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

Bee and Secretary, Department of Social Services (Social services second review) [2019] AATA 25 (16 January 2019)
Division:GENERAL DIVISION
File Number: 2018/0506
Re:Justin Bee
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P Clauson
Date:16 January 2019
Place:Brisbane

The decision under review is affirmed.
...................................[Sgd].....................................
Senior Member P Clauson
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension –– spinal condition – fibromyalgia condition – mental health condition – inflammatory bowel disease – haemorrhoids condition – whether impairments are of 20 points of more under the Impairment Tables – – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P Clauson
16 January 2019
INTRODUCTION

On 22 December 2016, Mr Justin Bee (“Applicant”) lodged a claim for the Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T50, p. 318, Centrelink File Note: DSP Claim dated 22 December 2016;
T36, DSP Claim Form dated 21 December 2016.
On 1 September 2017, the Department of Human Services (“Centrelink”) advised the Applicant that his application had been rejected.[2] Subsequent to this, an Authorised Review Officer (“ARO”) conducted a review of Centrelink’s decision and affirmed it.[3]
[2] Exhibit 1, T Documents, T40, pp. 192-193, Rejection of DSP dated 1 September 2017.
[3] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment A: Decision of ARO
dated 25 October 2017.
The Applicant then sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and on 17 January 2018 the original decision was once more affirmed.[4]
[4] Exhibit 1, T Documents, T2, pp. 3-8, Decision of the SSCSD dated 17 January 2018.
Following this, the Applicant sought a second tier review of his matter by the General Division of this Tribunal, by way of an application dated 1 February 2018.[5]
[5] Exhibit 1, T Documents, T1, pp. 1-2, Application for review dated 1 February 2018.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP and did not have an inability to work.
On 26 June 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 22 December 2016, or within 13 weeks thereafter, being up until 23 March 2017 (“Relevant Period”).
BACKGROUND
The Applicant did not list any details in the section of his DSP Claim Form where he was to list his disabilities, illnesses or injuries.[6] Throughout the course of his application and appeal process however, it has been found that the Applicant suffered from the following:
·Spinal condition;
·Fibromyalgia condition;
·Mental health condition;
·Inflammatory bowel disease; and
·Haemorrhoids
[6] Exhibit 1, T Documents, T36, p. 172.
On 30 May 2017, the Applicant attended an assessment with a Job Capacity Assessor (“JCA”) by telephone.[7] The JCA produced a report dated 1 June 2017, which considered the Applicant’s fibromyalgia condition, as well as his mental health condition.[8] As the Applicant had not attended a specialist for assessment of his fibromyalgia condition, and for want of evidence from a rheumatologist, the JCA considered it was not fully diagnosed, fully treated and fully stabilised.[9] Similarly, as the Applicant had only sought treatment from his General Practitioner (“GP”), not from a Psychiatrist or Clinical Psychologist, his mental health condition was not considered fully diagnosed.[10] Accordingly, the total impairment rating recommended by the JCA was 0 points.
[7]           Exhibit 1, T Documents, T39, pp. 186-191, JCA report dated 1 June 2017.
[8]           Exhibit 1, T Documents, T39, pp. 186-188, JCA report dated 1 June 2017.
[9]           Exhibit 1, T Documents, T39, p. 187, JCA report dated 1 June 2017.
[10]          Exhibit 1, T Documents, T39, pp. 187-188, JCA report dated 1 June 2017.
The JCA assessed the Applicant’s baseline work capacity as being 15-22 hours per week, with a temporary work capacity of 8-14 hours per week.[11] The JCA predicted that the Applicant could have a work capacity of 23-29 hours per week within two years with intervention.[12] The JCA relied on the fact that the Applicant’s conditions had not been fully diagnosed, fully treated or fully stabilised in making this finding.[13]
[11]          Exhibit 1, T Documents, T39, p. 189, JCA report dated 1 June 2017.
[12]          Exhibit 1, T Documents, T39, p. 190, JCA report dated 1 June 2017.
[13]          Exhibit 1, T Documents, T39, p. 190, JCA report dated 1 June 2017.
The ARO, upon review of the JCA report and other relevant evidence provided to Centrelink, made the following findings of fact:[14]
“Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·Your conditions of fibromyalgia, anxiety, and depression are not accepted as being permanent as they have not been fully treated and stabilised.
·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.”
[14] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment A: Decision of ARO
dated 25 October 2017.
The SSCSD found that the Applicant’s anxiety and fibromyalgia conditions were not fully diagnosed, fully treated and fully stabilised, but found that his spinal condition was. Accordingly, it considered that the Applicant’s condition attracted an Impairment Rating of 5 points.[15] However, as his impairments warranted a combined rating of fewer than 20 impairment points, the SSCSD affirmed the decision under review because he was therefore unable to satisfy section 94(1)(b) of the Act.[16]
[15] Exhibit 1, T Documents, T2, pp. 3-8, Decision of the SSCSD dated 17 January 2018.
[16] Exhibit 1, T Documents, T2, p. 3, Decision of the SSCSD dated 17 January 2018.
ISSUES
The issues for this Tribunal to consider are:
(a)whether, during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;
(b)whether, at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
LEGISLATIVE FRAMEWORK
The governing legislation, unless otherwise quoted, is the Social Security Act 1991

(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
In order for the Applicant to qualify for the DSP, certain relevant criteria set out in section 94(1) of the Act must be met:
(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)the person has a continuing inability to work.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified within the 13 weeks following the date of claim.[17] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[18]
[17] Administration Act, ss 41 and 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[18] 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) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)

(“the Impairment Determination”).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[19] Essentially, the Tables are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[20] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[21]
[19]          Impairment Determination, s 5(1) – (2).
[20]          Impairment Determination, s 5(2).
[21]          Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[22]
[22] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years.[23]
[23] Impairment Determination, s 6(5).
A condition will be considered 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.[24]
[24] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the Applicant.[25]
[25] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[26]
[26] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[27]
[27] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant suffers from a spinal condition, fibromyalgia condition, mental health condition, inflammatory bowel disease condition and haemorrhoids, and it is not in dispute that he has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[28] The questions to be determined by this Tribunal are, however, whether or not during the Relevant Period those impairments attracted an impairment rating of 20 points or more under the Impairment Tables,[29] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[28] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, at [30].
[29] The Act, s 94(1)(b).
I will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables.
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
Spinal condition
The Secretary acknowledges that the Applicant has a long history of back pain, however disagrees with the findings of the SSCSD that this condition can be found to be fully diagnosed, fully treated and fully stabilised during the qualification period. The Secretary also contends that there is no corroborating medical evidence to support a finding that it is fully treated and fully stabilised.[30]
[30] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, at [49] to [53].
The Tribunal has had regard to the evidence provided to the Tribunal and the Applicant’s oral evidence at the hearing.
The Secretary relies on the medical evidence in the JCA report dated 7 July 2011,[31] specifically the report from Dr Loftus, the Applicant’s GP, where he notes that the Applicant had been treated with physiotherapy, analgesic medication and Valium for the condition since the diagnosis of “degenerative disc disease of the L5 spine” in 1999. They further rely on Dr Maguire’s report dated 15 November 2017.[32] The Secretary contends that the condition cannot be considered fully treated or stabilised because the report indicates that further investigations and treatment options were being undertaken during the Relevant Period.[33]
[31] Exhibit 1, T Documents, T5, p. 55.
[32] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment B.
[33] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, at [49].
In an Employment Services Assessment Report dated 9 April 2013[34] the assessor noted the diagnosis of degenerative disc disease at L5 and confirmed that the Applicant reported a limited treatment regime for this condition, with no medication or ongoing intervention. Symptomatically, the Applicant reported that pain could be triggered by physical activity such as heavy lifting or twisting movements. He also reported suffering from sciatic pain on occasion up to his neck and down to his leg, and that these symptoms were exacerbated by digging, lawn mowing and heavy lifting. The Assessor concluded this condition to be permanent, as they considered any functional improvement to be unlikely within 2 years. A further Employment Services Assessment Report dated 7 May 2015 replicated these findings and concluded the condition to be permanent.[35]
[34] Exhibit 1, T Documents, T8, p. 65.
[35] Exhibit 1, T Documents, T16, p. 81.
The Applicant’s GP Dr Bhargavi Kanuru also reported to Centrelink on 16 July 2015 that the Applicant was suffering from lower back pain and was being treated with analgesia and physiotherapy for the condition.[36] Dr Kanuru recorded the condition to be permanent, and noted that the past and present treatment comprised analgesia medication and physiotherapy. Further, the Applicant’s medical practitioner, Dr Rod Smith, reported to Centrelink on 17 February 2016 that the Applicant was suffering from “chronic lumbar pain/R sciatica” which, in his opinion, was a permanent condition. He also reported that the Applicant had been and was still being treated with analgesia with “ortho review” planned.[37] This Tribunal has no evidence before it to suggest that this planned treatment was ever undertaken.
[36] Exhibit 1, T Documents, T17, p. 87.
[37] Exhibit 1, T Documents, T27, p. 109.
On 17 February 2016, a bone scan was conducted and reported on by a specialist radiologist, Dr Paszkowski, to the Applicant’s GP, who had referred the Applicant to him for this procedure. The report relevantly states: “No active bony pathology seen to account for the lower back pain. No evidence of active disc degeneration or facet joint arthritis. Healing fractures of the right 6^th and 9^th ribs.” This comment is consistent with the doctor’s earlier finding in the same report that: “The lumbar spine and thoracic spine have a normal appearance on both planar and SPECT views. There is low level periarticular uptake seen in medial compartment of left knee and medial left shoulder, consistent with some minor arthropathy. The appearance of the skeleton is otherwise normal.”[38] This Tribunal has no other relevant reports available to it until as late as November 2017, which is well outside the Relevant Period.
[38] Exhibit 1, T Documents, T41, at p. 271.
Dr Peter Alroe referred the Applicant to Dr Ken Maguire, a consulting physician who specialises in rheumatic diseases and sports medicine. Dr Maguire provided a report dated 15 November 2017 where he relevantly noted that: “The mild lower lumbar facet arthropathy was noted more marked at L4/5 and the bilateral sacroiliac joint osteoarthritis was also seen.”[39] The report also noted “Disc desiccation at C5/6 and C6/7… but no major nerve compression. Similarly, there was disc desiccation at T5/6, T7/8 and T8/9 without any compressive abnormalities.” This report did not detail whether any specialist interventions had been recommended or planned specifically for the Spinal Condition other than ongoing pharmacological treatment by way of Lyrica, Panadeine Forte, Thallium, and Tramadol. Dr Maguire also noted that the Applicant had reported excessive usage of Valium. Dr Maguire further reported that at the time of consultation, the Applicant stated that his spinal condition was not active.[40] The Secretary contends that, as Dr Maguire had organised further investigations into the Applicant’s spinal condition in November 2017, the condition could not be considered fully diagnosed. However, the medical evidence before the Tribunal indicates that, at the Relevant Period, the Applicant had been consistently diagnosed by qualified medical professionals with degenerative disc disease since 1999. I therefore accept that, during the Relevant Period, the Applicant’s spinal condition was fully diagnosed.
[39] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment B, p. 21.
[40] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment B.
The medical evidence available to the Tribunal provides limited detail regarding the treatment that has been undertaken and recommended to the Applicant, however, it is clear that the Applicant had been consistently treated with analgesia medication, and that orthopaedic review was proposed. Despite this, there is no evidence to suggest that the Applicant consulted with a specialist.

In fact, the Applicant reported on multiple occasions that he had not been referred to specialist review, and had not sought out expert opinion in relation to his treatment options. The Applicant reported that he attended one physiotherapy session in 2010 and stated to the JCA that he had been given some core strengthening exercises to perform, however he found the physiotherapy to not be beneficial, and he found some of the core strengthening exercises too difficult to perform.[41] In July 2015, the Applicant was referred to physiotherapy regarding his lower back pain.[42] While Dr Alroe confirmed in January 2018 that the Applicant had attended education programs and physiotherapy through the Persistent Pain Management Service for his fibromyalgia condition,[43] there is no medical evidence to corroborate that physiotherapy was not reasonable treatment for his spinal condition for the Relevant Period. The Tribunal therefore cannot conclude that the condition was fully treated at the Relevant Period.
[41]          Exhibit 1, T Documents, T5, p. 55.
[42]          Exhibit 4, Referral from Dr Kanuru dated 17 July 2015.
[43]          Exhibit 4, Letter from Dr Alroe dated 5 January 2018.
The Tribunal, given the lack of medical evidence before it, is therefore unable to conclude that the spinal condition was fully treated and stabilised in the Relevant Period, and is unable to assign an Impairment Rating to this condition under the Impairment Determination.
Fibromyalgia condition
The Secretary contends that the Applicant’s fibromyalgia condition was still under investigation during the Relevant Period and therefore, on that basis, could not be considered fully diagnosed, fully treated and fully stabilised.[44]
[44] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, at [34].
The material before this Tribunal indicates that Dr Alroe provided a medical certificate for Centrelink purposes on 28 September 2016, which recorded that the Applicant had been diagnosed with fibromyalgia and characterised his symptoms as “generalised pains and back pain”.[45] The medical certificate did not describe any treatment having been undertaken in the past or at that time, however it indicated that planned treatment included referral to a pain clinic.[46] There was no reference to a specialist report or expert referral to support this opinion, and none of the medical evidence before the Tribunal contemplates specialist referral until October 2017 when Dr Alroe indicated that planned treatment for this condition comprised “rheumatologist review”.[47]
[45]          Exhibit 1, T Documents, T30.
[46]          Exhibit 1, T Documents, T30, p. 127.
[47]          Exhibit 1, T Documents, T42, p. 231.
On 18 November 2016, Dr Alroe prepared a GP Mental Health Plan (“the Plan”) to increase the Applicant’s functional capacity in regards to his fibromyalgia condition. Dr Alroe suggested psychological therapy, physical therapy and Lyrica to achieve this goal.[48] On 1 December 2016, Dr Alroe prepared a further Team Care Arrangements Plan to assist with the maintenance and care of the Applicant’s fibromyalgia and chronic pain.[49] The Team Care Arrangements Plan noted the Applicant’s goals to be pain reduction, fatigue and malaise reduction and to increase his physical abilities and stamina. In order to achieve these goals, it was determined that the following treatments were required:[50]
(a)Pain Clinic Assessment for pain management education and to be waitlisted as Category 3;
(b)Medication for oversight of general condition; and
(c)Psychological therapy comprising CBT, activity planning and anxiety management techniques.
[48]          Exhibit 1, T Documents, T32, p. 134.
[49]          Exhibit 1, T Documents, T33, p. 136.
[50]          Exhibit 1, T Documents, T33, p. 136.
The Applicant agreed to proceed with the requisite actions and treatments that were outlined in both Plans.[51]
[51] Exhibit 1, T Documents, T32, p. 134; T33, p. 136.
The Employment Services Assessment Report of 19 April 2017 reported the Applicant as stating that attendance at the pain clinic “was very helpful…and also physiotherapy has helped with walking better and reduced pain”. This report also noted that future treatment included the psychological therapy for which the Applicant had been referred under the Plan.[52]
[52] Exhibit 1, T Documents, T38, p. 180.
However, on 1 June 2017, the JCA recorded that the Applicant: [53]
“attends physiotherapy intermittently but attended recently, stating he has attended several sessions during 2016 but this is not particularly helpful and he does not perform the suggested home exercises, preferring to follow his own exercise routine …The client reported nil other formal allied health interventions (e.g. dietician, exercise physiology) as he prefers to engage in informal discussions on internet forums and chats. The client stated he has not engaged in a formal graded exercise programme as suggested by GP.”
[53] Exhibit 1, T Documents, T39, pp. 185-191.
The JCA noted that the Applicant was taking Lyrica to manage his pain, which caused fatigue, and that at that stage, the Applicant had not attended a specialist or rheumatologist to confirm his diagnosis or to obtain a tailored treatment plan. Dr Alroe only reported that the Applicant’s planned treatment included “rheumatologist review” on 9 October 2017.[54]
[54] Exhibit 1, T Documents, T42, p. 231.
Following this referral, a report was prepared by Dr Maguire on 15 November 2017. Dr Maguire reviewed the investigations carried out prior to his consultation with the Applicant and recorded: “an overall pattern of multisegmental disc desiccation, subtle change in lumbar facet joints and sacroiliac joints… evidence of healing fractures on the right C6 and ninth ribs and general diffuse joint symptoms...”[55]
[55] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment B, p. 21.
Dr Maguire suggested that the aforementioned pathology was more likely the cause of the Applicant’s pain instead of fibromyalgia. Nevertheless, Dr Maguire concluded that based upon the “fibromyalgia pattern,” the Applicant could benefit from a pain specialist, with a specialist interest in fibromyalgia management.[56]The Respondent contends that as no specialist opinion was sought to confirm the diagnosis prior to the Relevant Period and Dr Maguire conducted further investigations and questioned the veracity of the diagnosis in November 2017, the condition cannot be considered fully diagnosed.[57] However, noting that the Applicant was not referred to a specialist until October 2017, I do accept that at the Relevant Period, the condition was fully diagnosed by the Applicant’s treating physician.
[56] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment B, p. 21.
[57] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, at [51].
It is clear to the Tribunal, however, that the condition cannot be considered fully treated and stabilised as at the Relevant Period. The Applicant provided evidence that he had partially engaged with the recommended treatment options during and after the Relevant Period, although he had not taken part in a formal exercise program, and was still referred for psychological therapy in April 2017. In January 2018, Dr Alroe reported that the Applicant had attended educational programs, physiotherapy and psychology sessions to assist with the management of his fibromyalgia.[58] Dr Alroe noted the significant relationship between the Applicant’s fibromyalgia and mental health condition, and further reported that the multidisciplinary program through the Pain Management Service had not resulted in any improvement to the Applicant’s situation. However, the evidence before the Tribunal indicates that, as at the Relevant Period, the Applicant had not exhausted the range of reasonable treatments which had been recommended, and which would be likely to result in a functional improvement.
[58] Exhibit 4, Report from Dr Alroe dated 5 January 2018.
The Tribunal finds that the Applicant’s fibromyalgia condition was not, during the Relevant Period, fully treated and fully stabilised. The condition is therefore unable to be rated under the Impairment Tables or assigned a rating under the Determination.
Mental health condition
The Secretary contends that the Applicant’s mental health condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.[59]
[59] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, at [54].
The Introduction to Table 5 of the Impairment Tables stipulates that a diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner, which includes a psychiatrist, with evidence from a clinical psychologist where the diagnosis is not made by a psychiatrist.[60]
[60] Impairment Determination, Introduction to Table 5.
Despite the Applicant’s GP’s confirming in various medical certificates since 2011[61] that he has an anxiety disorder, with evidence of anxiety/depression, there is no evidence that the Applicant consulted a clinical psychologist or psychiatrist until Dr Sarah Dean’s report in January 2018.[62] The Applicant confirmed to the Employment Services Assessors in April 2013 and May 2015 that he had not taken any antidepressants, nor had he engaged in any form of counselling for this condition.[63]
[61]          Exhibit 1, T Documents, T6, p. 62; T7, p. 63; T9, p. 72; T15, p. 79; T33, p. 135.
[62]          Exhibit 4, Legal Aid Questionnaire completed by Dr Sarah Dean dated 8 January 2018.
[63]          Exhibit 1, T Documents, T5, p. 56; T5, p. 65; T16, p. 81.
On 18 November 2016 Dr Alroe prepared the Plan, tailored to treat the Applicant’s mental health condition as well as to assist with chronic pain management.[64] In relation to the Applicant’s mental health condition, the Plan noted psychological therapy and “consideration of antidepressants” were recommended in order to improve the Applicant’s mood and coping mechanisms. In a further Team Care Arrangements Plan dated 1 December 2016, Dr Alroe recorded that the Applicant was taking 1 Diazepam (Valium) tablet daily, and that the Applicant required psychological therapy and Cognitive Behaviour Therapy.[65] The JCA report of 1 June 2017 notes that the Applicant self-reported that he had attended about six counselling appointments but felt that they were unhelpful, and does not take any medication as he “feels it is not necessary.”[66]
[64]          Exhibit 1, T Documents, T32, p. 134.
[65]          Exhibit 1, T Documents, T33, pp. 135-136.
[66]          Exhibit 1, T Documents, T39, p. 187
Despite the Applicant reporting to the JCA that he attended psychological counselling appointments pursuant to the Plan, the only diagnosis available to the Tribunal by a qualified medical practitioner is that made by Dr Sara Dean, clinical psychologist, when she diagnosed the Applicant with anxiety in January 2018.[67] It is to be noted that this diagnosis was made some 9 months beyond the Relevant Period. Dr Dean’s report therefore can only be utilised to the extent that it “casts light on” the Applicant’s condition during the relevant period.[68]
[67] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment C, p. 23.
[68] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.
It is accepted that, while the report of Dr Dean states that “significant clinical improvement was not expected”, that opinion was based on her belief that the Applicant had been receiving significant interventional help in the intervening four year period which included medication, counselling, and pain management with “no significant improvement to his functioning”.[69] The Applicant however, has repeatedly confirmed that he did not have any medication or undergo psychological counselling during the Relevant Period; in other words, he had not received any intervention for this condition. The Secretary contends that, therefore, Dr Dean’s conclusion that significant clinical improvement is not expected because it has been unsuccessful in eliciting any functional improvement in the past does not accurately reflect the Applicant’s prognosis as at the date of the qualification period.[70] The Tribunal accepts this contention and as such, the Tribunal cannot infer that Dr Dean’s opinion sufficiently casts light on the Applicant’s mental health condition during the Relevant Period.
[69] Exhibit 4, Legal Aid Questionnaire dated 8 January 2018.
[70] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, at [58].
The Tribunal therefore finds that, on the available evidence, the Applicant’s mental health condition was not fully diagnosed at the qualification period and is unable to assign the Applicant’s mental health condition an Impairment Rating under Table 5 of the Determination.
Other conditions
The Applicant’s medical records indicate that at the Relevant Period, the Applicant suffered from conditions of inflammatory bowel disease and haemorrhoids.
The inflammatory bowel disease was described as being temporary by Dr Housego in a medical certificate dated the 30 October 2015,[71] and his haemorrhoids condition was mentioned as part of a GP Management Plan by Dr Alroe dated 25 November 2015.[72] The Applicant was referred to a specialist and had an appointment with the Gastroenterology Clinic on 24 March 2016, however, there is no further medical evidence regarding the diagnosis or treatment of these conditions. Given the lack of medical evidence, I cannot consider these conditions to be fully diagnosed, treated or stabilised and therefore am unable to rate them under the Impairment Determination.
[71] Exhibit 1, T Documents, T21, p. 102.
[72] Exhibit 1, T Documents, T41, p. 214.
CONCLUSION
This Tribunal finds that none of the spinal, fibromyalgia, mental health, inflammatory bowel disease or haemorrhoids conditions could be classified as fully diagnosed, fully treated and fully stabilised as at the Relevant Period and thus cannot be assigned an Impairment Rating under the Impairment Determination.
CONTINUING INABILITY TO WORK
As the Applicant does not have a total of 20 or more impairment points under the Tables, he does not satisfy the requirement under section 94(1)(b) of the Act. Therefore, he does not qualify for DSP via this application. Given this conclusion, it was not necessary for the Tribunal to consider whether the Applicant had a continuing inability to work.
DECISION
The decision under review is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Clauson

...................................[Sgd].....................................
Associate
Dated: 16 January 2019

Date of hearing: 26 June 2018

Applicant: By phone

Advocate for the Respondent: Ms Sharon Sangha

Solicitors for the Respondent: Mills Oakley

[2019] AATA 25

16 January 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	26 June 2018
Applicant:	By phone
Advocate for the Respondent:	Ms Sharon Sangha
Solicitors for the Respondent:	Mills Oakley