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

Yousif and Secretary, Department of Social Services (Social services second review) [2019] AATA 2962 (28 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6666
Re:Daniel Yousif
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:28 August 2019
Place:Sydney

The Reviewable Decision is affirmed.
...........................[sgd].............................................
Senior Member Linda Kirk
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether applicant qualified for DSP during qualification period – whether condition fully diagnosed, treated, stabilised – whether impairment attracts 20 points or more under the Impairment Tables - decision affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Linda Kirk
28 August 2019

Mr Daniel Yousif (‘the Applicant’) suffers from a number of medical conditions which he claims make it difficult for him to work, or to look for work.
On 27 November 2017, the Applicant lodged a claim for the Disability Support Pension (‘DSP’).[1] On 4 December 2017, his application for DSP was rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’),[2] and on 21 June 2018, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that the Applicant did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).[3]
[1] T52, 213.
[2] T54, 244.
[3] T68, 278.
On 21 August 2018, the Applicant applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal for review (‘AAT1’). In a decision dated 18 October 2018, AAT1 affirmed the decision of the ARO refusing the Applicant’s claim for DSP as he did not satisfy section 94(1)(b) of the Act[4] (‘the Reviewable Decision’).
[4] T2, 3.
On 14 November 2018, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[5]
[5] T1, 1.
The matter was heard by the Tribunal in Sydney on 23 May 2018. The Applicant attended the hearing in person and was self-represented.
ISSUES AND LEGISLATION
Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’) in order to qualify for DSP, the Applicant must satisfy the requirements of section 94 of the Act as at the date he made his claim, or within 13 weeks of lodging the claim, that is between 27 November 2017 and 26 February 2018 (‘the qualification period’).
The issue before the Tribunal is whether the Applicant qualified for DSP at the time of the qualification period.
Section 94(1) of the Act provides that a person qualifies for the DSP 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) the person has a continuing inability to work as defined in section 94(2) of the Act.
The Respondent concedes and the Tribunal agrees that the Applicant suffered medical conditions that caused impairment during the qualification period, and therefore he satisfies section 94(1)(a) of the Act at the time of his claim for DSP.
It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, the Applicant had:
·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and
·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).
THE IMPAIRMENT TABLES
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).
The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
The Introduction to each relevant Table requires that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.
Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. Impairment is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. Section 6(4) of the Impairment Tables, provides that a condition is ‘permanent’ if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)has been fully treated; and
(c)has been fully stabilised; and
(d)is more likely than not to persist for more than two years.
In assessing whether a condition is ‘fully diagnosed’ by an appropriately qualified medical practitioner and whether it has been ‘fully treated’, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, section 6 (6) defines ‘fully stabilised’ to mean:
(a) 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.
The Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing.
‘Reasonable treatment’ is defined in section 6 (7) of the Impairment Tables as treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:
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 (emphasis added)
CONTINUING INABILITY TO WORK
The term ‘continuing inability to work’ is defined in s 94(2) of the Act as follows:
(1) A person has a continuing inability to work because of an impairment if the Respondent is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) - the person has actively participated in a program of support within the meaning of subsection (3C); 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.
PROGRAM OF SUPPORT
The term ‘program of support’ is defined in s 94(5) of the Act as a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Respondent considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
A person has 'actively participated' in POS if they have satisfied the requirements set out in the relevant legislative instrument POS Determination: s 94(3C) of the Act.
Part 2 of the POS Determination,[6] provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years ending the day before the day on which the claim for DSP is made (547 days being 18 months), or if:
[6] T3, 89.
(3) This subsection is satisfied in relation to a person and a program of support if:
(a) the duration of the program of support was less than 18 months; and
(b) the person completed the entire program during the relevant period.
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the end of the relevant period, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
EVIDENCE AND CONTENTIONS
The Applicant claims and the Respondent accepts that during the qualification period the Applicant suffered from the following conditions recognised under the following Tables:
·Table 1 – Heart disease, sleep apnoea and asthma;
·Table 4 – Spinal condition;
·Table 2 – Upper limb disorder;
·Table 3 – Lower limb condition;
·Table 5 – Mental health condition.
Table 1 - Heart disease, sleep apnoea and asthma conditions
The medical evidence indicates that these three conditions cause similar impairments, namely breathlessness and fatigue. The Respondent contends that as these conditions result in a common impairment to functions requiring exertion and stamina, subsection 10(5) of the Impairment Tables provides that a single impairment rating should be assigned under Table 1 that reflects the Applicant's overall level of impairment.[7]
[7] Respondent’s SFIC para 5.7.
The medical evidence in relation to the Applicant’s symptoms and level of function in relation to this condition as follows:[8]
·On 22 January 2016, Dr Syeda (consultant respiratory and sleep physician) reported that the Applicant has moderate obstructive sleep apnoea and 'suffers from fragmented sleep... complains of shortness of breath on moderate exertion and occasional chest tightness'.[9]
·On 3 April 2017, Dr Hua (general practitioner) reported that the Applicant suffered sleep apnoea and asthma causing ongoing dyspnoea and affecting his exertion and concentration.[10]
·On 18 March 2016, Dr Hua reported that the Applicant had ischaemic heart disease and was unable to do physical activity.[11]
·On 20 May 2016, Dr Hua reported that the Applicant suffered shortness of breath and chest pains due to heart bypass and ischaemic heart disease.[12]
·On 5 January 2018, Dr Hua reported that the Applicant had heart disease and, despite recent cardiac bypass, still had dyspnoea and tiredness worse on exertion.[13]
·On 5 January 2018, Dr Hua reported that the Applicant suffered asthma causing symptoms despite treatment.[14]
·On 28 February 2018, Dr Hua reported that obstructive sleep apnoea resulted in fatigue and poor concentration.[15]
·On 13 March 2019, Dr Hua reported that the Applicant experienced shortness of breath on exertion as a result of cardiac bypass and poor concentration as a result of asthma/sleep apnoea.[16]
[8] Respondent’s SFIC para 5.8.
[9] T23, 138.
[10] T45, 203.
[11] T25, 142
[12] T30, 156
[13] T58, 251
[14] T58, 251.
[15] T60, 255.
[16] Attachment 1.
The Applicant reported to the AAT1 that his cousin did all of the household cleaning, clothes washing and shopping. He was unable to make his bed or change his sheets. The AAT1 accepted based on the medical evidence that the Applicant experienced frequent symptoms when performing day to day activities and had difficulty performing household activities.[17]
[17] T2, 7.
The AAT1 did not accept that there was corroborating medical evidence that would support a finding that the Applicant usually experienced symptoms when performing light physical activities and due to such symptoms was unable to perform the activities detailed in the ‘severe’ descriptors in Table 1 namely:
·walk around a shopping centre or supermarket without assistance from another person;
·walk from the carpark into a supermarket or shopping centre without assistance from another person;
·use public transport without assistance from another person; or
·perform light day to day household activities.
At the hearing, the Applicant was questioned about his heart disease, sleep apnoea and asthma conditions. He told the Tribunal that he walked 700 metres from the car to the Tribunal to attend the hearing, although he had to stop two or three times on the way. He said that this distance was probably the furthest he has walked in more than two years. Eighteen months ago he could probably walk more than he can now, and he could also drive more.
He was asked about a conversation he had with a department officer in April 2018 during which he said he went swimming.[18] He told the Tribunal that he did not swim, but would walk in the pool for a period of approximately half an hour.
[18] T70, 286.
The Applicant was questioned about his overseas travel from 4 June to 18 July 2018. He explained that he travelled by himself to Russia for the World Cup. He flew from Sydney to Russia via Bangkok. He attended three games when Australia was competing and watched the others on the television. The games were played in 10 cities and he flew by plane between cities. He stayed in hotels at the various locations. He did not wash his clothes or clean the hotel room where he stayed as this was all done for him.
The Applicant was asked whether he performed day to day activities around the home. He said he does not now nor did he do so during the qualification period. He has a carer (his cousin) who does most of the work around his home including the household cleaning. His carer is not full-time, but comes when he calls her and is there about two to three hours a day and sometimes for longer. She does the laundry and sometimes helps him with bathing. She does not do the cooking but does help him with the groceries. She sometimes will drive him around although he can still drive himself.
The Respondent accepts that the Applicant has been diagnosed with ischaemic heart disease, sleep apnoea and asthma conditions and that these conditions were fully diagnosed, treated and stabilised at that time. It however contends that there is no evidence of a severe functional impact caused by these conditions as detailed in the descriptors in Table 1. Therefore, the conditions caused no more than a moderate functional impairment attracting 10 points under Table 1 of the Impairment Tables.[19]
[19] Respondent’s SFIC para 5.11
Table 4 – Spinal condition
The medical evidence in relation to the Applicant’s symptoms and level of function with respect to this condition is as follows:
·On 15 February 2011, a MRI of the lumbar spine revealed osteoarthritic changes from L3 to S1.[20]
[20] T4, 98.
·On 28 November 2013, an MRI of the cervical spine revealed multilevel degenerative facet and disc vertebral changes; no evidence of acute cervical pathology; mild right foraminal narrowing at C4/5; and mild left foraminal narrowing at C6/7.[21]
[21] T6,101.
·On 6 December 2013 and 6 January 2014, Dr Hua reported in a medical certificate that the Applicant was suffering from cervical radiculopathy.[22]
[22] T9, 106, T11,109.
·On 30 January 2014, Dr Hua reported that the Applicant suffered chronic neck, shoulder and back pain.[23]
[23] T12, 110.
·On 10 February 2014, 11 March 2014 and 22 May 2014, Dr Hua reported that the Applicant had a shoulder/neck injury; symptoms included ongoing pain in neck and shoulder, weakness/numbness in hands; treatment included surgical review.[24]
[24] T13, 121, T14, 122, T15, 123.
·On 30 June 2014, Mr Daher (physiotherapist) reported that physiotherapy could recommence for the Applicant's neck and thoracic spine to try to reduce ongoing upper spinal pain and bilateral hand paraesthesia.[25]
[25] T17, 125.
·On 3 February 2015, a MRI of the lumbar spine revealed osteoarthritic change was stable.[26]
[26] T18, 126.
·On 31 May 2015, the Applicant underwent an initial physiotherapy assessment for back and knee pain.[27] The report notes that the Applicant had 'capacity for some type of employment for 3 hours per day, 5 days per week, lifting up to 8 kgs, sitting as tolerated, standing up to 15 minutes, not repetitive pushing/pulling and unable to bend, twist or squat'. The report also notes that the Applicant stated he went to the gym and swam 'several times a week' but that 'no treatment has ever helped him' and that it was a "waste of money".[28]
[27] T19, 127.
[28] T19, 130.
·On 16 August 2017, a CT of the lumbosacral spine revealed mild degenerative disc and facet joint changes; moderate to severe foraminal narrowing at the L4/5.[29]
[29] T46, 204.
·On 18 August 2017, Dr Hua reported that cervical disease and lumbar radiculopathy caused the Applicant worsening neck and lower back pain; difficulty lifting; difficulty walking; paraesthesia down the legs.[30]
·On 27 November 2017, the Applicant underwent CT guided left LS perineural injection.[31]
·On 4 December 2017, the Applicant underwent CT guided injection of the right L5 nerve root.[32]
·On 4 January 2018, the Applicant underwent CT guided right C5 perineural injection.[33]
·On 5 January 2018, Dr Hua reported that the Applicant suffered chronic neck and lower back pain and had received cortisone injections and physiotherapy.[34]
·On 28 February 2018, Dr Hua reported that cervical disease and lumbar radiculopathy caused the Applicant worsening neck and lower back pain; difficulty lifting; difficulty walking; paraesthesia down the legs.[35]
·On 17 April 2018, Dr Rozario (consultant rheumatologist) reported that the Applicant was not improved after having bilateral L5 nerve root blocks; that he reported numbness in both hands for which nerve conduction studies were recommended; and was presenting with significant back pain.[36] Dr Rozario noted that the back pain was being investigated; she felt 'his symptoms are due to the significant cervical and lumbar spondylosis causing neurological symptoms'; that the Applicant was currently unable to work; and that the Applicant would require surgery if increasing doses of analgesia did not assist.
·On 26 April 2018, nerve conduction studies were undertaken.[37]
·On 20 September 2018, Dr Hua reported that the Applicant's conditions were permanent and could not be improved.[38]
·On 13 March 2019, Dr Hua reported that the Applicant experienced chronic pain.[39]
[30] T47, 206.
[31] T51, 212.
[32] T55, 246.
[33] T57, 250.
[34] T58, 251.
[35] T60, 255.
[36] T61, 256.
[37] T62, 257.
[38] T69, 283.
[39] Attachment 1.

At the hearing, the Applicant was asked what treatment he had received for his spinal condition before he made his DSP claim. He said that he had had cortisone injections and physiotherapy and had done weights. When questioned, he agreed that the first injection was done at the date of his DSP claim, namely 27 November 2017.[40]
[40] T51, 212.
The Applicant was asked about his consultations with Dr Rozario and specifically her report that she was continuing to investigate treatment options for his spinal condition post the qualification period in April 2018. He said that there is no guarantee his condition would improve with an operation.
He was further questioned about his ability to turn his head when driving and to bend down. He said he cannot turn his head all the way and that he needs assistance to put on shoes and socks.
While the Respondent accepts that the Applicant had been diagnosed with disc generation and cervical radiculopathy by the date of claim, it contends that these conditions were not fully treated and stabilised at that time given that the Applicant was yet to have surgical review, nerve conduction studies and other investigations recommended by Dr Rozario.[41]
[41] Respondent’s SFIC para 5.34.
In the alternative, the Respondent contends that if the Tribunal were to find that the Applicant's spinal conditions were fully diagnosed, fully treated and fully stabilised as at the qualification period, the contemporaneous medical evidence supports a finding that this condition resulted in no more than a mild impairment rating of five points under Table 4.[42]
[42] Respondent’s SFIC para 5.36.
Table 2 – Upper limb disorder
The medical evidence in relation to the Applicant’s symptoms and level of function with respect to this condition is as follows:
·On 28 November 2013, a MRI of the left shoulder revealed an extensive medially retracted full thickness tear and significant tendinopathy.[43]
[43] T7, 104.
·On 2 December 2013, Dr Dave (Orthopaedic surgeon) identified a left shoulder rotator cuff tear and recommended an arthroscopy be undertaken.[44]
·On 6 December 2013, Dr Sanki (General Surgeon) reported that the Applicant had moderate restrictions in movements of the left shoulder in abduction and flexion and internal/external rotations; experienced numbness in his hands particularly in the morning; he suspected that the Applicant had bilateral carpal tunnel syndrome; and recommended physiotherapy and nerve conduction studies.[45]
·On 30 January 2014, Dr Hua reported that the Applicant suffered chronic neck, shoulder and back pain.[46]
·On 10 February 2014, 11 March 2014 and 22 May 2014, Dr Hua reported that the Applicant had a shoulder/neck injury; symptoms included ongoing pain in neck and shoulder, weakness/numbness in hands; treatment included surgical review.[47]
·On 28 May 2014, Professor Murrell (Shoulder surgeon) reported that the Applicant had left shoulder surgery and was regaining shoulder motion.[48]
·On 30 June 2014, Mr Daher (Physiotherapist) reported that physiotherapy could recommence for the Applicant's left shoulder, neck and thoracic spine to try to reduce ongoing upper spinal pain and bilateral hand paraesthesia.[49]
·On 28 September 2017, x-rays of bilateral elbows revealed mild right elbow osteoarthritis and mild bony spurring.[50]
·On 5 January 2018, Dr Hua listed bilateral carpal tunnel syndrome as a current condition.[51]
·On 17 April 2018, Dr Rozario (Consultant rheumatologist) reported that the Applicant reported numbness in both hands for which nerve conduction studies were recommended.[52] Dr Rozario noted that the back pain was being investigated; she felt 'his symptoms are due to the significant cervical and lumbar spondylosis causing neurological symptoms', and the Applicant may require surgery.
·On 20 September 2018, Dr Hua reported that the Applicant's conditions, including shoulder osteoarthritis, were permanent and could not be improved.[53]
[44] T8, 105.
[45] T10, 107.
[46] T12, 110.
[47] T13, 121, T14, 122, T15, 123.
[48] T16, 124.
[49] T17, 125.
[50] T48, 207.
[51] T58, 251.
[52] T61, 256.
[53] T69, 283.
The Respondent accepts, on the basis of radiological evidence, that the Applicant has been diagnosed with osteoarthritis of the elbow, a left rotator cuff tear and, bilateral carpal tunnel syndrome.[54] While it accepts that the left shoulder condition was fully diagnosed, fully treated and fully stabilised at the date of claim, it contends there is no medical evidence to corroborate that the left shoulder condition itself caused any degree of functional impairment at that time.[55]
[54] Respondent’s SFIC para 5.48.
[55] Respondent’s SFIC para 5.49.
The Respondent further contends that there is no evidence that any treatment has been undertaken for the mild elbow osteoarthritis and therefore this condition, while diagnosed at the date of claim, was not fully treated and stabilised at that time. In relation to the Applicant’s bilateral carpel tunnel syndrome, the Respondent accepts that while fully diagnosed, it was not fully treated and stabilised at the date of claim.[56]
[56] Respondent’s SFIC para 5.50.
If the upper limb conditions were fully diagnosed, fully treated and fully stabilised at the qualification period, the Respondent contends that the appropriate impairment rating for the resulting functional impact would be zero points under Table 2.[57]
[57] Respondent’s SFIC para 5.52.
Table 3 – Lower limb condition
The medical evidence in relation to the Applicant’s symptoms and level of function with respect to this condition is as follows:
·On 31 May 2015, the Applicant underwent an initial physiotherapy assessment for back and knee pain;[58]
[58] T19, 127.
·On 9 June 2015, an MRI scan of the left knee revealed moderate degenerative change;[59]
[59] T20, 132.
·On 4 April 2016, an x-ray of the left knee revealed loss of height in the patellofemoral, medial and lateral compartments;[60]
[60] T26, 143.
·On 6 October 2016, an x-ray of the left knee revealed moderate osteoarthritis;[61]
·On 13 October 2016, an MRI of the left knee revealed osteoarthritis; tendinopathy; strain; oedema;[62]
·On 17 October 2016, a MRI of the right knee revealed osteoarthritis; marrow oedema; degenerative change; tendinopathy;[63]
·On 11 January 2017, an ultrasound guided injection of the right knee was completed;[64]
·On 12 January 2017, an ultrasound guided injection of the left knee was completed;[65]
·On 3 April 2017, Dr Hua reported that the Applicant had severe osteoarthritis in the knees for which he had seen an orthopaedic surgeon and cortisone injections had not resulted in much relief;[66]
·In the Applicant's DSP claim, lodged on 27 November 2017, he indicated that he expected to have knee replacement surgery for severe knee pain and osteoarthritis;[67]
·On 5 January 2018, Dr Hua reported that the Applicant had severe knee osteoarthritis for which he had received cortisone injections and physiotherapy;[68]
·On 20 September 2018, Dr Hua reported that the Applicant's conditions were permanent and could not be improved;[69]
·On 13 March 2019, Dr Hua reported that the Applicant suffered severe knee osteoarthritis and that planned treatment included a total knee replacement.[70]
[61] T38, 193.
[62] T39, 194.
[63] T40, 196.
[64] T41, 198.
[65] T42, 199.
[66] T45, 203.
[67] T52, 237.
[68] T58, 251.
[69] T69, 283.
[70] Attachment 1.
At the hearing, the Applicant was asked when the planned total knee replacement was scheduled to take place. He said that he saw an orthopedic surgeon in 2018. He is not yet on the waiting list for the surgery as he has been told he needs to wait until he is 70.
The Respondent accepts, based on the radiological evidence, that the Applicant has been diagnosed with knee osteoarthritis. It however submits that this condition was not fully treated and fully stabilised at the date of the claim.[71]
[71] Respondent’s SFIC para 5.66-5.67.
Table 5 – Mental health condition
The medical evidence in relation to the Applicant’s symptoms and level of function with respect to this condition is as follows:
·On 18 June 2012, Dr Benjamin (Consultant psychiatrist) diagnosed the Applicant with alcohol dependence disorder and pathological gambling disorder;[72]
·On 1 June 2016, the Applicant was referred to Ms Dilek (Registered psychologist).[73] In a mental health treatment plan of the same date, Dr Hua requested a diagnostic assessment of depression;[74]
·On 2 April 2017, Ms Chau (Registered psychologist) reported that the Applicant had longstanding depression and symptoms including depressed mood; irritability; interrupted sleep; social withdrawal; sense of hopelessness; loss of interest and motivation;[75]
·On 3 April 2017, Dr Hua reported that the Applicant was receiving psychotherapy for major depression;[76]
·On 5 January 2018, Dr Hua reported that the Applicant suffered depression and had been referred to a clinical psychologist;[77]
·On 7 February 2018, Dr Nge (Clinical psychologist) reported that he assessed the Applicant on 10 January 2018; that the Applicant had attended four sessions to date; and diagnosed adjustment disorder and reactive depression;[78]
·On 28 February 2018, Dr Hua reported that the depression caused the Applicant low mood and motivation;[79]
·On 10 May 2018, Ms Fernandez (Occupational therapist) reported that she had been treating the Applicant since 2017 and diagnosed the Applicant with PTSD, moderate depressive disorder and chronic pain;[80]
·On 20 September 2018, Dr Hua reported that the Applicant's conditions were permanent and could not be improved;[81]
·On 13 March 2019, Dr Hua reported that the Applicant had experienced anxiety and major depression since 2011, that the Applicant was anxious all of the time, suffered poor concentration, that treatment included psychotherapy and antidepressants, and that planned treatment included 'psychiatric'.[82]
[72] T5, 99.
[73] T32, 159.
[74] T32, 161.
[75] T44, 202.
[76] T45, 203.
[77] T58, 251.
[78] T59, 254.
[79] T60, 255.
[80] T65, 263.
[81] T69, 283.
[82] Attachment 1.
The Respondent accepts, based on the diagnosis made on 7 February 2018 by Dr Nge, that as at the qualification period the Applicant had been diagnosed with adjustment disorder and reactive depression. The Respondent however contends that the Applicant's mental health condition was not fully treated nor stabilised at this time.[83]
[83] Respondent’s SFIC para 5.78.
In the event that the Tribunal were to find the Applicant's mental health condition was fully diagnosed, treated and stabilised as at the qualification period, the Respondent contends that the contemporaneous medical evidence does not support a finding that this condition caused a severe impairment rating satisfying most of the descriptors for 20 points under Table 5. The appropriate impairment rating for these conditions would therefore be no more than five points under Table 5.[84]
[84] Respondent’s SFIC para 5.82.
There is evidence that the Applicant suffers from obesity,[85] hypertension and hypercholesterolemia.[86] The Respondent contends that there is insufficient evidence to determine whether these conditions were fully diagnosed, treated and stabilized, or to assess the functional impact of these conditions under the Impairment Tables.[87]
[85] T10, 107
[86] T5, 99.
[87] Respondent’s SFIC para 5.3.
Program of support
The Applicant had actively participated in a POS for 142 days in the 36 months ending immediately before the day on which he lodged his claim for DSP.[88] The Respondent contends that the Applicant:
·had not actively participated for at least 18 months (547 days) in a POS;
·did not complete a POS that was less than 18 months, with the entire POS completed within the 3 years prior to his claim for DSP;
·did not have a POS terminated prior to claim because he, solely due to his impairments, was unable to improve his capacity to prepare for, find or maintain work through continued participation; and
·has presented no evidence that supports a finding that he was prevented, solely due to his impairments, from improving his capacity to prepare for, find or maintain work through continued participation in a POS.[89]
[88] Respondent’s SFIC para 6.10
[89] Respondent’s SFIC para 6.10.
CONSIDERATION AND REASONS
The issue for determination by the Tribunal is whether the Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating should be assigned for functional impairment in accordance with the Impairment Tables – s 94(1)(b).
Table 1 – Heart disease, sleep apnoea and asthma conditions.
On the basis of the medical evidence detailed in paragraph 27 above, the Tribunal accepts that the Applicant has been diagnosed with ischaemic heart disease, sleep apnoea and asthma conditions, and that these conditions were fully diagnosed, treated and stabilised at the qualification period.
The evidence before the Tribunal does not support a finding of a severe functional impact caused by these conditions as detailed in the ‘severe’ descriptors detailed in Table 1 – Functions Requiring Physical Exertion and Stamina. In particular, there is no evidence that the Applicant requires the assistance of another person in order to undertake the activities detailed in the first three descriptors, namely, ‘walk around a shopping centre or supermarket without assistance from another person’; ‘walk from the carpark into a supermarket or shopping centre without assistance from another person’; ‘use public transport without assistance from another person’.
The Applicant’s evidence at the hearing was that he was able to walk a distance of some 700 metres from the car to the Tribunal in order to attend the hearing. This evidence supports a finding that the Applicant has the capacity to walk around a shopping centre or supermarket and walk from the carpark to the same without assistance from another person.
In relation to the fourth descriptor, ‘perform light day to day household activities (e.g. folding and putting away laundry or light gardening)’ the Tribunal finds that the evidence demonstrates that, despite claiming he does not undertake household chores, the Applicant has the capacity to undertake light activities around the home. He was able to travel overseas alone for an extended period last year without assistance from another person to perform daily tasks including his personal care. The Tribunal is satisfied that the Applicant is capable of performing light physical activity without severe functional impact caused by these conditions.
The Tribunal agrees with the findings of AAT1 in relation to the functional impact of these conditions on the Applicant, and finds that an impairment rating of ten points under Table 1 should be assigned to this condition as the functional impairment resulting from this condition is moderate.
Table 4 – Spinal condition
On the basis of the medical evidence detailed in paragraph 35 above, the Tribunal accepts that the Applicant had been diagnosed with disc generation and cervical radiculopathy by the date of claim, however it is not satisfied that these conditions were fully treated and stabilised at the qualification period.
The evidence before the Tribunal is that prior to lodging his claim for DSP, the Applicant’s treatment for his spinal condition was limited to physiotherapy. Whereas in 2014, treatment for this condition included ‘surgical review’, the medical evidence indicates that this was not pursued by the Applicant. Further, in April 2018 (post the qualification period), Dr Rozario noted that the Applicant was experiencing ‘significant back pain’ which was still ‘being investigated’. She recommended nerve conduction studies of the upper and lower limbs and noted that the Applicant would require surgery if increasing doses of analgesia did not relieve his pain.[90]
[90] T61, 256.
The Tribunal finds that there is no evidence that, as at the qualification period, the further investigations and potential surgical review and intervention were unlikely to significantly improve the Applicant’s functioning.
Accordingly, on the basis of the evidence before it, the Tribunal is not satisfied that the Applicant’s spinal condition was permanent, as it was not fully treated and stabilised during the qualification period. Accordingly, no impairment rating can be assigned to this condition.
Table 2 – Upper limb disorder
On the basis of the medical evidence detailed in paragraph 41 above, the Tribunal accepts that the Applicant has been diagnosed with osteoarthritis of the elbow, a left rotator cuff tear, and bilateral carpal tunnel syndrome.[91]
[91] T58, 251.
While the evidence supports a finding that the left shoulder condition was fully diagnosed, fully treated and fully stabilised at the date of claim, there is no medical evidence to corroborate that the left shoulder condition itself caused any degree of functional impairment during the qualification period. Accordingly, no impairment rating can be assigned to this condition.
In relation to the Applicant’s mild elbow osteoarthritis that was first diagnosed from X-rays in September 2017, there is no evidence that any treatment had been undertaken for this condition at the time of the claim. The Tribunal therefore finds that this condition was not fully treated and stabilised at that time, and no impairment rating can be assigned to the condition.
In relation to the Applicant’s bilateral carpel tunnel syndrome, the Tribunal finds on the basis of the medical evidence that while fully diagnosed, it was not fully treated and stabilised at the date of claim. Nerve conduction studies were recommended in 2013, and there is no evidence that the Applicant has had release surgery. Furthermore, nerve conduction studies were recommended by Dr Rozario which did not occur. Accordingly, this condition was not fully treated and stabilised at the date of the claim, and no impairment rating can be assigned to the condition.
Table 3 – Lower limb condition
On the basis of the medical evidence detailed in paragraph 45 above, the Tribunal accepts that the Applicant has been diagnosed with knee osteoarthritis. However, it is not satisfied that this condition was fully treated and stabilised at the qualification period.
The evidence before the Tribunal includes the Applicant's self-report that he expects to have knee replacement surgery, and he has seen a surgeon but has not yet joined the waiting list. This is supported by Dr Hua's report of 13 March 2019 that records that total knee replacement surgery is planned.
The Tribunal finds that there is no evidence that, as at the qualification period, the planned surgery was not unlikely to significantly improve the Applicant’s functioning. Accordingly, on the basis of the evidence before it, the Tribunal is not satisfied that the Applicant’s knee osteoarthritis was permanent, as it was not fully treated and stabilised during the qualification period. Accordingly, no impairment rating can be assigned to this condition.
Table 5 – Mental health condition
Based on the diagnosis made on 7 February 2018 by Dr Nge, the Tribunal finds that as at the qualification period the Applicant had been diagnosed with adjustment disorder and reactive depression. However, it is not satisfied that the Applicant's mental health condition was fully treated or stabilised as at the qualification period.
The evidence before the Tribunal is that the Applicant commenced counselling in late 2016 and 2017. However, the number of sessions of treatment is not specified, and there is no evidence of any pharmacological treatment.[92] Treatment with anti-depressants in conjunction with a sustained period of psychological counselling constitute reasonable treatment as defined in subsection 6(7) of the Impairment Tables, which could be expected to result in substantial improvement in the Applicant's functioning.
[92] Respondent’s SFIC para 5.79

The Tribunal is not satisfied that as at the qualification period the Applicant’s mental health condition was permanent as it was not fully treated and stabilised. Accordingly, no impairment rating can be assigned to this condition.
Other conditions
On the basis of the evidence before it, the Tribunal is unable to determine whether the Applicant’s other claimed conditions, obesity, hypertension and hypercholesterolemia were fully diagnosed, treated and stabilised at the qualification period, or to assess the functional impact of these conditions under the Impairment Tables.
CONCLUSION
During the qualification period, the Applicant suffered from impairments attracting a total rating of 10 points under the Impairment Tables. As this is less than the required total of 20 points necessary to establish eligibility for DSP, he does not satisfy s 94(1)(b) of the Act. Accordingly, the Applicant was not qualified for DSP during the qualification period.
As the Applicant’s conditions are not considered permanent under the Act, it is not necessary for the Tribunal to consider whether he had a continuing inability to work during the qualification period.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 76 (seventy -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...........................[sgd].............................................
Associate
Dated: 28 August 2019

Date(s) of hearing: 23 May 2019

Applicant: In person

Solicitors for the Respondent: Ms G Heggen and Ms S Pringle, Department of Human Services

[2019] AATA 2962

28 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	23 May 2019
Applicant:	In person
Solicitors for the Respondent:	Ms G Heggen and Ms S Pringle, Department of Human Services