Delta and Secretary, Department of Social Services (Social services second review) [2020] AATA 4649 (3 July 2020)

Last Updated: 20 November 2020

Delta and Secretary, Department of Social Services (Social services second review) [2020] AATA 4649 (3 July 2020)

Division: GENERAL DIVISION

File Number(s): 2019/4529

Re: Ellen Delta

APPLICANT

And Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Senior Member P J Clauson AM

Date: 3 July 2020

Place: Brisbane

The Reviewable Decision is affirmed.

........................[SGD]..............................

Senior Member P J Clauson AM

Catchwords

SOCIAL SECURITY – Social Security Act 1991 (Cth) – Disability Support Pension – Impairment Ratings – Functional Impairment – Whether impairment sufficient to rate as severe – Decision Affirmed

Legislation
Social Security Act 1991 (Cth)

Social Security Administration Act 1999 (Cth)

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

Secondary Materials

Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011)

REASONS FOR DECISION

Senior Member P J Clauson AM


3 July 2020

1. On 25 September 2018, Ms Delta (‘the Applicant’) lodged a claim for Disability Support Pension (‘DSP’) listing her medical conditions as ischemic heart disease, ischemic cardiomyopathy and diabetes mellitus type 2.^[1] The claimant also provided medical reports and other documentation to support her claim, namely:

(a) Transthoracic Echocardiography Report dated 19 May 2016;

(b) Discharge Summaries dated 27 May 2016 and 26 August 2016;

(c) Exercise ECG Report dated 1 March 2018; and

(d) Medical Report by Dr Suranga Weerasooriya dated 27 March 2018.^[2]

2. Dr Weerasooriya’s report included a diagnosis list:

(a) Coronary artery disease;

(b) Scabies - treated;

(c) Lower lobe atelectasis;

(d) Atrial fibrillation postoperatively;

(e) Type 2 diabetes;

(f) Hypertension;

(g) Dyslipidaemia;

(h) GORD (Gastro-Oesophageal Reflux Disease);

(i) Ex-smoker; and

(j) Bilateral foot ulcers.^[3]

3. The issue before the Tribunal is whether the Applicant qualified for DSP at the date of her claim on 25 September 2018 or within 13 weeks thereafter, that being up until
   25 December 2018 (‘the Qualification Period’).

HISTORY OF THE MATTER

4. On 25 September the Applicant lodged a claim for DSP with Centrelink in writing, including a proforma medical report by Dr Soori Rishanghan dated 24 August 2018 which listed the medical conditions impacting upon the Applicant as:

(a) Ischemic heart disease; and

(b) Diabetes.^[4]

5. On 2 October 2018 a report was prepared rejecting the Applicant’s claim for DSP on the basis that she was ‘manifestly medically ineligible’, the reason being that her conditions were not fully diagnosed, treated and stabilised.^[5]
6. On 4 October 2018 the Applicant’s claim for DSP was rejected.^[6]
7. The Applicant provided further medical documents, namely:

(a) Transthoracic Echocardiography Report for an examination conducted on
17 May 2017;

(b) Discharge Summaries dated 29 September 2017 and 19 February 2018; and

(c) Medical Report by Dr Weerasooriya dated 9 January 2018.

8. The Applicant provided these documents on 17 January 2019.^[7]
9. A Job Capacity Assessment^[8] was conducted on 13 February 2019 by a Registered Psychologist and Occupational Therapist. The assessors found that the diabetes condition was fully diagnosed but not fully treated and stabilised and the assessors found further that the Applicant’s ischemic heart disease was fully diagnosed but not fully treated and stabilised pending re-engagement with cardiology and undertaking the appropriate cardiology tests and investigations.^[9]
10. The assessment concluded that the Applicant had a base work capacity of 15 to 22 hours per week and a capacity for work within two years with intervention of 15 to 22 hours per week.^[10]
11. The Applicant applied for a review of that decision by an Authorised Review Officer (‘ARO’).^[11]
12. On 21 March 2019 the ARO was unable to contact the Applicant prior to making the decision. However, the ARO agreed with the recommendations of the JCA assessor and found none of the conditions were fully treated and stabilised.
13. On 28 June 2019, following the Applicant’s Application for Review in the Social Services and Child Support Division of this Tribunal (‘AAT1’), the AAT1 affirmed the decision of the ARO to reject the Applicant’s claim for DSP.^[12]
14. On 26 July 2019 the Applicant lodged an Application for Second Review in this Tribunal.^[13]

LEGISLATIVE FRAMEWORK

15. 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.
16. 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 25 September 2018. There is, however, an exception where the person is not qualified on that date but ‘becomes qualified’ within 13 weeks of lodging a claim, in which case the start date for DSP is the date the person becomes qualified.^[14] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 25 September 2018 and 13 weeks thereafter, namely 25 December 2018 (‘the Relevant Period’).
17. 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 para [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 12 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. (Tribunal’s underlining)

18. 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’),^[15] 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 choose to do or what others do for them.^[18]
19. 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]
20. 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:

(a) whether there is corroborating evidence of the condition;

(b) what treatment or rehabilitation has occurred in relation to the condition; and

(c) whether treatment is continuing or is planned in the next two years.^[21]

21. A condition is ‘fully stabilised’ if:

(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two 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 two 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]

22. ‘Reasonable treatment’ is treatment that:

(a) is available at a location reasonably accessible to the person;

(b) is at a reasonable cost;

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

(d) is regularly undertaken or performed;

(e) has a high success rate; and

(f) carries a low risk to the person.^[23]

23. The Impairment Ratings on each table increase in set multiples and 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]
24. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

ISSUES FOR THE TRIBUNAL

25. The issues for this Tribunal to consider are:

(a) whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric condition(s) which was fully diagnosed, treated and stabilised;

(b) whether the Applicant’s condition(s) warranted an Impairment Rating of 20 points or more under the Impairment Tables, and if so;

(c) 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

(d) whether the Applicant has a continuing inability to work.

CONSIDERATION

Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

26. 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 section 94(1)(b) (or (c)) of the Act.^[25]
27. The Tribunal accepts that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. The Tribunal proposes to deal with the calculation of impairment points by reference to each of the Applicant’s various medical conditions.

Condition 1 - Heart Condition, Table 1 - Functions requiring physical exertion and stamina

28. The Tribunal accepts that the Applicant has provided evidence that she has suffered from a heart condition and that she has undergone surgical procedures namely, the insertion of a bare metal stent in March 2016 following a heart attack and coronary artery bypass surgery on 19 May 2016.^[26]
29. The Applicant has also been hospitalised from that time on three subsequent occasions as follows:

(a) 23 August 2016 for a heart blockage^[27];

(b) 26 September 2016 for chest pain^[28]; and

(c) 18 February 2018 for unstable angina^[29];

30. The Applicant, it is noted, was recorded in each of the Discharge Reports relating to the events in (b) and (c) as being, to varying extents, non-compliant with and compromising of her medication regime namely, the Discharge Report for 26 September 2017^[30] notes that the Applicant admitted that ‘she doesn’t take her medications when she is drinking alcohol which she does every second day’. Also, the Discharge Report relating to the event on
    18 February 2018^[31] stated ‘other active problems’ - poor medication compliance, active smoker, ETOH (short hand for ethanol) misuse.^[32] This report also noted that the Applicant was counselled with regard to her medication compliance, smoking cessation and ETOH cessation.^[33] Her Cardiologist, Dr Weerasooriya, in their report of 9 January 2018, noted that the Applicant had an ongoing problem with medication compliance when she had been drinking. The report also noted that the Applicant was provided with an ongoing plan in which the recommendations were that she:

(a) have a follow-up consultation in six months;

(b) adhere to her therapy; and

(c) quit smoking and drinking completely whilst acknowledging the difficulties for her of so doing.^[34]

31. In a later report dated 27 March 2018^[35], Dr Weerasooriya observed, inter alia, that the Applicant seemed, by the Doctor’s impression, to be reasonably compliant with her medication but that her ongoing alcohol use and smoking were of concern. It is noted also that Dr Weerasooriya reiterated the importance of giving-up alcohol and smoking.
32. The Applicant, in her evidence, confirmed the history of her cardiac condition to the Tribunal and the fact that her last engagement with a Cardiologist took place in March 2018, a significant time prior to the Relevant Period.
33. Ms Delta also described the pain that she has in the leg from which the vein to construct her cardiac bypass was scavenged and how that discomfort affects her mobility negatively. She told the Tribunal that in regard to her heart condition:

- - - Yes, like I haven’t had much problem with it. Like I haven’t been to the Cardiologist this year.^[36]

34. The Applicant confirmed that she consults her GP about her heart condition and that he does the necessary tests:

Yes, visit my GP and he tests my heart, just everything is okay.^[37]

35. The following exchange between Ms Smith, the Respondent’s Representative and Ms Delta tended to clarify the relative impacts of the Applicant’s heart condition and the postoperative consequential discomfort from her leg endured by her:

Ms Smith: So, can I ask what’s your main condition at the moment that’s causing you some problems?
Ms Delta: - - - I don’t know, that’s when I went to my doctor and he said nothing’s wrong with me.
Ms Smith: Okay?
Ms Delta: - - - That’s - well, like when I’m getting the pain.
Ms Smith: With your leg?
Ms Delta: - - - Yes.^[38]

36. The Applicant told the Tribunal that the medical reports referencing her inconsistent compliance with taking her medication were correct. She stated also that when she became stressed with family, she would get angry and ‘have a beer’ and she would not take her medication but then would the next day. She also indicated that now she wasn’t drinking and took her medication and insulin each day.^[39]
37. The Applicant’s evidence to the Tribunal during the hearing was that she was not drinking and smoking during the Relevant Period.^[40] However, her evidence later to the Tribunal during the hearing was somewhat contradictory of her earlier statement above, as evidenced by the following exchange between the Applicant and the Senior Member:

Senior Member: So, how long is it since you gave up cigarettes?
Ms Delta: Probably six, seven months and I went back on it again.
Senior Member: Okay. So, you’re smoking again now, is that what you’re telling me?
Ms Delta: Yes, I’m not drinking - like I smoke now.
Senior Member: Sorry, that wasn’t clear to me. Are you saying that you still have a drink and you still have a smoke now; is that correct?
Ms Delta: No, I don’t drink much - I don’t drink now and smoke.
Senior Member: You don’t drink at all?
Ms Delta: Yes.^[41]

38. The Tribunal concludes that in relation to this aspect of the Applicant’s evidence, that she is still drinking and smoking to varying degrees from time to time. The Tribunal accepts, however, that she is making attempts to reduce her usage of tobacco and alcohol given her condition and the repeated and associated advices of her Doctors.
39. The Tribunal, although accepting that the Applicant has a heart condition and suffers from impairments as a result of it, has before it the Applicant’s evidence that she suffers pain in her leg from which the vein used in her transplant bypass was scavenged. The Tribunal accepts that this is a consequential condition induced by the surgical procedure the Applicant endured. The difficulty for the Tribunal regarding this leg pain condition is that there is minimal general medical or specialist opinion for the Tribunal to draw upon regarding any treatment available for the condition and the likelihood of what would classify it as in a stable state following such treatment. It is a complication that poses a conundrum for the decision-maker insofar as it now exists in concurrence with the heart condition and its effects seen, on the evidence of the Applicant, to overlap those of the heart condition itself. Without the assistance of the relevant medical opinion, it is impossible to rate an impairment, if any, flowing from this condition even though the Applicant’s evidence was that she had been suffering from its effects throughout the Relevant Period.
40. The Tribunal will therefore consider the substantive heart condition and the evidence relating to that condition in order to establish if a rating can be assigned to it pursuant to the Impairment Tables.
41. The evidence before the Tribunal relating to the Applicant’s medical conditions is contained effectively in the medical reports of Drs Weerasooriya and Rishanghan, together with the evidence of the Applicant given to this Tribunal.
42. The report of her treating Cardiologist, Dr Weerasooriya, of 9 January 2018^[42], noted inter alia that the Applicant, upon review, had been ‘quite well in the recent past’ and ‘with very minimal symptoms of note’. The Doctor also noted that the Applicant had been walking ‘a fair bit’ and had lost weight with exercise and ‘was; maintaining a reasonable diet’ and had reduced her weight by about eight kilograms. It was also reported that the recent ‘transthoracic echocardiogram is reassuring in which the left ventricular function is shown to be around 45% which is only mildly impaired’. It was also commented that she had normal right ventricular size with impaired function with mild mitral regurgitation only. Dr Weerasooriya also noted the treatment plan previously mentioned herein, a key component of which was an organised follow-up with Dr Weerasooriya in six months’ time. The Doctor also advised the Applicant to give up smoking and drinking completely whilst acknowledging the difficulty for the Applicant to do so.
43. The Applicant was again reviewed by Dr Weerasooriya in March 2018 and in that report of 27 March^[43], the Doctor referenced the episode of chest pain in February, for which the Applicant was hospitalised, and noted that the Applicant had not suffered any further episodes of chest pain whilst at home. He also noted that her breathlessness had ‘significantly improved’. The Doctor also noted that:

She walks around the shops with an effort tolerance of approximately 10 minutes on the flat.

44. The report also noted that she was smoking 10 cigarettes a day and binge drinking about 6 to 12 cans of beer ‘in one go’ on the weekend. The Doctor also commented that her medication compliance appeared to be reasonable, but appeared to have some reservations about her compliance with her regimen when she was heavily using alcohol. Dr Weerasooriya also noted that he had organised a repeat echocardiogram for Ms Delta in six months’ time and a follow-up review in Outpatients and also re-emphasised the need to give-up alcohol completely and to quit smoking.
45. It is noted that this was the last engagement with her cardiac specialist notwithstanding the review arrangements made for her. This was confirmed by the Applicant to this Tribunal at the hearing of her review. This was further confirmed by the Job Capacity Assessment (‘JCA’) Report of 13 February 2019.^[44]
46. The Applicant’s General Practitioner (‘GP’), Dr Rishanghan, prepared a report on 24 August 2018^[45] in which the symptoms relating to the Applicant’s heart condition were stated as ‘Chest pain/short of breath, unable to walk far’ and, in a later report dated 17 September 2018^[46] stated the Applicant’s symptoms as:

Chset (sic) pain/short of breath, unaable (sic) to waalk (sic) far.

47. The Applicant’s treatment was stated as:

Has had surgery, now on medical management.

48. The Tribunal notes also the exercise ECG (shorthand for electrocardiogram) report of 1 March 2018 (stress test)^[47] concluded that, inter alia, the Applicant suffered from poor exercise tolerance with positive ECG changes which suggested inducible ischemia.^[48]
49. In her evidence to the Tribunal, the Applicant confirmed that during the Relevant Period she was able to clean the yard and the house, but suffered from her heart beating really fast and also from the pain in her leg from where the bypass donor vein was removed. She also told the Tribunal she suffered from shortness of breath at the same time. She also stated that during the Relevant Period she could go shopping with her daughter and could get from the car to the shopping centre and would then ‘like sit for a while’.
50. The Applicant also told the Tribunal she could do the washing-up whilst standing, but would then sit and rest for a while. The Applicant also told the Tribunal that during the Relevant Period the pain in her leg did affect how much walking in a shopping centre she could do, and also limited her domestic abilities to some light work around the house. The following exchange took place between the Respondent’s representative, Ms Smith, and the Applicant regarding the relative effect of both the heart condition and the leg pain condition:

Ms Smith: Yes. Sorry to go over it again but, Ms Delta, can I just confirm back then, in the September 2018 to December 2018, the pain in your leg was one thing that was causing you problems back then and affecting how much you could do things like walk around the shopping centre and do light work around the house?
Ms Delta: - - - Yes.
Ms Smith: Yes. So, it was both your heart condition and your pain in your leg?
Ms Delta: - - - Yes, but - no, like I haven’t got problem with my heart, that’s just my leg now having problem with.

51. The Tribunal is satisfied that given the material contained in the medical reports of Drs Weerasooriya and Rishanghan, together with the Applicant’s oral evidence to the Tribunal, the Applicant suffers from a heart condition that causes her impairment.
52. The Tribunal is further satisfied that Ms Delta suffers from the addiction, to a greater or lesser extent from time to time, to tobacco and alcohol and that it is difficult for her to manage a total withdrawal from their usage as recommended by her medicos. Her evidence to the Tribunal in this regard was quite frank, if at times somewhat confusing.
53. The Tribunal, whilst acknowledging that her use of these substances is unlikely to be beneficial for someone in her position, they are nevertheless a peripheral issue to the question of whether her heart condition is fully diagnosed, fully treated and stabilised. Likewise, the Tribunal has given consideration to the Applicant’s lack of specialist review up to and during the Relevant Period. The Tribunal has decided that although it would have been prudent for the Applicant to have taken advantage of this service, she has to a large degree, relied upon the care of her GP to monitor her general health and in particular, her cardiac condition. The Tribunal is satisfied that Dr Rishanghan considers her condition to be stable and Dr Rishanghan has indicated also to the Applicant and as she stated to the Tribunal, that she went to her GP who tested her heart and told her that there was nothing wrong with her regarding the heart condition.^[49]
54. The Tribunal therefore finds that the Applicant has undertaken all reasonable treatment available to her for the heart condition and does not consider that the lack of cardiac specialist review is indicative of a failure to undertake reasonable treatment. It would be highly likely that if such a review became an imperative resulting from a significant change in her condition, that her GP would make such a referral.
55. The Tribunal therefore finds that the Applicant’s heart condition is fully diagnosed, fully treated and stabilised and is able to be rated for its functional impact upon her under the Impairment Tables. In the Applicant’s case, Table 1 - Functions Requiring Physical Exertion and Stamina - is the appropriate Table under which an Impairment Rating can be considered for her heart condition.

5	There is a mild functional impact on activities requiring physical exertion or stamina. (1) The person: (a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty: (i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or (ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and (b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10	There is a moderate functional impact on activities requiring physical exertion or stamina. (1) The person: (a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person: (i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or (ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and (b) is able to: (i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and (ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20	There is a severe functional impact on activities requiring physical exertion or stamina. (1) The person: (a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to: (i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or (ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or (iii) use public transport without assistance; or (iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and (b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

56. It can be seen from the Table above that the Applicant’s condition is to be appropriately considered within the Table descriptors relating to functional impacts ranging through mild, moderate and severe.
57. The Tribunal has been guided in its assessment of the functional impact of her heart condition upon the Applicant by the reports of Dr Weerasooriya wherein the Doctor has generally considered that the Applicant was able to walk around the shopping centres for up to 10 minutes and was able to lose some weight with exercise. The Tribunal has also taken into account the Applicant’s exercise ECG report indicating her poor exercise tolerance. The report of her GP, Dr Rishanghan, has also been considered and that Doctor noted the Applicant’s chest pain and her inability to walk for 100 yards without suffering shortness of breath.
58. The Tribunal also accepts the Applicant’s testimony that her heart condition has improved to a point where the pain in her leg is causing more discomfort than the heart condition and that she can walk unassisted around a shopping centre with rest periods and go shopping with her daughter. Her evidence that she can stand to wash-up, pick up rubbish from the ground and sweep the verandas has also been considered by the Tribunal in coming to its decision regarding the functional impacts upon her of her condition.
59. The Applicant also told the AAT1 that she could do some laundry and was able to walk short distances to nearby shops whilst noting that her walking distance had been reduced as indicated in the Certificate of Dr Rishanghan. The Tribunal finds that having considered the foregoing evidence in aggregate, the Applicant’s heart condition as the Relevant Period, should be assigned a total 10 points under Table 1 of the Impairment Tables.

Diabetes Condition - Table 1 - Functional impact on activities requiring physical exertion or stamina

60. The second medical condition from which the Applicant suffers is diabetes mellitus type 2 and she was diagnosed with this condition in 1997.^[50]
61. The Applicant’s GP, Dr Rishanghan, in Medical Certificates dated 24 August and
    17 September 2018 respectively, notes the condition and considered it to be permanent with an uncertain prognosis.^[51]
62. The Applicant gave evidence to the Tribunal that her diabetes condition was diagnosed in 1997 and that she was taking insulin three times a day by way of a pen for the control of that condition.^[52]
63. The Applicant’s evidence to this Tribunal was that she had consulted a dietician for the purpose of establishing a diabetes nutrition program in 2000 and 2018.^[53] The Applicant told the Tribunal that on the most recent consultation in 2018, the lady who saw her said:

- - - My diabetes was good.

64. The Applicant also confirmed to the Tribunal that:

- - - The diabetes wasn’t causing me any trouble.

at the Relevant Period.

65. The Tribunal has before it no evidence to suggest that the Applicant’s diabetes condition causes her any impairment. Further, diabetes is a condition which is rated under Table 1 of the Impairment Tables and as separate ratings are prohibited from being assigned under the same Table, no extra rating could be assigned to the Applicant’s diabetes condition at the Relevant Period. It would need to be assessed and rated as a common impairment with her heart condition pursuant to section 10(5) and (6) of the Impairment Tables. The Tribunal considers that the Applicant’s diabetes condition is fully diagnosed, fully treated and fully stabilised insofar as the condition has been one of longstanding, the treatment for it has been undertaken by the appropriate application of insulin daily and although the prognosis has been described as ‘uncertain’ by her GP^[54], that is a view which would accord with any condition from which a person may suffer. Disease has no predictability of progress and, in the Tribunal’s view of Ms Delta’s condition, it has been appropriately and reasonably treated on an ongoing basis. No other reasonable treatment has been proposed by her medicos which would lead to a significant functional improvement to a level enabling Ms Delta to undertake work in the next two years. Therefore, the Tribunal considers it to be fully stabilised.
66. The Applicant’s diabetes condition is thus capable of being rated under the Impairment Tables however, in this particular circumstance the Tribunal has no evidence before it capable of leading it to a conclusion that it has any functional impact upon the Applicant. In fact, the Applicant’s own evidence to this Tribunal was quite clear that it did not so affect her. The Tribunal therefore is not assigning any Impairment Rating to the diabetes condition.

Summary of Impairment Points

67. The Tribunal finds that the Applicant’s heart condition is fully diagnosed, fully treated and fully stabilised and can be awarded 10 points under Table 1 of the Impairment Tables. The Tribunal finds that the Applicant’s diabetes condition is fully diagnosed, fully treated and fully stabilised, however, as no impairment is in evidence from this condition zero points are assigned to this condition.
68. The Applicant does not have a total of 20 or more impairment points under the Tables and thus she does not satisfy the requirement under section 94(1)(b) of the Act (the second of the requirements for DSP) and thus she is unable to qualify under this application for DSP.

Continuing Inability to Work

69. Given that this Applicant’s impairments do not attract 20 or more points at the Relevant Period, it is not necessary for the Tribunal to consider whether she satisfies the rest of the criteria for DSP.

CONCLUSION

70. The Applicant’s conditions can only be assigned 10 impairment points during the Relevant Period and thus she does not qualify for DSP.

DECISION

71. Accordingly, the decision under review is affirmed.

I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

...............................[SGD].................................
Associate

Dated: 3 July 2020

Date(s) of hearing:	31 January 2020
Date final submissions received:	14 October 2019
Applicant:	Self-Represented by Telephone
Solicitors for the Respondent:	D Smith, Services Australia

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^[1] Exhibit 1, T10, pages 82 to 113.

^[2] Exhibit 1, T11, pages 114 to 136.

^[3] Exhibit 1, T11, page 134.

^[4] Exhibit 1, T8, page 80.

^[5] Exhibit 1, T12, page 137.

^[6] Exhibit 1, T13, page 139.

^[7] Exhibit 1, T16, pages 144 to 162.

^[8] Exhibit 1, T17, pages 163 to 168.

^[9] Ibid pages 165 to 166.

^[10] Ibid page 166.

^[11] Exhibit 1, T19, pages 170 to 174.

^[12] Exhibit 1, T2, pages 3 to 8.

^[13] Exhibit 1, T1, pages 1 to 2.

^[14] See sections 41 and 42 and clause 3 and clause 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth) (‘the Act’).

^[15] Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (‘the Determination’).

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

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

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

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

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

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

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

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

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

^[25] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, pages 6 to 9.

^[26] Exhibit 1, T11, page 117.

^[27] Ibid at page 125.

^[28] Exhibit 1, T16, page 146.

^[29] Ibid at page 157.

^[30] Ibid.

^[31] Ibid.

^[32] Ibid at page 157.

^[33] Ibid at page 158.

^[34] Exhibit 1, T16, pages 154 to 156.

^[35] Exhibit 1, T11, pages 134 to 136.

^[36] Transcript of Proceedings, page 10.

^[37] Ibid.

^[38] Ibid.

^[39] Ibid.

^[40] Transcript of Proceedings, page 14.

^[41] Transcript of Proceedings, page 15.

^[42] Exhibit 1, T16, page 154.

^[43] Exhibit 1, T11, pages 134 to 136.

^[44] Exhibit 1, T17, page 164.

^[45] Exhibit 1 T9, page 80.

^[46] Ibid at page 81.

^[47] Exhibit 1, T11, page 132.

^[48] Ibid at 133.

^[49] Transcript of Proceedings, page 10.

^[50] Exhibit 1, T8, page 80; Exhibit 1, T 10, page 107.

^[51] Exhibit 1, T8, page 80; Exhibit 1, T9, page 81.

^[52] Exhibit 1, T11, page 120.

^[53] Transcript of Proceedings, page 13.

^[54] Ibid; Exhibit 1, T8, page 80.