Kilner and Secretary, Department of Social Services (Social services second review) [2017] AATA 22 (13 January 2017)

Last Updated: 17 January 2017

Kilner and Secretary, Department of Social Services (Social services second review) [2017] AATA 22 (13 January 2017)

Division: GENERAL DIVISION

File Number: 2016/1388

Re: Roy Kilner

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Senior Member T. Tavoularis

Date: 13 January 2017

Place: Brisbane

The decision under review is affirmed.

.........................[sgd]..................................

Senior Member T. Tavoularis

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – Spinal condition – Adjustment disorder – Otitis / Vertigo - other conditions - Applicant only has 10 impairment points –
decision under review is affirmed

Legislation

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth)

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

Cases

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

Secondary Materials

The Guide to Social Security Law

REASONS FOR DECISION

Senior Member T. Tavoularis


13 January 2017

INTRODUCTION

1. On 10 February 2015, Mr Roy James Kilner (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as “chronic lower-back pain, disc degeneration, depression”.^[1]
2. To support his claim for DSP the Applicant provided a Medical Report by Dr Carl Currie. In that report Dr Currie listed the Applicant’s conditions as: ‘chronic pain syndrome with ongoing low back pain and multilevel disc degeneration, as well as chronic depression, chronic recurrent otitis, socially isolated and loneliness and poor quality of life, fatigue and lethargy, varicose veins in leg, tendonitis in right hand, and fungal skin infection.’^[2]
3. The issue before the Tribunal is whether the Applicant qualified for DSP at the date of his claim, 10 February 2015, or within 13 weeks thereafter, that being up until 12 May 2015.

HISTORY OF THE MATTER

4. On 10 February 2015, the Applicant lodged a claim for DSP with Centrelink in writing,^[3] including a pro-forma medical report by Dr Carl Currie dated 4 February 2015.
5. On 17 March 2015, the Applicant attended an assessment with a Job Capacity Assessor (“JCA”) who subsequently produced a report dated 18 March 2015.^[4] The JCA assessed the Applicant’s conditions as follows:
   • (a) Spinal Disorder - Other
     • Verified by medical evidence, fully diagnosed (but not fully treated or stabilised).
     • Diagnosis: Chronic Pain Syndrome with ongoing low back pain and multilevel disc degeneration.
     • With further treatment such as hydrotherapy/pain management and back programme/ education/ specialist referral if required the Applicant’s symptoms and functional ability may improve.
     • Therefore for the purpose of social security this condition is considered not fully treated or stabilised and no impairment points were attracted to it.
   • (b) Depression
     • Verified by medical evidence, (not fully diagnosed, treated or stabilised).
     • “... to date has not required to be connected with either a psychiatrist or clinical psychologist.” Therefore for the purpose of social security this condition is considered not fully diagnosed, treated and stabilised.
     • The Applicant confirmed this condition caused limited impact on his ability to function. No impairment points were allocated to this condition.
   • (c) Skin Disorder – Other
     • Verified by medical evidence; fully diagnosed; fully treated; fully stabilised.
     • Diagnosis: Fungal skin infection
     • The report from the General Practitioner, Dr Carl Currie, indicates that this condition is generally well managed and causes limited impact on ability to function. The Applicant confirmed this condition caused limited impact on his ability to function.
     • Applicant has undertaken all reasonable treatment, therefore the condition is considered fully diagnosed, treated and stabilised.
     • The recommended impairment rating, under Table 14 – Functions of the skin, was nil points.
   • (d) Vertigo
     • Verified by medical evidence; fully diagnosed; fully treated; fully stabilised.
     • Diagnosis: Chronic recurrent Otitis
     • The report from the General Practitioner, Dr Carl Currie, indicates that this condition is generally well managed and causes limited impact on ability to function. The Applicant confirmed this condition caused limited impact on his ability to function.
     • Applicant has undertaken all reasonable treatment, therefore condition is considered fully diagnosed, treated and stabilised.
     • The recommended impairment rating, under Table 11 – Hearing and other Functions of the Ear, was nil points.
   • (e) Circulatory System – Other (eg Vasculitis)
     • Verified by medical evidence; fully diagnosed (but not fully treated or stabilised).
     • Diagnosis: Varicose Veins
     • The report from the General Practitioner, Dr Carl Currie, indicates that this condition is generally well managed and causes limited impact on ability to function.
     • The Applicant reported he has not to date required any treatment for this condition therefore this condition is considered not fully treated or stabilised.
     • The Applicant confirmed this condition caused limited impact on his ability to function. No impairment points were allocated to this condition.

Total impairment rating recommended by JCA for all reported conditions = nil points.

Additionally, the Applicant’s Baseline Work Capacity was assessed by the JCA as 8-14 hours per week with a predicted capacity of 15 - 22 hours per week within 2 years with intervention. The JCA noted that based on the level of support required by the Applicant he would require specialist disability employment interventions.

6. On 20 March 2015, the Department wrote to the Applicant advising him that his application for DSP had been rejected on the basis he did not have a rating of 20 or more impairment points.^[5]
7. On 31 March 2015, the Applicant wrote to Centrelink requesting a review of that decision.^[6]
8. On 23 April 2015 an Authorized Review Officer (“ARO”) affirmed the decision under review.^[7] The ARO upon review of the JCA report and additional other relevant evidence provided to the Department, made the following findings of fact:

“Findings of Fact

After careful consideration of the evidence, I have made these key findings:

• You have the following permanent conditions: skin disorder and vertigo.
• Your conditions of depression, spinal disorder, circulatory system and shoulder and arm disorder are not accepted as being permanent as they have not been fully treated and stabilised.
• Your total impairment rating is nil points.
• 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”.^[8]

9. On 10 December 2015, the Applicant applied for review to the Social Services and Child Support Division of this Tribunal (“AAT1”).^[9]
10. In support of his application for review the Applicant produced additional medical reports. This included a medical certificate and referral for a mental health care plan from his new general practitioner, Dr Premila Balakrishnan;^[10] and, most relevantly a report from a clinical psychologist, Ms Anna Pickert, dated 3 February 2016.^[11]
11. On 29 February 2016, at first review, this Tribunal (“AAT1”) affirmed the decision under review but did not agree with the JCA or ARO as to assessment of impairment points. Instead, the AAT1 review assessed the Applicant as having a total impairment rating of 15 points, calculated as being 10 points for a Spinal condition under Table 4, and 5 points for Otitis/ Vertigo under Table 11.^[12]
12. On 16 March 2016, the Applicant filed an Application for Second Review of Decision with the General Division of the Administrative Appeals Tribunal (“this Tribunal”).^[13]
13. The Applicant provided updated reports respectively from his clinical psychologist dated 23 June 2016 and his general practitioner dated 24 June 2016.^[14]

LEGISLATIVE FRAMEWORK

14. Section 94 of the Social Security Act 1991 (Cth) (“the 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.
15. 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 February 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.^[15] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 10 February 2015 and 12 May 2015 (“the Relevant Period”).
16. It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

“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 subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances”.

[my underlining]

17. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.^[16] 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.^[17] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.^[18]
18. 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.^[19] 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 more likely than not, in light of available evidence, to persist for more than two years.^[20]
19. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts 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.^[21]
20. A condition is “fully stabilised” if:
    1. 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
    2. 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.^[22]
21. “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.^[23]
22. 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. A rating cannot be assigned in excess of the maximum rating specified in each Table.^[24]
23. In respect of 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.

ISSUES FOR THE TRIBUNAL

24. The issues for me to consider are:
    • (i) whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric condition(s) which was fully diagnosed, treated and stabilised;
    • (ii) whether the Applicant’s condition(s) warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;
    • (iii) whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
    • (iv) whether the Applicant has a continuing inability to work.

CONSIDERATION

Did the Applicant have a medical condition(s) that was permanent and attracted 20 points or more under the Impairment Tables?

25. The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy s 94(1)(b) or (c) of the Act.^[25]
26. I accept that the Applicant had an impairment(s) for the purpose of s 94(1)(a) of the Act. I propose to deal with the calculation of impairment points by reference to each of the Applicant’s various medical conditions.

Spinal Condition – Table 4 – Spinal Function

27. Dr Currie’s report describes the Applicant as having chronic pain syndrome with ongoing lower back pain and multi-level disc degeneration.
28. The JCA and ARO found that the spinal condition was fully diagnosed but was not fully treated and stabilised during the relevant period and on that basis the condition could not be assigned an impairment rating.
    • The JCA report dated 18 March 2015 confirmed that the Applicant’s treatment of this condition at the time was limited to ‘vitamins’.^[26] At the time of the claim the Applicant had not sought specialist opinion or engaged in any recent recognised treatment/therapies for the condition such as hydrotherapy, pain management or a spinal program. The Applicant also advised the JCA that his symptoms had improved since ceasing work in February 2015.
29. The Respondent contended that there is no evidence to conclude that with appropriate conservative treatment (such as that suggested by the JCA) the Applicant’s condition would not improve within two years.
30. The Respondent submitted that if the Tribunal did find the condition was fully diagnosed, treated and stabilised that a maximum of five points should be awarded under Table 4. This is based on the Applicant’s self-reporting to the JCA of pain from (i) ‘prolonged standing/sitting and walking for more than 30 minutes, and (ii) repetitive movements such as bending /twisting and turning.’^[27] This is corroborated by Dr Currie’s report dated 4 February 2015 that said the Applicant’s condition caused ‘poor endurance – can’t do lifting & heavy work, difficulty standing...’^[28]. The Respondent contends that the Applicant does not satisfy the descriptors for an impairment rating of 10 points or higher because he reported to the JCA he was able to ‘bend down and pick up light items off the floor and ... [that he had a] full range of movement in his neck enabling him to undertake overhead tasks’.^[29] Consequently descriptors (a), (b) and (c) of the 10 point rating are not met. Additionally, there is no evidence to suggest that the Applicant requires assistance from another person to get out of a chair as referred to in descriptor (d) of the 10 point rating.
31. The AAT1 found that the Applicant’s spinal condition was fully diagnosed, treated and stabilised and awarded an impairment rating of 10 points under Table 4.
    • The AAT1 noted Dr Currie’s comments that the Applicant had already had extensive rehabilitation and physiotherapy while he was living in Casino. This is consistent with the Applicant reporting he had physiotherapy through WorkCover. It was accepted on this basis that the condition was extensively treated while the Applicant was still working and that any need for further treatment had not been identified by his treating general practitioner. For this reason the condition was regarded as having been fully diagnosed, treated and stabilised at the time of the Applicant’s claim and likely to persist for at least two years.
    • The Applicant reported to the AAT1 that:^[30]
      • Walking is something he can do provided he can rest as required, and he can sometimes walk for more than 30 minutes, but bending and twisting still cause him grief and discomfort.
      • He said he has learnt to bend his knees rather than his back, can still tie up his shoe laces if necessary but he also uses slip-on shoes.
      • He said that prolonged sitting or standing cause him problems. He estimated his sitting tolerance at between 20 and 30 minutes at maximum.
      • He said he can pick up shoes off the floor but he does not do activities such as mowing the lawn because that would involve bending over to remove a catcher and associated tasks. He does not use a whipper snipper because it would aggravate his condition.
      • He said “at a pinch” he could probably hang sheets on a Hills Hoist, but would not attempt to hang something heavier such as blankets. For his or his grandchildren’s washing he uses a clothes airer.
      • He acknowledges that he could put coffee cups in the cupboard above the sink but identified them as light items.
    • The AAT1 found that the Applicant did not meet the criteria for 20 points but satisfied the criteria for an impairment rating of 10 points for the following reasons:
      • The Applicant reported that although he does not drive he is able to sit for a maximum of 30 minutes.
      • He is unable to sustain overhead activities. Whilst the Applicant could undertake some light overhead activities it was considered he would not be able to sustain them on a prolonged basis and certainly not if it involved heavy items.
32. Having regard to the totality of the evidence, I agree with the AAT1 review that this condition was fully diagnosed, treated and stabilised, on the basis that the Applicant had undergone extensive treatment and physiotherapy. This view is supported by the comments of his general practitioner, Dr Currie, who (1) could not identify any further treatment for the condition and (2) was of the view that the condition was likely to persist for at least two years.
33. Table 4 of the Impairment Tables is utilised when an Applicant has a condition that results in a functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck. The relevant descriptors for 5, 10 and 20 points are stated thus:

5 points: There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:

(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).

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

(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20 points: There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:

(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.

34. I am inclined to allocate 10 impairment points to this condition. I do so on the basis of the Applicant’s evidence to the effect that he could sit for up to 30 minutes before experiencing pain. Additionally, he was able to hang relatively light items, such as bed sheets, on the washing line but was unable to hang heavier items, such as blankets, above his head or to otherwise sustain similar overhead activities.
35. I further consider that he does not meet the 20 point descriptors because it could not be said that: (a) he could not perform “any” overhead activities; or (b) turn his head without moving his trunk; or (c) bend forward to pick up a light object from a desk or table, (he previously attested he could still tie his shoe laces if necessary), or (d) remain seated for only 10 minutes.

Adjustment Disorder – Table 5 – Mental Health Function

36. Dr Currie reported that the Applicant suffered from chronic depression, social isolation, loneliness and poor quality of life but listed these conditions as being generally well managed. The reports from the clinical psychologist, Anna Pickert, dated 3 February 2016 and 23 June 2016 diagnosed the Applicant with adjustment disorder with depression, anxiety and stress. I note that the reports of Ms Pickert say the Applicant first attended her practice on 13 May 2015 and that he attended four sessions with her in 2015.
37. Table 5 of the Impairment Tables is utilised when an Applicant has a permanent condition resulting in functional impairment due to a mental health condition. The introduction to Table 5 specifies that the diagnosis of a mental health condition ‘must be made by an appropriately qualified medical practitioner, this includes a psychiatrist, with evidence form a clinical psychologist if the diagnosis has not been made by a psychiatrist’.^[31]
38. According to the evidence before me the Applicant had not seen a psychiatrist or clinical psychologist prior to his first appointment with Ms Pickert. Therefore, the earliest a diagnosis could have been properly made was 13 May 2015, which is just outside the relevant period. The Applicant lodged his claim for DSP on 10 February 2015 and the relevant period relating to that claim ended on 12 May 2015.
39. Additionally, there is no evidence of any treatment undertaken by the Applicant prior to the expiry of the relevant period. The JCA Report dated 18 March 2015 was completed during the relevant period and recorded that the Applicant ‘is currently on nil medication for his condition and to date has not required to be connected with either a psychiatrist or clinical psychologist’.^[32]
40. I find that the Applicant’s mental health condition cannot be considered to have been fully diagnosed, treated and stabilised during the relevant period and an impairment rating cannot be assigned under Table 5. Accordingly, I cannot allocate an impairment rating to this condition.

Chronic Recurrent Otitis – Table 11 – Functions of the Ears

41. Dr Currie described the Applicant as having chronic recurrent otitis. The JCA noted that the Applicant said that he would have recurrent ear infections which were associated with having to wear earplugs at times at work.
42. The Respondent agrees with the findings of the JCA and accepts that the Applicant’s chronic recurrent otitis was fully diagnosed, treated and stabilised during the relevant period.^[33] Therefore it can be considered permanent and assigned an impairment rating.
43. Table 11 is utilised for conditions resulting in functional impairment involving hearing or other functions of the ear (eg balance). The relevant descriptors for nil or 5 points are stated thus:

0 Points: There is no functional impact on activities involving hearing (communication) function or other functions of the ear.
(1) The person:

(a) can hear a conversation at average volume in a room with an average level of background noise (e.g. other people talking quietly in the background); and
(b) does not have to turn the television volume up louder than others in the household to hear clearly; and
(c) the person does not need to use a hearing aid, cochlear implant or other assistive listening device.

5 points: There is mild functional impact on activities involving hearing (communication) function or other functions of the ear.
(1) The person:

(a) has some difficulty hearing a conversation at an average volume in a room with background noise (e.g. other people talking quietly in the background); and
(b) may use a hearing aid, cochlear implant or other device; and
(c) has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise; or

(2) The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).

44. The Respondent contends that this condition causes minimal or limited impact on the Applicant’s ability to function and that nil points should be assigned under Table 11. In his report dated 4 February 2015, Dr Currie said that this condition was generally well managed and caused only limited or minimal impact on the Applicant’s function.^[34] The Applicant’s self-reporting to the JCA confirms that this condition caused only limited impact on his ability to function.^[35]
45. The AAT1 review found that the appropriate rating for this condition should be 5 points. The Applicant told the AAT1 review he continues to have recurrent infections. He has had the problem with his ears on and off for up to 24 years. At intervals of perhaps six to eight weeks, he finds that the condition recurs and he has to have it treated by a draining procedure at a doctor’s surgery.
46. I accept this condition was fully diagnosed, treated and stabilised. Be that as it may, I agree with the findings of the JCA and ARO and consider that the appropriate impairment rating under Table 11 is nil points. The evidence leads me to no other conclusion than that this condition causes no functional impact on the Applicant. I do not doubt the historical reality of the symptoms. However, upon presentation at the hearing there was no evidence the Applicant had any hearing or balance difficulties, such that either or both of those symptoms affected his functional capacity.

Other conditions

Skin disorder

47. Dr Currie listed Fungal Skin Infection as one of the Applicant’s medical conditions that are well managed and that cause minimal or limited impact on ability to function.^[36]
48. The Respondent agrees with the findings of the JCA and accepts that the condition was fully diagnosed, treated and stabilised during the relevant period.^[37] Therefore, it is capable of being assigned a rating under the Impairment Tables.
49. The Applicant told the JCA that the fungal skin infection was mainly due to handling the skin of animals. According to Dr Currie and the Applicant’s own self-reporting to the JCA, this condition causes minimal or limited impact on the Applicant’s ability to function.^[38] The Respondent contends that the appropriate rating is therefore nil points under Table 14.^[39]
50. Table 14 is utilised when an Applicant’s condition results in a functional impairment related to disorders of, or injury to, the skin. The relevant descriptors for nil points are stated thus:

0 Points: There is no functional impact on activities requiring healthy, undamaged skin.

(1) The person is able to perform normal daily activities (e.g. washing dishes, shampooing hair, household cleaning and participating in outdoor activities) with no difficulty.

51. The AAT1 review said that the Applicant reported that the fungal skin condition was related to his work with cattle. The AAT1 did not consider there was sufficient evidence to conclude that this was a rateable condition.
52. I find that this condition was fully diagnosed, treated and stabilised during the relevant period. On the strength of Dr Currie’s report dated 4 February 2015, and the Applicant’s self-reporting to the JCA, I am not of the view that this condition causes any ascertainable impact on the Applicant’s ability to function. Accordingly, I allocate an impairment rating of nil points to this condition.

Varicose Veins & Tendonitis Right Hand

53. Dr Currie listed Varicose Veins and Tendonitis of the right hand as some of the Applicant’s medical conditions that are well managed and that cause minimal or limited impact on ability to function.^[40]
54. The Applicant told the JCA reporter that to date he had not required treatment for either of these conditions and they have limited impact on his ability to function. Therefore these conditions were not considered to be fully treated or stabilised.^[41]
55. The Respondent agreed with the findings of the JCA report and contends that these conditions could not be considered fully diagnosed, treated and stabilised during the relevant period. ^[42]
56. The AAT1 considered that there was insufficient evidence about either condition (particularly proposed treatments) to decide whether they were permanent in order to assign impairment ratings.^[43]
57. I agree with the previous findings of both the JCA and AAT1 review that these conditions cannot be considered fully treated or stabilised and therefore cannot be assigned an impairment rating.

Summary of Impairment Points

Condition	Table	Points Assigned
Spinal Condition	Table 4 – Spinal Function	10
Adjustment Disorder	Table 5 – Mental Health Function	Not fully diagnosed, treated or stabilised
Chronic Recurrent Otitis (Vertigo)	Table 11 – Functions of the Ears	0
Skin Disorder	Table 14 – Functions of the skin	0
Varicose Veins	Variously, Table 2 and/or Table 3 (as and if applicable)	Not fully treated or stabilised
Tendonitis in right hand	Table 2 – Upper Limb Function	Not fully treated or stabilised
Total Points =		10

58. As the Applicant does not have a total of 20 or more impairment points under the Tables, he does not satisfy the requirement under section 94(1)(b) of the Act (the second of the requirements for DSP). He therefore does not qualify for DSP via this application.

Continuing Inability to Work?

59. Given that this Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria for DSP.

An additional observation

60. The Applicant has failed to reach 20 points or more via this application. I note his conditions may have worsened or become fully diagnosed, treated and stabilised since the Relevant Period for this DSP claim. The Applicant may benefit from lodging a fresh application for DSP with additional and more recent medical evidence.
61. Alternatively, I note this Applicant was born on 25 July 1951. He turned 65 years of age on 25 July 2016. Prima facie, this would qualify him for the age pension.
62. I note from the material before me that the Applicant says he lodged a new DSP claim and a claim for Age Pension in June 2016.^[44]

CONCLUSION

63. The Applicant does not qualify for DSP because his conditions can only be assigned 10 impairment points during the Relevant Period.
64. Accordingly, the decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

..........................[sgd].........................................
Associate

Dated: 13 January 2017

Date of hearing:	15 September 2016
Applicant:	In person
Solicitors for the Respondent:	C. Campbell, Sparke Helmore Lawyers

---

^[1] Exhibit 8, T-documents, T9, p 77.

^[2] See Exhibit 8, T-documents, T10, pp 97 & 103.

^[3] Note: the form was signed by the Applicant on 4 February 2015.

^[4] Exhibit 8, T12, pp 109-115.

^[5] See Exhibit 8, T13, pp 116-117.

^[6] See Exhibit 8, T14, p 118.

^[7] Exhibit 8, T15, pp 119-123.

^[8] See Exhibit 8, T15, p 120.

^[9] Exhibit 8, T18, pp 126-127.

^[10] See Exhibit 8, T19, p 128 & T22, pp 136 – 137.

^[11] See Exhibit 8, T21, p 134.

^[12] Exhibit 8, T2, pp 3-10.

^[13] See Exhibit 8, T1, pp 1-2.

^[14] See Exhibit 1 – Applicant’s handwritten facsimile dated 24 June 2016 and attachments.

^[15] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

^[16] See s 26(1) of the Act.

^[17] See s 5(2) of the Determination.

^[18] See s 6(1) of the Determination.

^[19] See s 6(3) of the Determination.

^[20] See s 6(4) of the Determination.

^[21] See s 6(5) of the Determination.

^[22] See s 6(6) of the Determination.

^[23] See s 6(7) of the Determination.

^[24] See s 11(1) of the Determination.

^[25] See Exhibit 7, Respondent’s Statement of Issues, Facts and Contentions, [5.9].

^[26] See Exhibit 8, T12, p 110.

^[27] See Exhibit 8, T12, p 110.

^[28] See Exhibit 8, T10, p 98-99.

^[29] See Exhibit 8, T10, pp 98 -99.

^[30] See Exhibit 8, T2, pp 6 -7 [16 – 17].

^[31] See Social Security (Tables for the Assessment of Work0related Impairment for Disability Support Pension) Determination 2011, Table 5 – Mental Health Function, Introduction.

^[32] See Exhibit 8, T12, p 110.

^[33] See Exhibit 7, Respondent’s Statement of Issues, Facts and Contentions, [5.30].

^[34] See Exhibit 8, T10, p 103

^[35] See Exhibit 8, T12, p 111 & 113.

^[36] See Exhibit 8, T10, p 103.

^[37] See Exhibit 7, [5.32].

^[38] See Exhibit 8, T10, p 103 & T12, p 111.

^[39] See Exhibit 7, [5.33].

^[40] See Exhibit 8, T10, p 103.

^[41] See Exhibit 8, T12 p 111 – 112.

^[42] See Exhibit 8, T12 p 111 – 112.

^[43] See Exhibit 8, T2, p 9 [27 - 29].

^[44] See Exhibit 1 – Applicant’s handwritten facsimile dated 24 June 2016.