Issue 2: Can an impairment rating be allocated in relation to each of the conditions impacting the Applicant for his 19 September 2022 claim and, if so, how many points can be allocated?

1. The Applicant's position is that his lower limb (hip) condition was fully diagnosed, treated and stabilised for the purposes of his 19 September 2022 claim, as confirmed by his general practitioner (referred to as Dr C in these Reasons), at the time and that he should have been receiving disability support pension from that time on that basis. The Applicant said he accepts that the neurological condition (variously described as epilepsy or FND) was very uncertain at the time and was being investigated but he considers he should have been receiving disability support pension for his hip condition. He said whenever he took forms into Centrelink at the front counter, they were always querying why he had not applied for disability support pension.
2. The Respondent's position is that none of the conditions impacting the Applicant were fully diagnosed, treated or stabilised as of 19 September 2022 nor during the qualification period such that impairment ratings can be assigned.
3. I considered each of the identified conditions impacting the Applicant in turn.

1. The Applicant's evidence at hearing included that he suffered a workplace injury in 2017 - he found out that he had torn the ligaments, tendons and cartilage in his right hip. He subsequently had surgery on his right hip in 2018. His left hip then subsequently ended up exactly the same. He was told by his doctor in Tasmania that there was nothing more they could do for him, and he was told to move to a warmer climate. It was only after he moved from Tasmania to Queensland in February 2021 and saw a doctor at the Logan Hospital that he had MRIs and was told that he was losing cartilage on both hips because of bone impingement. He was put on a waiting list for surgery. He was bumped from the list 3 times and rang the Health Minister to sort out why. He finally had surgery in September 2024 at the Royal Brisbane and Women's Hospital.
2. I discussed with the Applicant that the documentation suggests that various treatment options, such as hydrotherapy and an exercise program, were being proposed in June 2022 with a view to improving mobility and muscular strength and ultimately improving his ability to function. Further, the medical evidence from a neurologist in 2023 suggests that further investigation of the hip injuries was awaited with consideration being given to a hip replacement. The Applicant said that when he first came to Queensland, his general practitioner was Dr C, and he was basically saying that everything that could be done for him had been done. The Applicant referred to a letter from Dr C dated 17 June 2021[4] which states as follows:

This is to certify that Mr KBNF's medical conditions have reached maximum improvement from medical therapy and his conditions are permanent.

and a further letter dated 16 September 2021[5] from Dr C which states as follows:

This is to certify that Mr KBNF has chronic labrial tear and bursitis to the hips. The injuries goes back at least 3 year. This is to state that he has reached maximal improvement for his injuries. He suffers mild to moderate functional impact on activities requiring use of his lower limbs.

1. The Respondent outlined various medical reports in evidence relating to the lower limb condition impacting the Applicant at paragraphs 45 to 59 of its SFC. Submissions included that the evidence shows that further investigation of the Applicant's hip condition was still being undertaken at the relevant time including as follows:

(a) On 2 June 2022, an accredited exercise physiologist and exercise scientist recommended the Applicant complete an exercise program to 'improve mobility and muscular strength' and to 'improve function for ADLs'; > > (b) On 8 November 2023, a neurologist documented that the Applicant was awaiting investigation of his hip injuries and may be due for a hip replacement; > > (c) The Applicant's evidence to the AAT on first review included that he first attended the orthopaedic outpatient clinic at Logan Hospital in August 2023; > > (d) A medical certificate dated 27 September 2024 indicates that the Applicant underwent surgery on his left hip ion 12 September 2024 with ongoing physiotherapy recommended; > > (e) Documents dated much later than the end of the qualification period recommend a script for endone and for the general practitioner to consider ongoing pain medication, with no corroborative evidence regarding prognosis of the Applicant's condition or functional impairment; and > > (f) Centrelink's HPAU Medical Advisor's report of 23 December 2024 included that there is sufficient evidence to consider bilateral hip pain was not fully diagnosed, treated and stabilised. Further, the evidence indicates an exacerbation or extension of his hip pathology or possibly other processes producing pain.

2. In oral evidence, Dr B stated that his view was that as well as not being fully treated and fully stabilised within the qualification period, the hip conditions were not full diagnosed within that period because the evidence shows that new issues with the hips subsequently arose which were not diagnosed at that stage. The Applicant had undergone arthroscopy and cortisone injections to his hip with improvement, but then further pain and dysfunction came back, and it is not clear whether that was recurrence of the initial problem or a new issue.
3. The Respondent submitted that little weight should be afforded to Dr C's and the physiotherapist's evidence when further investigation of the Applicant's hips was noted by a neurologist in 2023. Notably in this regard, in addition to Dr C's letters referred to earlier, the Applicant's physiotherapist (referred to as Ms W in these Reasons), in a letter dated 27 May 2022 opined that physiotherapy treatment was aimed at managing pain and keeping the Applicant declining further.
4. Subsections 6(5) and (6) of the Impairment Determination essentially provide that a condition can be considered fully treated and fully stabilised if there is no further reasonable treatment that can be undertaken that could result in significant functional improvement to a level enabling the person to work in the next 2 years. Those subsections provide as follows:

(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

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

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

(c) whether treatment is continuing or is planned in the next 2 years.

(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

(b) the person has not undertaken reasonable treatment for the condition and:

(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

1. There is differing evidence as to whether the lower limb condition impacting the Applicant was fully treated and stabilised for the purposes of the 19 September 2022 claim. Dr C clearly opined in 2021 that the Applicant had reached 'maximal improvement' in respect of this condition. It is clear that further investigations were being undertaken and further treatment being explored. Subsequent events have shown that despite further investigations and treatment, the Applicant has not had significant functional improvement to a level enabling him to undertake work. Notably, the Applicant's evidence was that even after the surgery in September 2024, there was only a slight improvement, and he continues to be in a lot of pain with his hips continually 'popping out' and him requiring morphine patches to manage the pain.
2. I put significant weight on the reports of the Applicant's treating medical professionals at the time, Dr C and Ms W, in relation to whether this condition was fully treated and fully stabilised at the relevant time. Although investigations and treatment options were continuing, it is clear that the medical professionals with most knowledge of the Applicant's condition at the time held the view that the condition was fully treated and stabilised and that further treatment was for managing pain and preventing further decline, as opposed to obtaining significant improvement in functional capacity. This evidence, directly relevant to the qualification period, has been shown to be correct with the effluxion of time with the Applicant not improving to 'a level enabling (the Applicant) to undertake work within 2 years'. Having had regard to the reports of Dr C and Ms W, I am satisfied that for the purposes of the 19 September 2022 claim, the lower limb condition impacting the Applicant was fully diagnosed, fully treated and fully stabilised, and therefore permanent for the purposes of that claim.
3. As I have found the lower limb condition impacting upon the Applicant can be considered permanent for the purposes of his 19 September 2022 claim, an impairment rating can be assigned pursuant to the Impairment Tables.
4. The relevant Impairment Table is Table 3, which assigns impairment ratings for a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet (Table 3).
5. The descriptors for assignment of points under Table 3 include as follows:

• Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
• The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
• Self-report of symptoms alone is insufficient.
• There must be corroborating evidence of the person's impairment.
• Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
  • a report from the person's treating doctor;
  • a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
  • a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
  • results of diagnostic tests (e.g. X-Rays or other imagery);
  • results of physical tests or assessments.
• For the purposes of this Table lower limbs extend from the hips to the toes.

There is no functional impact on activities requiring use of the lower limbs.

(a) walk without difficulty on a variety of different terrains and at varying speeds; and

(b) walk without difficulty around the home and community; and

(c) kneel or squat and rise back to a standing position without difficulty; and

(d) stand unaided for at least 10 minutes; and

(e) use stairs without difficulty.

There is a mild functional impact on activities using lower limbs.

(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c) the person has some difficulty climbing stairs; and

(a) the person is unable to stand for more than 10 minutes;

(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

There is a moderate functional impact on activities using lower limbs.

(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b) the person is unable to use stairs or steps without assistance; or

(c) the person is unable to stand for more than 5 minutes; and

(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3) This impairment rating level includes a person who can:

(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

There is a severe functional impact on activities using lower limbs.

(a) is unable to do any of the following:

(i) walk around a shopping centre or supermarket without assistance;

(ii) walk from the carpark into a shopping centre or supermarket without assistance;

(iii) stand up from a sitting position without assistance; and

(2) This impairment rating level includes a person who requires assistance to:

(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

There is an extreme functional impact on activities using lower limbs.

(1) The person is unable to mobilise independently.

1. Dr C's 1 July 2022 medical report (provided for the purposes of a mobility allowance claim) gives some insight in relation to the impairment upon the Applicant as at that date because of the lower limb condition. The Applicant agreed that report is consistent with the impact of the hip condition upon him at that time. The Applicant agreed that at the time he had moderate difficulty walking 400 metres and had serious difficulty standing on public transport, minor difficulty sitting on public transport, moderate difficulty crossing streets and negotiating curbs, negotiating steps in or out of public transport and difficulty negotiating a large flight of stairs. The Applicant told me that additionally at the time he was in constant fear of falling because of his hip condition. At the time he was living with a family friend, and he was using public transport. He has only recently started receiving assistance to get around to appointments and shopping etc.
2. Other evidence before me as to the impact of the condition upon the Applicant proximate to the relevant time included Ms W's 27 May 2022 letter. That letter includes that the Applicant mobilised with a single point stick due to unbalanced gait, reports the Applicant falling 5+ times a week due to poor balance and giving way in his hips, an antalgic gait pattern due to the decreased range of motion and pain in his hips, with him finding navigating stairs very difficult. It is also noted that the Applicant found self-care activities like dressing, showering and home duties difficult, with sleep also affected and sitting limited to no longer than 15 minutes without pain increasing.
3. I discussed the descriptors in Table 3 with the Applicant at hearing and noted that I might hold a concern that, for example, there was no evidence corroborated by a medical practitioner that at the relevant time he could not stand from a sitting position without assistance, one of the things I would need to be satisfied about for 20 points to be allocated under Table 3. The Applicant said that he used to get around a shopping centre with a walking stick, or with crutches like he now uses. I noted that the term "assistance" referred to means without assistance of another person as noted in clause 3.6.3.05 of the Guide as follows:

The term assistance is used in numerous descriptors within various Impairment Tables. In all of these cases assistance means from another person, rather than any aids, equipment or assistive technology the person has and usually uses."

1. Taking these matters into account and the descriptors contained in Table 3, I am satisfied that for the purposes of the Applicant's 19 September 2022 claim, there was a mild functional impact on activities requiring the use of the lower limbs. It follows that an impairment rating of 5 points can be allocated under Table 3. I am not satisfied that any higher impairment rating could be allocated at that time including because the evidence is that the Applicant could walk to his local shopping centre and did not require the assistance of another person to use public transport and, further, could stand up from a sitting position without assistance.

1. As previously noted, the Applicant accepts that the neurological condition impacting him was very uncertain at the time of his 19 September 2022 claim.
2. In cross-examination, the Applicant agreed he undertook investigations at an epilepsy outpatient clinic on 13 January 2022, incorporating a number of EEGs including 'take 'home' EEGs. He subsequently received a diagnosis for combined epileptic seizures and dissociative attacks and a plan was formulated for him to continue his medication and be reviewed every five to six weeks by telephone, with potentially another MRI and EEG to be done. The Applicant said his concern was that he was being told to take medication for epilepsy without any confirmed diagnosis. He said that even now it is still under investigation.
3. The Applicant was referred to a letter from a Neurology Registrar, Neurology Department at Princess Alexandra Hospital to Dr C dated 12 October 2022,[6] with it noted that he was being asked to keep a headache diary, with medication changes and review in 4 months. That report concludes that 'the possibility of attaining seizure-free status remains'. The Applicant said that he has continued to update his neurologist about the same thing, and he has pretty much now determined that he has FND (functional neurological symptom disorder), with that being diagnosed in about June or July 2024. He first saw the neurologist (referred to as Dr L in these Reasons) in around May 2023. He was having symptoms like fatigue, blacking out and headaches. His general practitioner in Tasmania had thought it was chronic fatigue or pain related including being the reason why he couldn't sleep. He agreed that Dr L made some further recommendations for medication around November 2023, with investigations of his heart and review every 4 to 6 months. He is not seeing Dr L anymore. He felt like he was being used a guinea pig.
4. The Respondent's position is that this condition was not fully diagnosed, treated or stabilised as of 19 September 2022 nor during the qualification period.
5. Dr B's oral evidence at hearing was that as regards the epilepsy condition, the last review from the epilepsy clinic included that the Applicant was continuing to be reviewed and, further, was to be stabilised on medication. At the relevant time, he had only been trialled on one type of medication such that even though a diagnosis had been made, the condition could not be said to have been stabilised at the time. As regards the diagnosis, Dr B said that he was satisfied that even if an exact label hadn't been given, there was sufficient diagnosis - of dissociative attacks with epilepsy seizure activity - that treatment options could start.
6. I am satisfied based on the evidence that although an exact diagnosis may not have been made at the relevant time, diagnosis of a neurological condition impacting the Applicant had been made however described. However, the evidence does not support that the condition, however described, was fully treated and fully stabilised. Unlike in relation to the hip condition, where Dr C's and Ms W's reports support such a finding, there is no medical evidence that the neurological condition was fully treated and fully stabilised at the relevant time.
7. I find that the neurological condition impacting the Applicant cannot be assessed as fully treated and stabilised, and therefore permanent as defined, for the purposes of the Applicant's 19 September 2022 claim. It follows that no impairment rating can be allocated in relation to this condition for the purposes of that claim.

1. In cross-examination, the Applicant agreed that he first saw a consultant psychiatrist (referred to as Dr A in these Reasons), in 2023, with Dr A reporting that he had moderate depression due to ongoing pain. He was prescribed antidepressants and is still taking that medication. His is still awaiting referral to a clinical psychologist from his doctor.
2. The Respondent's position is that this condition was not fully diagnosed, treated or stabilised as of 19 September 2022 nor during the qualification period including on the basis that there is no corroborating evidence of diagnosis having been made by a psychiatrist prior to or during the qualification period nor is there any evidence of diagnostic input by a clinical psychologist.
3. Impairment associated with mental health functioning is rated under Table 5 of the Impairment Tables. The introduction to Table 5 states 'The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)'.
4. I accept, as submitted by the Respondent, that there is no evidence of the necessary diagnosis of a mental health condition by either a psychiatrist of a clinical psychologist before or during the qualification period. It follows that I am unable to conclude that this condition was fully diagnosed, and therefore permanent as defined, for the purposes of the 19 September 2022 claim. It follows that no impairment rating can be allocated in relation to this condition for the purposes of that claim.

Issue 3: Can a total of 20 points or more be allocated in relation to the Applicant's 19 September 2022 claim?

1. Having considered the evidence before me, I find that the only condition impacting upon the Applicant which can be allocated an impairment rating for the purposes of the 19 September 2022 claim for disability support pension is the lower limb condition. I have found that that condition attracts an impairment rating of 5 points under Table 3 of the Impairment Tables based upon the evidence. As this is less than the 20 points required, the Applicant does not satisfy paragraph 94(1)(b) of the Act as required and was not medically qualified for disability support pension for the purposes of his 19 September 2022 claim.

Issue 4: Did the Applicant have a continuing inability to work for the purposes of the 19 September 2022 claim for disability support pension?

1. Given my previous findings, it is not necessary to address the remaining identified issue of whether the Applicant had a continuing inability to work for the purposes of the 19 September 2022 claim.

1. I have found that paragraph 94(1)(a) of the Act is satisfied but not paragraph 94(1)(b) of the Act for the purposes of the Applicant's 19 September 2022 claim. The Applicant therefore does not meet all the requirements necessary to medically qualify for disability support pension for the purposes of his 19 September 2022 claim. That claim must therefore be rejected. It follows that the decision under review is affirmed.
2. I accept that the Applicant was impacted by a number of medical conditions, including the lower limb condition, at the time of his 19 September 2022 claim for disability support pension. However, the grant of disability support pension is required, pursuant to the legislation, to be assessed on corroboratory evidence of diagnosis and treatment, and further where appropriate, corroboratory evidence of impairment for the allocation of impairment ratings. I have no discretion to disregard the legislative requirements necessary to medically qualify for disability support pension. I acknowledge that the Applicant has since been granted disability support pension from 30 May 2024. No details of the basis of that claim and its acceptance were before me although, as already noted, I observe that new Impairment Tables commenced subsequent to the 19 September 2022 claims for claims made on or after 1 April 2023.

[1] Services Australia delivers social security payments and services and is overseen by the Department of Social Services. The Respondent is responsible for the overall management and administration of the Department of Social Security. Centrelink is the Government Agency that delivers social security payments and services as part of Services Australia and the Agency with whom pension and benefit applicants/ recipients interact. The Respondent may be variously referred to as Centrelink or the Respondent throughout these Reasons.

[2] For claims lodged on or after 1 April 2023 however, New Impairment Tables apply for claims lodged on or after 1 April 2023 the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023.

[3] Paragraph 5.2 of the Respondent's SFIC.

[4] Document T27, page 226 of Exhibit R1.

[5] Document T30, page 233 of Exhibit R1.

[6] Document T54, pages 312 to 313 of Exhibit R1.