritis were fully diagnosed, but not fully treated and stabilised during the Qualification Period.

    Shoulder pain

34. The Applicant told the AAT1 at [34] (T2, 12):

    •He has had shoulder pains for a few years.  The chiropractor thought x-rays may be needed.

    •The shoulder pain is treated with his current regime of pain killers plus some physiotherapy, exercises and visits to a swimming pool once or twice a week.

    •He has never had injections to his shoulders but his GP has said that is the next thing to think about.

35. The ultrasound report of 15 August 2015 states that “[t]he infraspinatus tendon demonstrates calcium hydroxyapatite deposition” (T10, 133).

36. The Tribunal notes medical reports which incorporate this condition as part of the medical condition of widespread osteoarthritis.

37. The JCA report of 8 July 2016 describes the shoulder and upper arm condition as temporary and the Applicant reporting receiving no treatment for this condition (T24, 158).

38. The Tribunal notes the Applicant receiving physiotherapy in a report of February 2017 (T32, 183).

39. The JCA report of 3 July 2017 indicates that the symptoms for the rotator cuff condition are intermittent and depend upon the amount of activity undertaken.  There is no evidence to indicate the severity of this condition or the required treatment regime necessary to improve outcomes. The only functional impairments that appear to be alluded to are heavy lifting and lifting arms (T39, 228).

40. The Tribunal finds this condition was fully diagnosed but not fully treated and stabilised during the Qualification Period. It is stated in the JCA report of 3 July 2017 that there is no evidence of intervention or treatment and there is “potential room for improvement if treated” (T39, 228).

    Elbow pain

41. The Applicant told the AAT1 at [37] (T2, 12):

    •He had some problems with elbow pains but they have mainly gone since Dr Kimberley did a carpal tunnel operation.

42. The Tribunal notes ultrasound reports of the right and left elbow (T20, 150; T23, 153).

43. The Applicant was referred to an orthopaedic surgeon in a patient report of Dr Esfahani dated 24 November 2016 (T28, 167).

44. The Applicant attended physiotherapy as outlined in the JCA report dated 3 July 2017 (T32, 183).

45. The JCA report of 3 July 2017 states that this condition was fully diagnosed, however was not fully treated and stabilised and was to be the subject of specialist advice and intervention (T39, 229).

46. The report of Dr Kimberley dated 11 December 2017 states: “I have recently done a carpal tunnel release which appears to have made a reasonable enough difference for the time being” (T43, 245).

47. The Tribunal finds that during the Qualification Period this condition was not fully treated and stabilised.

48. The Tribunal determines that there are a number of treatment options still available for the Applicant’s medical conditions that have not been pursued. Section 6(7) of the Determination states that:

    (7)For the purposes of subsection 6(6), reasonable treatment is treatment that:

    is available at a location reasonably accessible to the person; and is available at a location reasonably accessible to the person; and

    (c)is at a reasonable cost; and

    (d)can reliably be expected to result in a substantial improvement in functional capacity; and

    (e)is regularly undertaken or performed; and

    (f)has a high success rate; and

    (g)carries a low risk to the person.

49. With regard to the Applicant’s widespread osteoarthritis the following treatments are available – hip replacement, knee surgery and referral to a neurosurgeon for nerve root compression. The Tribunal determines that these are all reasonable treatment options which require further investigation and potential implementation.

50. The Tribunal finds the Applicant must have his medical conditions treated in order for these conditions to be fully stabilised, so that a proper and transparent assessment can be made as to any functional impairment.

    Whether the Applicant has a continuing inability to work

51. The Tribunal finds that the Applicant has a total of zero impairment points under the Impairment Tables and therefore fails to satisfy s 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act.

52. For the sake of completeness however, should the Tribunal have found that the Applicant satisfies s 94(1)(b) of the Act, the Applicant would nevertheless fail to satisfy s 94(1)(c) of the Act. Pursuant to s 94(3B) of the Act, the Applicant did not have a severe impairment and pursuant to s 94(3C) of the Act, the Applicant did not actively participate in a POS.

53. The Applicant lodged his application for DSP on 27 March 2017. To have actively participated in a POS, this must have occurred for 18 months in the 36 months prior to the date of the claim. There is no evidence before the Tribunal to indicate that this occurred.

54. On this basis, it is unlikely that this application would have succeeded regardless of whether 20 impairment points were assigned. 

    DECISION

55. For the reasons given above, the Applicant does not qualify for DSP. The decision of the AAT1 is affirmed.

I certify that the preceding 86 (eighty -six) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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

Associate

Dated: 15 January 2019

Date of hearing:	10 December 2018
Representative for the Applicant:	Mr Borzikovski
Representative for the Respondent:	Ms S Roberts
Solicitors for the Respondent:	Mills Oakley