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

Ahmad and Secretary, Department of Social Services (Social services second review) [2021] AATA 2547 (28 July 2021)
Division:GENERAL DIVISION
File Number:2020/4549
Re:Muzamil Ahmad
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:28 July 2021
Place:Brisbane

The decision under review is affirmed.
............[SGD]...............
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION
Member D Mitchell
28 July 2021
INTRODUCTION

On 20 February 2019, Mr Muzamil Ahmad (the Applicant) lodged a claim for the disability support pension (DSP).[1] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work to include: “Back Pain; Leg Pain; and Anxiety and Depression.”[2]
[1] Exhibit 1, T Documents, T23, pages 138-145, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents, T23, page 142, Claim for Disability Support Pension.
The Applicant’s claim was rejected on 11 April 2019,[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[3] Exhibit 1, T Documents, T28, pages 156-157, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision and on 15 April 2020 an Authorised Review Officer (ARO) affirmed the decision. The ARO found that the Applicant’s chronic back pain and mental health conditions were fully diagnosed however were not fully treated and fully stabilised.[4]
[4] Exhibit 1, T Documents, T44, pages 185-191, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD).[5] On 22 June 2020 the SSCSD affirmed the decision to refuse his claim for DSP.[6]
[5] Exhibit 1, T Documents, T45, pages 192-193, Request for Statement and Application for First Review.
[6] Exhibit 1, T Documents, T2, pages 3-8, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 17 July 2020.[7]
[7] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
On 22 July 2021, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[8]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[9] and
3.does the Applicant have a continuing inability to work?[10]
[8]     Section 94(1)(a) of the Act.
[9]     Section 94(1)(b) of the Act.
[10]    Section 94(1)(c) of the Act.
Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[11]
[11] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[12] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.
[12] Sections 6(3) and (4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must 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 planned in the next two years.[13]
[13] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[14]
(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.
[14]    Section 6(6) of the Determination.
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.[15]
[15] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[16] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[17]
[16] Section 6(2) of the Determination.
[17] Section 8(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[18]
[18] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[19]
[19] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[20]
[20] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 20 February 2019, being the date, the Applicant lodged his claim for DSP, and ends 13 weeks later on 22 May 2019. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[21] The Respondent considers the Applicant’s impairments for the purpose of the claim for DSP in question consist of chronic back pain[22] and mental health (being adjustment disorder with anxious and depressed mood)[23] conditions.
[21]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 7, paragraph 41.
[22]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-10, paragraphs 43-54.
[23]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 10-12, paragraphs 55-62.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and
2. if so, did the Applicant have a continuing inability to work?
MEDICAL EVIDENCE
On 3 January 2015, the Applicant was involved in a motor vehicle accident. He has developed neck pain and has had ongoing lower back pain and neck pain since the accident.[24] The Applicant engaged in civil litigation in relation to the accident and between the time of the accident until late 2016 underwent a number of different scans, tests and specialist reviews regarding lumbar and cervical spine issues, sciatica, ongoing chronic pain and depression and anxiety.[25]
[24] Exhibit 1, T Documents, T8, page 88, Report of Dr Laurence McEntee.
[25] Exhibit 1, T Documents, T6-T18, Various medical documents.
The Applicant has not worked since the date of the accident.
In a report dated 24 June 2015, Dr Laurence McEntee, orthopaedic surgeon provided the following analysis of the x-ray, cervical electromyography studies and MRI taken in February 2015:[26]
I reviewed the plain x-rays and an MRI scan of the cervical spine dated 20 February 2015 (copy report enclosed). There was no significant abnormality seen apart for some very minor age related disc bulging at C4-5, C5-6, and C6-7. There was no evidence of any disc protrusion or neural compression. EMG testing performed on 24 February 2015 of his upper limbs (copy report enclosed) was normal with no nerve damage seen.
[The Applicant’s] lower back, however, was a different picture altogether. His MRI scan dated 20 February 2015 (copy report enclosed) revealed a diffuse annular disc bulge at L4-5 with impingement of the traversing L5 nerve roots.
Again, at L5-S1, there was a diffuse angular disc bulge but also a left paracentral disc protrusion, which extended not only into the lateral recess, but also into the exit foramen with compression of the exiting left L5 nerve root.
An EMG examination dated 24 February 2015 (copy report enclosed) of his lower limbs confirmed bilateral chronic L5 radiculopathies worse on the left than the right.
[26] Exhibit 1, T Documents, T8, pages 89-90, Report of Dr Laurence McEntee.
Dr McEntee opined that:[27]
·The Applicant’s cervical spine would settle with the passage of time, noting no significant abnormalities in the imaging and no neural compression.
·After the CT guided left L5 nerve root block (report dated 8 April 2015) did not provide relief in relation to his lumbar spine that surgery may be appropriate.
·After a discogram which showed grade 3 annular disruption at both L4-5 and L5-S1, together with the imaging studies and EMG results, clinical history and examination finds and that the Applicant’s symptoms were deteriorating rather than improving that it was reasonable to consider surgical intervention.
·His condition would benefit from a total disc replacement at L4-5 and an anterior lumbar interbody fusion at L5-S1.
[27] Exhibit 1, T Documents, T8, pages 89-91, Report of Dr Laurence McEntee.
In a report dated 31 August 2015, Dr Paul Licina, spine surgeon provided that the examination revealed no objective neurological findings, but marked abnormal illness behaviour was evident.[28] Dr Licina strongly counselled against surgery, providing the following reasons:[29]
1.    There is no obvious clinical indication to operate apart from pain. The cause of the pain is not identified. There are no objective findings that would explain the crippling level of pain that he reports. In my opinion, the majority of the disability is functional and pain is due to non-organic factors. It is difficult to know whether this exaggerated pain response is conscious or unconscious but, nevertheless, it is subjective in nature.
2.    Imaging demonstrates degeneration, but it is not obviously pathological. In other words, the changes could be age-related and asymptomatic. It is well recognised that a significant percentage of people have degeneration to this level in their spine at his age without any symptoms. Therefore, there is no clear pathology that has been found that definitely requires surgery.
3.    The abnormalities on imaging are pre-existing. I could find no evidence of an acute disc prolapse, spinal facture or other evidence of trauma.
…..
[28]    Exhibit 1, T Documents, T13, pages 92-98, Report of Dr Paul Licina.
[29]    Exhibit 1, T Documents, T13, page 97, Report of Dr Paul Licina.
Dr Licina recommended that the Applicant undertake a coordinated pain management program involving a pain specialist, pain psychologist and then later an exercise physiologist.[30]
[30] Exhibit 1, T Documents, T13, page 98, Report of Dr Paul Licina.
In a report dated 5 November 2015,[31] Dr Graham Rice, psychiatrist in pain medicine opined that the Applicant needed to address his psychiatric co-morbidity of an adjustment disorder with anxious and depressed mood and that this should continue with his psychiatrist if he feels he is making progress or alternatively he should consult with a pain medicine psychiatrist to help him manage both his mood and pain. Dr Rice recommended that the Applicant attend a multidisciplinary pain programme focussed on restoration of function adopting chronic pain management strategies which will focus on what can be done despite pain rather than what cannot be done because of it.[32]
[31] Exhibit 1, T Documents, T14, pages 99-105, Report of Dr Graham Rice.
[32] Exhibit 1, T Documents, T14, page 104, Report of Dr Graham Rice.
On 17 November 2015, the Applicant saw Mr Drew Singleton, clinical coordinator, and consultant pain management physiotherapist, for a biopsychosocial assessment.[33] Mr Singleton opined that:[34]
Pain Behaviour is largely neuropathic in nature, and appears influenced by psychosocial factors specifically comorbidity of anxiety (post-traumatic in nature), Kinesiophobia and a poor concept of graded pacing and progressive functional restoration.
[33] Exhibit 1, T Documents, T15, pages 106-114, Report of Mr Drew Singleton.
[34] Exhibit 1, T Documents, T15, page 113, Report of Mr Drew Singleton.
Mr Singleton recommended that the Applicant was an appropriate candidate for an Integrated Group Pain Management Program to improve his understanding of persistent pain, and aid in development of physical, cognitive-behavioural and ergonomic skills to restore function, modify pain perception and facilitate upgrading of return to work and activities of daily living, followed by a 6-8 week supervised gym program and 6-8 weeks of hydrotherapy and injury counselling by a psychologist specialising in pain management.[35]
[35] Exhibit 1, T Documents, T15, pages 113-114, Report of Mr Drew Singleton.
On 24 February 2016, Dr Malcolm Foxtrot, psychiatrist, confirmed the diagnosis of adjustment disorder with mixed depression and anxious mood and features of post-traumatic stress.[36] Dr Foxtrot noted that the Applicant continued to attend his psychiatrist Dr Asha Sadasivan on a regular basis, takes medication when required, and was currently attending a pain management program, Core Pain Management, having been referred by Dr Rice.[37] Dr Foxtrot opined that the Applicant’s current medication and treatment were appropriate and that the Applicant requires ongoing treatment and supervision and specialist psychiatric treatment.[38]
[36]    Exhibit 1, T Documents, T16, page 123, Report of Dr Malcolm Foxtrot.
[37]    Exhibit 1, T Documents, T16, page 119, Report of Dr Malcolm Foxtrot.
[38]    Exhibit 1, T Documents, T16, page 122, Report of Dr Malcolm Foxtrot.
On 6 March 2019, the Applicant’s treating general practitioner, Dr Suhana Raju, referred the Applicant to Dr Asha Sadasivan, psychiatrist for ongoing management for depression/anxiety/PTSD.[39]
[39] Exhibit 1, T Documents, T25, pages 147-148, Letter authored by Dr Raju including Patient Health Summary.
On 13 June 2019, Dr Sadasivan provided a letter stating that the Applicant had been a patient since 2015.[40]
[40] Exhibit 1, T Documents, T32, page 161, Letter authored by Dr Sadasivan.
In a Job Capacity Assessment (JCA) Report dated 12 July 2019,[41] the Assessor recorded that the Applicant reported that he took part in a pain management program over a 3 month period including hydrotherapy and that treatment took place between 2015-2017 in combination with insurance supported provision of treatment. The Assessor noted that there did not appear to have been treatment regarding the Applicant’s abnormal illness behaviours and improvements in his mental health capacity will most likely impact on improvements in his spinal condition and functional capacity.[42]
[41] Exhibit 1, T Documents, T20, pages 129-135, Job Capacity Report.
[42] Exhibit 1, T Documents, T20, page 131, Job Capacity Report.
In early 2020, the Applicant had an exacerbation of his chronic back pain[43] and was referred by Dr Raju for physiotherapy[44] and a CT guided injection at L4-5.[45]
[43]    Exhibit 1, T Documents, T36, page 165, Medical Certificate by Dr Raju.
[44]    Exhibit 1, T Documents, T37, pages 166-170, GP Management plan & Team Care Arrangement.
[45]    Exhibit 1, T Documents, T41, page 175, CT Lumbar Spine referral from Dr Raju.
The Applicant presented to the Emergency Department at the Gold Coast Hospital regarding his chronic back pain on 6 March 2020[46] and 2 April 2020.[47] In the discharge letter dated 6 March 2020, Dr Scott Robertson noted that the Applicant had recently had an MRI which showed nerve root compression of L5 and S1 and has seen a neurosurgeon for this. Dr Robertson advised that the Applicant should recontact his neurosurgeon to assess if there is any possibility of surgery.[48]
[46]    Exhibit 1, T Documents, T40, page 174, Report of Dr Scott Robertson.
[47]    Exhibit 1, T Documents, T42, page 176, Report of Dr Blayney.
[48]    Exhibit 1, T Documents, T40, page 174, Report of Dr Scott Robertson.

On 15 April 2020, the ARO provided in their decision that the Applicant had advised that he had been consulting Dr Sadasivan since his accident in 2015 and up to the end of 2019 he was contacting her every 3-4 months for prescriptions. Further to that, from the end of 2019 he had started to consult Dr Sadasivan every 4-6 weeks for psychological counselling.[49]
[49] Exhibit 1, T Documents, T44, page 188, Authorised Review Officer Decision and Notes.
On 27 May 2020 the SSCSD contacted the Applicant’s treating general practitioner, Dr Raju and treating psychiatrist Dr Sadasivan.[50] The SSCSD provided the following overview of the opinions provided:[51]
20.The tribunal contacted Mr Ahmad’s treating GP (Dr Suhana Raju) and his treating psychiatrist (Dr Asha Sadasivan) to obtain further evidence regarding Mr Ahmad’s history of treatment for his back pain. Dr Raju advised that, in his opinion, Mr Ahmad had undertaken all reasonable treatment for his pain, including appropriate pain management. However, Dr Sadasivan told the tribunal that she believed that scans were consistent with nerve impingement and that she had strongly encouraged Mr Ahmad to obtain a surgical opinion, even if it meant borrowing sufficient money for a private consultation.
……
26.When the tribunal spoke with Dr Sadasivan, she advised that she had treated Mr Ahmad until 2016 but that he had ceased attending until 2019, when he re-presented. The tribunal notes that the hearing papers contain a letter of referral from Dr Raju to Dr Sadasivan, dated 6 March 2019. Dr Sadasivan said that, since resuming Mr Ahmad’s treatment, she had changed his antidepressant medication to Effexor and that he had been taking this on a regular basis for most of this year. She said that he had improved in response to Effexor, in that he was sleeping better and thinking more clearly. However, she was of the view that he would continue to be affected by depression unless a surgical intervention could provide him with sustained pain relief.
[50] Exhibit 1, T Documents, T2, pages 3-8, Decision of SSCSD.
[51] Exhibit 1, T Documents, T2, page 7, Decision of SSCSD.
APPLICANT’S EVIDENCE AT HEARING
At Hearing, the Applicant gave evidence under affirmation and told the Tribunal that:
·He had a motor vehicle accident in 2015 which resulted in a back and mental health condition.
·His compensation litigation reached settlement in 2016/2017.
·He had been sent to many specialists, the first said he needed surgeries however three others said he should not as he would be disabled for a long time.
·His general practitioner also advised him not to have surgery at the time and that he should not have it until he is between 45 and 50 years of age.
·He attended a pain management program for 3 months in Southport, he was not sure of the date but said it was before his litigation settled.
·When asked what the outcome and follow up was from the pain management clinic that:
oIt had taught him how to control and manage his pain, they gave him books to help with an exercise program, showed him how to get up (as before he had a lot of trouble getting out of bed) and encouraged him to go walking.
oThere was no ongoing treatment outside of the things they taught him and the books they gave him.
oHe decreased his pain medication.
oHe was not referred back to a specialist, psychologist or psychiatrist.
oHe just saw his general practitioner when he needed to.
·That prior to the pain management clinic he had seen a chiropractor and physiotherapist, had steroid injections and had needling and cupping treatment.
·In early 2020 his pain got worse again and his general practitioner Dr Raju helped him manage the pain with physio, medication and a steroid injection. Dr Raju also referred him to a neurosurgeon to get advice on how to manage and treat his pain going forward.
·He had not seen the neurosurgeon. He had two appointments booked but missed them.
·During the Relevant Period he was:
oAble to perform overhead activities as he could look after himself and helped his wife with the washing.
oAble to turn his head or bend his neck without moving his trunk.
oAble to bend forward to pick up his dinner plate from the kitchen table and take it to the kitchen.
oAble to sit down for 10 minutes but then would need to lie down.
oAble to access items overhead, it was hard, but he could.
oWhen he had pain, he had difficulty moving his head to look over his left shoulder, but his right side was ok.
oCould bend forward to pick up his coffee cup from the coffee table.
oHe needed assistance from his wife to get up out of a chair.
·In 2020 when his pain got worse and he went to hospital he was in bed for 25 days and did not walk as his muscles were hard and he was stuck in bed. Then he went to the physio when he needed to, to release the muscles and had a steroid injection.
·He only ever saw Dr Sadasivan as his treating psychiatrist. He had not seen a psychologist.
·He saw Dr Sadasivan for a year over 2015/2016 however after that time as it was in the private sector, he only continued to get scripts from her. He did not have any further one on one therapy, he just took his medication.
·He saw Dr Sadasivan again in 2019 and she changed his medication which has made him feel a lot better, he now sleeps better and interacts better socially. It took 3 months to change his medication.
·Before his medication was changed it made him sleepy and wake up dizzy so his selfcare was ok, but socially he was not good, he just mainly slept. His relationships with his wife, family and friends remained good.
On cross-examination the Applicant:
·When it was noted that there was little evidence about his spine condition between 2016 and 2019, and asked if that was because it had gotten better, or he was better able to manage his pain and then it got worse again, said “Yes, a lot.”
·Said that in 2019 he could sit down for 20-25 minutes and would then need to lie down for 2-3 hours.
·Said that he travelled overseas to see his mother in late 2019 and that he had lots of difficulties sitting on the plane, it was the worst trip he has ever had.
·When asked, how does he think his chronic pain and mental health affect him, for example with his concentration and sleep, which condition was the cause of the difficulties, said it was from nerve pain and he did not know which condition caused it.
·Said his mental health is worse when his pain was worse.
RESPONDENT’S CONTENTIONS
The Respondent contended that the Applicant’s chronic back pain condition was fully diagnosed at the Relevant Period however was not fully treated and fully stabilised[52] for the following reasons:[53]
[52]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-10, paragraphs 43-51.
[53]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 9-10, paragraphs 49-51.
49.      …. the Applicant had not undertaken ‘reasonable treatment’ including engaging in a coordinated pain management program. Various specialists including Dr Licina (spinal surgeon), Dr Rice (Psychiatrist in Pain Medicine) and Drew Singleton (Clinical Coordinator and Consultant Pain Management Physiotherapist) all recommended engagement in such an approach. While the Applicant has reported attending a pain management program (presumably at Core Pain Management) in late 2015, other than an initial consultation for the purposes of the compensation claim, there is no supporting evidence of the Applicant’s attendance in such a program (including dates attended, engagement in the program, recommendations following engagement and revised prognosis).
50.      In the absence of reasonable treatment in a pain management program, there is no evidence that undertaking such treatment would not result in significant functional improvement within the next two years, but in fact to the contrary there is evidence from Drew Singleton that “an integrated, biopsychosocial approach with specialist recommendation would seem prudent to effectively accelerate recovery and functional upgrading (T15/113). There is also no evidence there was a compelling reason not to undertake a pain management program or coordinated approach.
51.      Additionally, the Secretary notes that there continues to be a lack of medical consensus as to the cause of the Applicant’s chronic pain. In addition to Dr McEntee’s 2015 recommendations for a TDR to L4/L5 and ALIF to L5/S1, Dr Raju notes nerve entrapment in medical certificates in 2019-2020 (for example see T33/162), and Dr Sadasivan advised the AAT1 that the Applicant should seek further opinion on surgical options. As noted by the AAT1, until a consensus is reached as to the true cause of the Applicant’s chronic pain, and therefore the best treatment options, the condition cannot be said to be fully treated and stabilised.
43.The Respondent contended that the Applicant’s mental health condition was fully diagnosed at the Relevant Period however was not fully treated and fully stabilised[54] relying on the following:[55]
a.In 2015 Dr Rice recommended a multidisciplinary pain program to improve function in relation to both mood and pain (T14/100). As noted above, there is very limited evidence relating to the Applicant’s attendance to a pain management program – other than consultation and opinion reports for the compensation claim, and oral evidence from the Applicant that he attended a program. There is no evidence to verify the frequency of any attendance, the Applicant’s engagement in a program, any recommendations following engagement and any revised opinions as to prognosis.
b.Dr Foxtrot opined is his report for the Court in 2015 that the Applicant’s current medication is appropriate and he requires ongoing psychiatric treatment (T16/122)
c.Dr Raju the Applicant’s treating GP referred the Applicant to Psychiatrist Dr Sadasivan, on 6 March 2019 (T25/147). Dr Sadasivan has provided a report of 13 June 2019 indicating the Applicant has been a patient since 2015 (T32/161). There is no detail of the frequency of consultations and treatment undertaken since 2015 other than to indicate the Applicant had been treated with medications including Cymbalta, Lexapro, Seroquel, Mirtazapine and Risperidone.
d.In the Job Capacity Assessment Report of 8 April 2020, it was noted that while diagnosis is confirmed by a psychiatrist and the Applicant attended a Psychiatrist for ongoing treatment in the qualification period, there is no evidence to confirm engagement in psychological intervention such as Cognitive Behaviour Therapy, which is considered reasonable treatment for depression and may improve the condition (T43/178).
e.The ARO noted the Applicant had advised he was attending Dr Sadasivan every 3 to 4 months for prescriptions since the MVA (T44/187). The Applicant reported that since the end of 2019, he had commenced psychological counselling with Dr Sadasivan every 4-6 weeks (T44/188). The ARO noted this engagement in psychological counselling (while the detail not verified by Dr Sadasivan), was not commenced until outside of the qualification period.
f. The AAT1 spoke with Dr Sadasivan who confirmed that she had seen the Applicant from 2015 to 2016 (T2/7). The Applicant then re-presented in 2019 following a referral from the GP in March 2019, and Dr Sadasivan changed his antidepressant medication to Effexor, which resulted in some improvements to concentration and sleeping (T2/7). The AAT1 concluded that the Applicant’s condition was not stabilised until after the qualification period and therefore the condition could not be considered to be fully stabilised. Furthermore, the AAT noted that as Dr Sadasivan opined that the Applicant’s depression was secondary to his back pain, so long as a neurosurgical opinion is required to determine whether surgery could alleviate his back pain, his depression cannot be considered as being fully treated and fully stabilised (T2/8).
[54]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 10-11, paragraphs 55-57.
[55]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 11, paragraph 57.
CONSIDERATION
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
Based on the medical evidence before the Tribunal there is no doubt that the Applicant’s chronic back pain and mental health (being adjustment disorder with anxious and depressed mood) conditions were fully diagnosed at the Relevant Period. This point is not in contention.[56] The issue arises as to whether these conditions were fully treated and fully stabilised during the Relevant Period.
[56] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 7, paragraph 43 and page 10, paragraph 55.
The Tribunal accepts the Applicant’s evidence that he attended the recommended pain management clinic sometime in 2015/2016. Often once a pain management clinic has been completed, a pain condition may be considered fully treated and fully stabilised. However, in this case there is no corroborating medical evidence before the Tribunal of what the outcomes and next steps were for the Application at the completion of the clinic.
The Applicant told the Tribunal that he was not referred for further treatment or specialist review at the conclusion of the clinic and that he did not reengage with Dr Sadasivan after 2016 until sometime in 2019. No further requirement for psychological treatment is at odds with the opinions provided by Dr Rice, Dr Foxtrot and Mr Singleton. Both Dr Rice and Dr Foxtrot recommended that in addition to the pain management clinic the Applicant should continue with specialist psychiatric treatment. Mr Singleton also recommended that in addition to attending a pain management clinic that the Applicant receive injury counselling by a psychologist specialising in pain management.
The Tribunal notes that the Applicant was referred to Dr Sadasivan on 6 March 2019, and would have therefore seen her sometime after that date. Further the Applicant told the ARO that he commenced having appointments with Dr Sadasivan every 4-6 weeks from the end of 2019 which is well outside the Relevant Period. The Applicant told the Tribunal at Hearing that Dr Sadasivan changed his medication and that the change took 3 months and resulted in significant improvements in his sleep and social engagement. Given that the Applicant was referred to see Dr Sadasivan during the Relevant Period it is clear that treatment was continuing beyond the Relevant Period and that such treatment was expected to result in functional improvement for the Applicant.
The medical evidence before the Tribunal which was confirmed by the Applicant is that there is an interconnection between his chronic back pain and mental health conditions and as such in the present circumstances the recommended psychological treatment crosses between both conditions.
Further, the evidence before the Tribunal also reveals a disagreement among specialists in relation to whether the Applicant should engage in surgery to relieve his nerve root compression of L5/S1. In June 2015, Dr McEntee recommended that the Applicant undergo surgery, which in November 2015, Dr Licina counselled against, the Applicant did not have the surgery. The Applicant said at Hearing that his general practitioner Dr Raju also told him not to have surgery, but the Tribunal notes she nevertheless referred him to a neurosurgeon in late 2019 or early 2020 for review. Then in 2020, Dr Robertson advised that the Applicant should reengage with his neurosurgeon to assess if there is any possibility of surgery and Dr Sadasivan told the SSCSD that she strongly encouraged the Applicant to obtain a surgical opinion.
In the absence of the resolution of the issue as to whether the Applicant would benefit from surgery and corroborating evidence that further psychological treatment was not required as a result of the Applicant completing the pain management clinic, the Tribunal cannot be satisfied that the Applicant had engaged in all reasonable treatment that may have been likely to result in a significant functional improvement in his conditions within the two years following the Relevant Period.
As such based on the evidence set out above, contentions made by the Respondent and evidence provided by the Applicant, the Tribunal is satisfied that the Applicant’s chronic back pain and mental health conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period.
Consequently, the Applicant’s chronic back pain and mental health conditions are not considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points under the Impairment Tables for these conditions.
Continuing Inability to Work
As the Tribunal has found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
The Tribunal finds that the Applicant’s chronic back pain and mental health conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points for these conditions.
The Tribunal finds that for the purposes of section 94(1)(b) the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..........[SGD]............
Associate
Dated: 28 July 2021

Date of Hearing: 22 July 2021

Applicant: By phone

Solicitors for the Respondent: Ms Donna Smith
Services Australia

[2021] AATA 2547

28 July 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of Hearing:	22 July 2021
Applicant:	By phone
Solicitors for the Respondent:	Ms Donna Smith Services Australia