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

Beattie and Secretary, Department of Social Services (Social services second review) [2018] AATA 5158 (21 September 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1105
Re:Robyn Beattie
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:21 September 2018
Place:Perth

The decision under review is affirmed.
............[sgd]............................................................
Member C Edwardes
CATCHWORDS
Social Security – disability support pension – medical conditions – neck and back pain – migraine – fibromyalgia – palpitations – tumour in left shoulder – mental health – qualification period – impairment tables – continuing inability to work rating – participation in program of support – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)(a)
Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(b), s 94(1)(c)(i), s 94(2), s 94(3B), s 94(3C)
Social Security Administration Act 1999 (Cth) – s 179, Sch 2 Cl 4 (1)
CASES
Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Ulukut v Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5), s 6(7),
s 7, s 8, s 8(1), s 9, s 10, s 11, s 11(1)(c)
Social Security (Active Participation for Disability Support Pension) Determination 2014 – s 5(1)(a), s 7(1), s 7(2)
The Guide to Social Security Law
REASONS FOR DECISION
Member C Edwardes
21 September 2018
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 20 February 2018. The AAT1 affirmed the decision of the Department of Human Services to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 17 October 2017 (T2 5, R1).
The Tribunal accepts the Qualification Period for this claim is from the 17 October 2017 to 16 January 2018.
INTRODUCTION
On 17 October 2017, the Applicant lodged a claim for Disability Support Pension involving conditions of “rare bone tumor, slow chrondasacoma [sic] shoulder, torn tendons shoulder, cronic [sic] fib [sic], degenerative bone disease neck – shoulder – hands [sic], cronic [sic] osteo arthritis, severe depression, severe anxiety – pani [sic] attacks, suicide intentions, personality disorder, separation disorder” (T44 225)(R1). Based on the information that is made available to the Tribunal, the Tribunal is able to consider the following conditions as: neck and back pain, migraine, fibromyalgia, tumour in region of left shoulder, and mental health problems.
The claim was rejected by an officer of the Centrelink and the Applicant was advised of this rejection by letter dated 4 December 2017 (T47 262, R1). The reason for rejection of the application was on the basis that the Applicant had “failed to attain an impairment rating of 20 points or more” (T47 262, R1).
The Applicant requested review of the decision by the officer of Centrelink. The review was undertaken by an Authorised Review Officer (ARO). On 14 December 2017 the Applicant received notification that her requested review was unsuccessful. (T50 269-280)(R1)
The ARO advised the Applicant that they had made a number of findings:
Your conditions of migraine, palpitations, spinal disorder, severe bilateral osteoarthritis of the thumbs, mental health disorders and shoulder disorder are not accepted as being permanent as there is insufficient medical evidence to support that your conditions had been fully treated and stabilised within 13 week of you lodging this claim.
Your conditions of mental health disorders, chronic pain syndrome and fibromyalgia are not accepted as being permanent as there is insufficient medical evidence to support that your conditions had been fully treated and stabilised within 13 week of you lodging this claim.
You do not have an impairment rating of 20 points or more.
You do not have a continuing inability to work 15 hours per week or more because of your impairment.
You have not met the Program of Support requirement. (T50 270)(R1)
As a result of the decision of the ARO, the Applicant lodged an application with AAT1 on 3 January 2018 (T2 5)(R1).
In a decision dated 20 February 2018, AAT1 determined that the Applicant had generated an impairment rating of 0 points under the Impairment Tables (T2 5-12) (R1).
AAT1 made the following findings in relation to the Applicant’s impairments:
Condition 1 – neck and back pain
36. The tribunal noted that the only reports relating to problems with neck, back and arthritic pains date from the 12 or 13 months preceding the DSP claim lodged on 17 October 2017. Medical reports over the preceding nine years make no mention of these problems. In light of the recent commencement of treatment from Dr Makin the tribunal determined that these problems cannot be considered fully treated and fully stabilised. They generate no impairment points”.
Condition 2 – migraine
39. The tribunal noted that there is some uncertainty about this condition and determined that there was insufficient medical evidence to justify an impairment rating.
Condition 3 – fibromyalgia
41. The tribunal determined that, at the time of the claim, the condition of fibromyalgia was not fully treated or fully stabilised. It generates no impairment points.
Condition 4 - palpitations
43. The tribunal determined that, at the time of the claim, the condition of palpitations was not fully diagnosed, not fully treated or fully stabilised. It generates no impairment points.
Condition 5 – tumour in region of left shoulder
45. The tribunal noted that the problem of the bone tumour was only identified shortly before the DSP claim was lodged. At the time of the claim this problem was not fully diagnosed, fully treated or fully stabilised. It generates no impairment points.
Condition 6 – mental health problems
53. The tribunal noted the report from DSP medical eligibility assessment dated 7 November 2017. The assessor had been in contact with Dr Jones who advised that Ms Beattie refuses to engage in psychological counselling.
54. The tribunal determined that, at the time of the claim, Ms Beattie’s mental health problems had been diagnosed by an appropriately trained health professional. However these conditions are not fully treated and stabilised, and generate no impairment points.
The Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the AAT1 decision dated 7 March 2018 (T1 1-3,R1).
The Applicant lodged this claim for review on the basis that she believed that she was sufficiently impaired to qualify for DSP. The Application for review stated:(T1 2-3)(R1)
…Dr jones has stated diagnosed. Treated. Stabilized. On mental . Hands neck back. Fibromyalgia which is life long condition. Im on medication to help with pain. These conditions are not getting better but are an increasing condition. [sic]
As stated in one paragraph. That dr jones stated that i refuse mental health councling is untrue. Dr jones has tried getting me in for councling as im not mentally in good state… [sic]Nothing can be done for my neck. Nothing can be done for my back. Nothing can be done for my hands dr Faulkner has signed of of ever operating. Why under rheumatologist. For management. With fibromyalgia. . Chronic osteoarthritis. These have all been stated by my dr. As diagnosed . Treated .. stabilized . Dosnt mean im free from pain. Depression . [sic]
Anxiety. . Suicidal intentions. Plus rest i suffer . My inability to work is major factor in my life. [sic]
As i can barley function in a normal life. [sic]
Now my hope of financial disability payments. To help with day to day living. Im left with poverty. I cant afford to live basically let alone afford go appts medication. [sic]
U have scans proving degree of conditions . That any dr can see isn't fixable… [sic]
So how still with all these illnesses. U cant give on table a rate. Its tottally wrong. When in front of u are the proof. 56 yrs old. Who will employ me with mental. And health illnesses i suffer. Some days i cant get out of bed. Weeks not leave house. [sic]
Racked with pain. Constant migraines and u cant rate… [sic]
But after trying to work. Its accelerated the neck back hand conditions. From heavy lifting ect. And during working i had to take days weeks of. Then the bulling sexual harassment just tipped my mental condition overboard… [sic]
…So please help me. Last letter last yr. And speaking over phone. Told i had enough to get disability. To reapply new claim . And aat. Will support me. [sic]
Iv done this. And declined. [sic]
I am at not good place. And see no future or support. [sic]
I have seedisability job network . And they again have stated im unemployable. No one will hire me . Though i still do whats asked. As cant drive its by phone. [sic]
The Tribunal has jurisdiction to review this matter pursuant to s179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and Administration Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
1A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) person has a continuing inability to work;
Assessing impairments and assigning an impairment rating
The Impairment Tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables”.
Section 94(1)(b) of the Act requires the Tribunal to decide whether the Applicant’s impairments are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Sections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Section 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using Impairment Tables and how to assign impairment ratings. In particular, section 11(1)(c) of the Determination states that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.”
Continuing inability to work
As set out above in s94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to s 94(2) of the Act:
A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
in all cases – either:
the impairment is of itself sufficient to prevent the person from undertaking 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 program of support within the next 2 years.
(Emphasis added).
‘Severe impairment’ is defined in s94(3B) of the Act:
A person’s impairment is 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. (Original emphasis.)
Section 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister.
Relevantly, s 7(1) and s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
Qualification Period
Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. Schedule 2 clause 4(1) of the Administration Act legislates fora 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP within the 13 week period, commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink and concluding 13 weeks after that day. In the present case, the 13 week period is from the 17 October 2017 to 16 January 2018 inclusive, and is known as the “Qualification Period”.
For a claim to be successful, a person must be qualified for DSP during the Qualification Period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) [2007] FCA 404 at [1].
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
ISSUES
The key issue for the Tribunal to determine is whether the Applicant was qualified for DSP during the Qualification Period for the purposes of s 94(1) of the Act.
This requires consideration of whether at the time of the Qualification Period:
(a)the Applicant had any physical, intellectual or psychiatric impairment;
(b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c)if so, whether the Applicant had a “continuing inability to work” as defined in section 94(2) of the Act.
EVIDENCE BEFORE THE TRIBUNAL
The matter was heard in Perth on 5 September 2018. The Applicant gave evidence by telephone and the Respondent was represented by Mr Bishop from Mills Oakley, who appeared in person at the hearing.
The Tribunal would like to thank all parties for the assistance they provided during the hearing.
The Tribunal had the following evidence before it:
a)Applicant’s Submission dated 6 April 2018 (Exhibit A1);
b)Applicant’s Submission dated 20 July 2018 (Exhibit A2);
c)the Applicant’s Mental Health Plan made by Dr Kenneth Jones, dated 20 July 2018 (Exhibit A3);
d)a report by Joondalup Community Mental Health to Dr Kenneth Jones, dated 27 June 2018 (Exhibit A4);
e)a report by Mr Paul Khoo, Orthopaedic Surgeon, to Dr Kenneth Jones, dated 1 February 2018 (Exhibit A5);
f)a report by Department of Rheumatology to Dr Travis Falconer, Consultant Orthopaedic Surgeon, dated 6 October 2018 (Exhibit A6);
g)the Applicant’s Liver function Test, dated 11 August 2017 (Exhibit A7);
h)the Applicant’s Calcium Studies Test, dated 11 August 2017 (Exhibit A8);
i)the Applicant’s Reactive Protein Test, dated 11 August 2017 (Exhibit A9);
j)the Applicant’s Haematology Test, dated 11 August 2017 (Exhibit A10);
k)the Applicant’s Hormones Test, dated 11 August 2017 (Exhibit A11);
l)a report by Dr Rory Porteous, SKG Radiology, dated 31 May 2017 (Exhibit A12);
m)the Section 37 Documents, including T1 to T56 (Exhibit R1);
n)the Secretary’s Statement of Facts, Issues and Contentions (SOFIC) dated 6 August 2018 (Exhibit R2);
o)a letter from Dr Kenneth Jones to the Department of Human Services dated 12 December 2017 (Exhibit R3);
p)the Respondent’s Hearing Certificate (Exhibit R4); and
q)Information about participation in a Program of Support (POS), issue date of 6 August 2018 (Exhibit R5)
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Secretary made the following contentions in respect to the medical conditions of the Applicant:
Neck and back pain
30. In accordance with the AAT1 decision, the Secretary contends that these conditions were not fully treated and stabilised during the qualification period.
31. In a letter dated 12 December 2017 (T49/265), the Applicant’s GP, Dr Kenneth Jones, stated that the Applicant suffered from cervical spondylosis and lumbar spondylosis. Dr Jones stated that therapy comprises of oral analgesia, oral anti-inflammatory medication, physical therapy and rest, and states that surgery is not a realistic option. Dr Jones states that these conditions will not resolve or    improve within the next two years. The same is stated in various letters of Dr Jones, including on 30 April 2017 (T30/183) and 11 June 2017 (T31/185).
32. On 23 November 2016, a referral for physiotherapy was made for the Applicant (T24/175).
33. In a report dated 5 October 2017, Consultant Rheumatologist Dr Krista Makin stated in relation to this condition that the Applicant had widespread degenerative change, both facet joint and discongenic (T45/254). In this report, Dr Makin stated:
I have given her some information on fibromyalgia and have suggested that we refer her to the hand therapists for splinting as well as the physiotherapist for work on her neck, lumbar spine and a referral to hydrotherapy for her fibromyalgia.”
34. Dr Makin stated in this letter that she would see the Applicant for review in three months. There is no further evidence available to show that the Applicant has engaged with the recommended physiotherapy treatment.
35. In the Assessment Services Recommendation for Disability Support Pension medical eligibility (Assessment Services Recommendation) dated 7 November 2017, the assessor spoke to Dr Jones, who is recorded in this report as advising that the Applicant has been reviewed by a pain management specialist for her neck and back and has undergone facet joint injections, but has not participated in much physiotherapy as has used up her EPC allowance (T46/259).
36. The AAT1 found that in light of the above, this condition could not be considered to be fully treated and stabilised, noting that the only reports relating to neck, back and arthritic pains were from the 12 or 13 months preceding the Applicant’s DSP claim being lodged (T2/9).
Migraine
38. The Secretary contends that this condition is not fully diagnosed, treated or stabilised during the qualification period.
39. In letters dated 30 April 2017 (T30/182) and 11 June 2017 (T31/184), GP Dr Kenneth Jones states the following regarding this condition:
“Severe intractable migraine headaches. Condition is severe and chronic. Patient requires various oral analgesics and complex Triptan medication. This condition is stable and will not resolve.”
40 In the Job Capacity Assessment (JCA) of 25 July 2017, while noting Dr Jones’ comments above, the assessor also noted that there was no evidence to confirm whether the Applicant had any consultation with a specialist of any kind, despite having had an earlier referral to access neurological review which was not followed up (T33/191-192).
41 In the Assessment Services Recommendation of 7 November 2017 (T46/258), Dr Jones reported that the Applicant had been referred to Charles Gardner neurology, however was still waiting on an appointment.
42. The Applicant gave evidence at the AAT1 hearing that she had tried numerous treatments, the only one of which had helped being Relpax. She stated she had been referred to the neurology clinic at SCGH [Sir Charles Gardiner Hospital] but was told that headaches were due to neck problems (T2/9).
Fibromyalgia (and associated problems)
44. The Secretary contends that these conditions were not fully diagnosed, treated or stabilised during the qualification period.
45. The Applicant informed the Tribunal at the AAT1 hearing that she was first told she had fibromyalgia when she saw Dr Makin in October 2017, shortly after lodging this claim for DSP (T2/9).
46. A letter from Dr Jones dated 12 December 2017 (T49/265) states the following:
“I add to the clinical conditions list Fibromyalgia and Chronic Fatigue Syndrome. This addition is made on instruction by the applicant, allegedly following advice from Centrelink.”
47. Dr Jones continues to state, under the heading “Fibromyalgia and Chronic Fatigue Syndrome (T49/266):
“The patient suffers from the following symptoms which are consistent with the diagnosis:
•         Joint and muscle pain
•         Fatigue and malaise
•         Inability to exercise
•         Confusion, forgetfulness and lack of concentration
•         Excess sleepiness and sleep disturbance
•         Anxiety and apprehension
•         Headache
•         Sensitivity to pain”
48. Dr Jones states that this condition will not resolve. The Secretary, however, contends that this condition cannot be considered fully diagnosed. Dr Jones appears to indicate that the diagnosis of this relatively new condition has not been confirmed, and in any event, further treatment is available.
49. In her report of 5 October 2017, Dr Makin states the following:
“Overall Robyn is most likely suffering from a chronic pain syndrome encompassing widespread osteoarthritis with superimposed fibromyalgia.”
50. Dr Makin recommends splinting in relation to osteoarthritis in her hands, and a referral for hydrotherapy for fibromyalgia. In this consultation, Dr Makin also prescribed a trial of Endep at night to assist in improving sleep. As noted above in paragraph 34, Dr Makin was to review the Applicant three months after this consultation (T45/254-255).
51 During the AAT1 hearing, the Applicant told the Tribunal that the Endep tablets have improved her sleep (T2/10).
Palpitations
53.      The Secretary considers this condition not to be fully diagnosed, treated or stabilised during the qualification period.
54. In his letter of 11 June 2017, Dr Jones states that the Applicant suffers from ongoing palpitations of unknown etiology, stating that investigation continues and this may be a physiological shift symptom of anxiety (T31/185). Dr Jones letter of 12 December 2017 states the same (T49/266).
55 In Dr Jones’ correspondence of 18 June 2017, he states that all conditions of the Applicant are chronic except palpitations (T32/187).
56. During the AAT1 hearing, the Applicant reported that she was tested with a 24 hour monitor regarding this condition. The report said all was fine, though the Applicant believes that the machine was not fully connected. After a longer than usual episode, she was admitted to emergency at Joondalup Hospital. Under observation, an abnormality was found, and it was suggested that her GP refer her to a cardiologist. This appointment was booked for 13 March 2018 (T2/10).
57. The Secretary contends that this condition cannot be considered fully diagnosed, treated or stabilised as it is yet to be determined whether the condition arises from a heart condition, or whether it is a result of the Applicant’s mental health situation, noting that investigations have continued following the qualification period.
Tumour in region of left shoulder
58. In accordance with the AAT1 decision, the Secretary contends that this condition was not fully treated or stabilised during the qualification period.
59. In a letter dated 2 October 2017, GP Dr Marian Farag states that:
“Investigation of a likely chondrosarcoma continues. Surgery and other therapy will commence soon.”
60. In the Assessment Services Recommendation of 7 November 2017, Dr Jones confirmed the diagnosis of chondrosarcoma in the left shoulder. Dr Jones confirmed that the Applicant had been seen by the hospital ortho-oncology clinic, and they had not yet decided on treatment. Dr Jones advised that the tumour is believed to be benign, however, a biopsy may be completed. Given the large size of the tumour, doctors are currently unsure whether removal is feasible, due to minimal remaining bone, and that a shoulder replacement may be required in the future.
61. Dr Jones further advised that at this point, treatment was uncertain and he was awaiting advice from the ortho-oncology clinic (T46/260).
62. During the AAT1 hearing, the Applicant advised that she was due to have an operation to fix her damage tendons and muscles in her shoulder. The tumour is well-contained, and the Applicant saw a bone oncologist who said it was very rare and should be left alone. No chemotherapy, radiology or biopsy was recommended. The Tribunal noted that this condition was only identified shortly before this DSP claim was lodged.
Mental health problems
64. In accordance with the AAT1 decision, the Secretary accepts that this condition was fully diagnosed, but not fully treated and stabilised during the qualification period.
65. The Secretary notes that the Applicant’s mental health conditions are long-standing. A psychiatric discharge summary dated 13 March 2005 listed major depression, borderline personality disorder and prescribed benzodiazepine abuse as the Applicant’s conditions (T5/88).
66. A letter from Psychiatric Registrar Dr Huu Duy Tran states that the Applicant was a patient of Clarkson Community Mental Health and was receiving ongoing treatment for posttraumatic stress disorder. This letter also noted the Applicant’s history of major depressive disorder, dysthymic disorder and borderline personality disorder (T10/116).
67. In the various letters of Dr Jones, depression with anxiety is listed as one of the Applicant’s conditions (T19/150; T30/182; T31/185; T49/266).
68. A letter from Clinical Psychologist Registrar Antonietta Faulkner dated 11 September 2016 states:
“I have seen Ms Beattie for counselling on three occasions. She is presenting with symptoms suggesting Adjustment Disorder with depressed mood and anxiety as per criteria outlined in Diagnostic and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5).”
69. In the AAT2 decision dated 3 November 2017 (T39/210-218), regarding the cancellation of the Applicant’s DSP payment of which she was previously in receipt, the Tribunal considered only the Applicant’s mental health problems were fully treated and stabilised. The Tribunal determined that the appropriate rating for this condition was 10 points under Table 5 of the Impairment Tables. The hearing for this matter was held on 26 September 2017.
70. The Secretary contends that in light of evidence following this decision, this condition cannot be considered fully treated and stabilised.
71. The Assessment Services Recommendation dated 7 November 2017 (T46/259) included information from Dr Jones in relation to this condition:
“Dr Jones advised that Ms Beattie’s main medical condition is her mood, and that she is depressed and anxious. He advised that she has not been reviewed by a psychiatrist in recent years and refused to engage with psychological counselling.”
72. The Secretary notes that there is no further information or compelling reason available on why psychological counselling was refused by the Applicant at this time.3
73. The AAT1 noted the report of Psychiatrist Dr Fredrick Ng dated 22 September 2016 (T22/153), concluding that the Applicant had major depressive disorder with generalised anxiety and panic attacks. Dr Ng considered that the Applicant should continue with her current medication for at least the next one to five years, and would benefit from individual psychotherapy, needing at least twelve sessions at one to two week intervals (T2/11-12).
74. The Tribunal agreed that intense psychotherapy would be helpful for the Applicant. The Applicant gave evidence that her GP was trying to arrange this at the time of the AAT1 hearing on 20 February 2018 (T2/12).
75. A letter from Consultant Psychiatrist Dr Jasna Stefanovski dated 27 June 2018 (Annexure A) to Dr Jones details her consultation with the Applicant. This letter states that the Applicant’s medication will be changed to Lexapro. Dr Stefanovski also states:
“She is interested in Psychology and will organised MH Care Plan…Please consider changing her Relpax as it may be interfering with her antidepressants; she reports a jittery feeling, ? [sic] serotonergic reaction from this combination.”
76. This letter states that Dr Stefanovski will see the Applicant again in two weeks.
77. The Secretary notes that Dr Jones responded to Dr Stefanovski in a letter dated 20 July 2018, providing a copy of the Applicant’s mental health plan (Annexure B).
78. The Secretary contends that the statements of Dr Jones, the Applicant’s evidence at the AAT1, and the ongoing consultations regarding the Applicant’s mental health problems and their treatment support a finding that this condition was not fully treated and stabilised during the qualification period.
The Applicant makes the following contentions:(A2)
“I have seen my Dr, Dr Jones today, and have spoke with him at great leanths. [sic] He is quite upset with response from last tribunal stating he had failed me in regards to his documentation. Stating he has stated on all accounts diagnosed, treated, stabalised. [sic] And that he is contacting you with regards to his profesialism [sic] in my health. Also that he will be contacting Minister . He has emailed all the documents and mental health plan he has to joondulup[sic] mental health to you, and i ask pls [sic] to send to aat i will be contacting them to inform of these that went sent to you. As u are aware i have expressed its [sic] been over year getting into mental health with waiting time. And accessing mental health. [sic]As having this illness which have since 2001, and that to this day still suffer greatly. Not to mention all health issues I'm injuring. In which are long term. How can being 30% to 10% be justified. I still to this day have not received by mail as requested at tribunal papers to be signed of by disability job network. I will also be advising AAT to this problem I'm experiencing with this department. This whole experience has caused me so much grief and escalated my mental health.. I'm still recovering from shoulder operation [sic], having treatment which still has minimal gained more movement without pain. Tumor not removed. My fybromialga [sic], is life long and constant chronic pain flair ups. Not to mention, back, neck disease bone degeneration. Hands bone on bone constant pain. These will only increase.
Yet I'm denied and live in poverty to the wrongful decision on first interview cut me of disability.”

The Respondent opened by resting on Exhibit R2, its SOFIC, and confirmed the Qualification Period was 17 October 2017 to 16 January 2018.
The Respondent claimed that the Applicant had not completed a Program of Support (POS) and therefore needed 20 impairment points from a single table to qualify for DSP.
The Respondent orally submitted the following in respect to the Applicant’s medical conditions:
·Mental Health – Fully diagnosed, but not fully treated and stabilised.
·Neck, Back and Fibromyalgia – Fully diagnosed, but not fully treated and stabilised.
·Tumour in left shoulder – Fully diagnosed, but not fully treated and stabilised.
·Migraine – Fully diagnosed, but not fully treated and stabilised.
·Palpitations – Not fully diagnosed, treated and stabilised.
·POS – The Applicant had only completed 57 days of a POS during the Qualification Period.
The Applicant said she was unwell and suffering many medical conditions. She said she found the whole concept of “fully diagnosed, treated and stabilised” (FDTS) confusing and that she had great faith in the medical reports of Dr Jones.
Under cross – examination the Applicant stated:
·She was studying for Diploma in Social Work (external course). This involved reading, assignments and some attendance to lectures.
·The study was part of her compliance for her POS.
·The study allowed her to gain new skills and training.
CONSIDERATION
On the basis of the evidence before the Tribunal, the Tribunal notes that the Applicant filed an application for DSP. The Tribunal accepts that the Qualification Period is for the period 17 October 2017 to 16 January 2018.
The Tribunal will now consider all the evidence before it both written and oral from the Applicant and Respondent.Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal at the date of the claim, it is not in dispute that the Applicant suffers from the following medical conditions – neck and back pain, migraine, fibromyalgia, palpitations, tumour in region of left shoulder and mental health. There are numerous medical reports and other reports which attest to the fact that the Applicant suffers from these medical conditions.
The Tribunal finds therefore, the Applicant satisfies section 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
The Tribunal will now assess the medical conditions of the Applicant against the written and oral evidence presented.The Tribunal notes the following in respect to the Applicant’s medical conditions which was prepared for the purpose of assessing her claim in conjunction with a number of medical reports: (T46 260)(R1)
Based on review of the additional medical information provided and discussions with Dr Jones, Ms Beattie’s medical conditions cannot be treated and stable at this time. She has not participated in all reasonable treatment (treatment that is reasonably accessible, regularly undertaken or performed, has a high success rate and where substantial improvement can reliably be expected) for these conditions (such as physiotherapy, hydrotherapy, psychotherapy and counselling). The information further indicates that she has been referred to the neurology clinic, orthopaedic clinic and ortho-oncology clinic, and further treatment has not yet been recommended. As such these conditions cannot be considered reasonably treated or stable for DSP purposes.”
Neck and Back Pain
The Applicant told AAT1:(T2 8)(R1)
She has had problems with pains in her neck and back for many years. X-rays have shown a lot of wear with “bone on bone”. Treatment has been with pain killers. On one occasion she had an injection into her neck, which made no difference. She has had physiotherapy which makes it worse, and tried swimming in a friend’s pool for a while. She cannot afford to go for regular swimming.
• The pains inhibit her mobility and ability to perform everyday tasks. She can only walk for a few minutes. If standing she has to keep moving because of back ache. Sometimes she experiences sciatica in one leg.
• She is able to drive wearing hand splints. She can turn her neck far enough to use the wing mirrors, but can’t get it all the way round. She doesn’t carry heavy loads. She has to squat to pick things off the floor.
• She also has bad arthritis in her hands and has difficulty with fine tasks such as doing up a zipper or undoing the lid of a jar.
• Her GP has said not much can be done about these problems. He sent her to see Dr Falconer, an orthopaedic surgeon at [a] Hospital. He felt he couldn’t help and referred her to Dr Makin, a rheumatologist at [another Hospital]. Dr Makin said she has fibromyalgia and put her on Endep tablets. These have helped her sleep better. She has a follow up appointment with Dr Makin next month.
• She is not aware of being referred to a pain specialist”.
The Applicant told this Tribunal she suffered from this condition since she was 20 years of age and that it has worsened with age.
The Tribunal notes that on the 5 October 2017 the Applicant was still receiving treatment for this condition. Dr Makin, a Consultant Rheumatologist recommended physiotherapy for work on her neck and lumbar spine and stated he would see the Applicant in 3 months for a review. (T45 254-255)(R1)
During the hearing, the Applicant stated that she is taking medication and she participates in swimming, walking and physiotherapy. She will not entertain the idea of undergoing surgery as she has seen negative outcomes of surgery for a friend and her father. She also indicated she had to cease physiotherapy as it was too painful to continue. She stated – “I do self-therapy” as a way of managing her pain. This involves hot showers and heat packs.
The Tribunal therefore concludes that, whilst these conditions were fully diagnosed, they were not fully treated and stabilised during the Qualification Period. The Tribunal supports the Secretary’s contention that treatment must be undertaken in order for a medical condition to stabilise (T46 260)(R1)).
Migraine
The Tribunal notes at (T46 260)(R1) in an assessment dated 7 November 2017 – “Dr Jones advised that Ms Beattie has migraines and has been referred to Charles Gardner neurology, however is still waiting on an appointment.”
The Applicant told AAT1:
For the past ten years she has had severe headaches with nausea several times a week. Noise and bright lights make them worse. She has tried numerous treatments. The only one that helps is Relpax, which she takes regularly (T2 9)(R1)
The Applicant disputes the fact that Dr Jones spoke with the assessor. Whilst an important point, there is no evidence before the Tribunal to support this view, apart from the Applicant’s assertions.
The Tribunal concludes this medical condition is fully diagnosed, however as further treatment is required, it cannot be categorised as fully treated and stabilised.
Fibromyalgia
The Tribunal notes the report of Dr Makin of 5 October 2017– “I have given her some information on fibromyalgia and have suggested …a referral to hydrotherapy for her fibromyalgia. ….. I will see her here in three months for review” (T45 254-55)(R1).
The Tribunal notes the Applicant told AAT1 that:(T2 9)(R1)
She was first told she has fibromyalgia when she saw Dr Makin in October 2017. This was soon after she lodged her DSP claim.
Dr Makin put her on Endep tablets. These have improved her sleep. She has a follow up appointment with Dr Makin next month.
The Tribunal accepts this condition as fully diagnosed, but not as fully treated and stabilised during the Qualification Period.
Palpitations
The Applicant told AAT1 that: (T2 9)(R1)
·For some time she has been experiencing attacks of noticing her heart beating faster. It can happen on most days and may last for an hour or two.
·She was tested with a 24 hour monitor. The report said all was fine. However she believes the machine was not fully connected.
·She recently had a longer than usual episode and thought she was having a heart attack. Her son took her to emergency at Joondalup Hospital. They kept her in for observation and found an abnormality. They suggested she get her GP to refer her to a cardiologist. That has been done and she has an appointment on 13 March 2018.
The Tribunal does not find this as FDTS as it is well outside the Qualification Period.
Tumour in left shoulder
The Applicant told AAT1 that: (T2 10)(R1)
·Some time ago she was getting pains in her left shoulder. X-rays and scans revealed torn muscles and tendons, plus a probable tumour. The tumour is well contained. She has seen a bone oncologist who said it is very rare and should be left alone. No chemotherapy, radiotherapy or biopsy is recommended.
·She is due to have an operation to fix the damaged tendons and muscles. She is waiting to hear when that will be.”
The Tribunal notes that Dr Jones, on the 7 November 2017, confirmed diagnosis of this condition and stated that the Applicant had been seen by the Ortho-oncology clinic at the hospital and no treatment has yet been agreed to (T46 260)(R1)
The Tribunal finds diagnosis of this condition to be outside the Qualification Period, and therefore is not FDTS.
Mental health
The Applicant told AAT1 that:
She has been anxious for much of her life, but things got a lot worse in 2002 when she got divorced. She experienced domestic violence.
She was treated by her GP with antidepressant tablets but remained unwell and was admitted to hospital on two occasions because of suicidal thoughts. She was in Graylands Hospital the first time and subsequently in Joondalup Hospital.
In 2008 she was granted DSP because of her depression.
For some time she was a patient of the Clarkson Community Mental Health service. However she stopped attending because every time she went she saw a different psychiatrist and had to repeat her story all over again. She felt she was getting nowhere.
She remains under the care of her General Practitioner, Dr Jones. At one time he referred her for psychological counselling from Antoinette Faulkner, who she saw for a few weeks in 2016. Dr Jones treats her with tablets and is currently trying attempting to get her a referral for psychotherapy. This is proving difficult.
In about 2013, whilst on the DSP, she got a part-time job as hospital support worker at SCGH. However a co-worker subjected her to bullying and sexual harassment. She lodged a complaint. Her employment ended and she received a settlement through the workers compensation system.
She lives with her 21 year old son in state housing. She has no nearby friends and no social life. She has lost all interest in life and often feels that it is not worth living. She recently felt suicidal. Her GP wanted to admit her to hospital but she refused because she knew there would be men in the facility.
Because of her physical problems she is restricted in what she can do. Her son does a lot to help around the house with cooking and cleaning. He often drives her to the shops. She drives herself when she has to, but only for short trips. She gets panicky in crowds” (T2 10-11)(R1)
The Applicant repeated many of the above statements to this Tribunal. The Tribunal notes that the Applicant did not present any new evidence to the Tribunal during the course of the current hearing.
The Applicant disputed the statement of Dr Ng at (T22 158)(R1) – “She reported being treated with antidepressant Efexor [sic] XR and that when the depression resolved, attempts to come off the medication led to withdrawal symptoms and hence she remained taking it for all these years.” The Applicant disputed that this condition had been resolved.
The Tribunal notes that in his report, Dr Ng states - “… I form the opinion that your client currently suffers from a major depressive disorder (DSM 5) with associated generalised anxiety and panic attacks, at its worst to a moderate to moderately severe extent and currently partially treated.” (T22 167)(R1).
Further, Dr Ng states – “With the further passage of 12 months I would expect psychiatric improvement to occur. Based on this definition, your client’s psychiatric condition at this time has not arrived at the level of maximum medical improvement and has not stabilised.” (T22 168)(R1)
Dr Ng further stated – “Your client would currently benefit from continuing to take the medication she is currently taking for at least the next 1 to 5 years …Your client would also currently benefit from individual psychotherapy… She would currently benefit from at least a further 12 sessions of psychotherapy if not more which should occur at least every 1 to 2 weeks.” (T22 170)(R1)
During the hearing, the Applicant stated she had completed 6 to 8 sessions of psychotherapy prior to applying for DSP and the Tribunal notes that she had been referred to Dr Faulkner and had completed 3 sessions with Dr Faulkner. (T20 151)(R1)
Having considered the evidence before it, the Tribunal finds this condition fully diagnosed, but not fully treated and stabilised during the Qualification Period.
Whether the Applicant has a continuing inability to work
The Tribunal finds that the Applicant has 0 points under the Impairment Tables and therefore fails to satisfy section 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider s94(1)(c) of the Act.
DECISION
For the reasons given above, the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.

I certify that the preceding 67 (sixty - seven) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

...........[sgd].............................................................
Associate
Dated: 21 September 2018

Date(s) of hearing: 05/09/2018

Applicant: In person

Solicitors for the Respondent: Christopher Bishop, Mills Oakley Lawyers

[2018] AATA 5158

21 September 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	05/09/2018
Applicant:	In person
Solicitors for the Respondent:	Christopher Bishop, Mills Oakley Lawyers