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

Brown and Secretary, Department of Social Services (Social services second review) [2018] AATA 3856 (12 October 2018)
Division:GENERAL DIVISION
File Number: 2018/0002
Re:Kerry Brown
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:12 October 2018
Place:Perth

The decision of AAT1 is affirmed.
.........................[sgd]..........................................
Member C Edwardes
CATCHWORDS
Social Security – disability support pension – medical conditions – osteoarthritis – fibromyalgia – depression – shoulder and arm – qualification period – fully diagnosed – not fully treated and stabilised – impairment tables – no participation in program of support – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) – s 94, ss 94(1), ss 94(2), ss 94(3B), ss 94(3C)
Social Security Administration Act 1999 (Cth) – s 179, Sch 2 Cl 4 (1)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252
Ulukut and 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 (Cth) – s 3, ss 6(1), ss 6(2), ss 6(3), ss 6(4), ss6(5), ss 6(6), ss 6(7), s 7, ss 8(1), s 9, s 10, s 11, ss 11(1)(c)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – s 5, ss 7(1), ss 7(2)
Department of Social Security, Guide to Social Security Law (Version 1.249, 20 September 2018)
REASONS FOR DECISION
Member C Edwardes
12 October 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 28 November 2017. The AAT1 affirmed a decision of the Department of Human Services (Centrelink) to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 8 February 2017 (T16 152-181) (R1).
INTRODUCTION
On 8 February 2017, the Applicant lodged a claim for DSP involving the medical conditions of: chronic pain in his neck, back, shoulder blade, left thumb joint, both knees, and left hip; muscular and nerve ending pain; chronic fatigue; moderate arthritis in joints; fibromyalgia; two small hernias; two kidney cysts; and irritable bowel syndrome (T16 177) (R1).
The claim was rejected by Centrelink and the Applicant was advised of this rejection by letter dated 20 July 2017 (T28 196) (R1). The reason for rejection of the application was on the basis that the Applicant did not have an impairment rating of 20 points or more.
The Applicant requested review of the decision by Centrelink. The review was undertaken by an Authorised Review Officer (ARO) of the Department of Human Services and the Applicant received notification of that review on 28 August 2017 (T33 203-210) (R1).
The ARO advised the Applicant of a number of findings (T33 204) (R1):
·Your conditions of osteoarthritis, fibromyalgia, depression and shoulder pain are not accepted as being permanent as they have not been fully diagnosed, treated and stabilised.
·You do not have a severe impairment, and you do not have an impairment rating of 20 points or more.
·You have not actively participated in a program of support for at least 18 months within the 3 years prior to claiming Disability Support Pension.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
As a result of the decision of the ARO, the Applicant lodged an application with AAT1. The AAT1 affirmed the decision in the AAT1 decision dated 28 November 2017. The AAT1 determined that the Applicant’s medical conditions generated no impairment points under the impairment tables (T2 6-12) (R1).
AAT1 made the following findings (T2 10-12) (R1):
Condition 1 – osteoarthritis
…
29.The tribunal is satisfied that the condition of osteoarthritis is fully diagnosed. However there has been no specialist input into treatment, which has been aimed mainly at pain relief. In light of the impending assessment at the RPH pain clinic the tribunal determined that, at the time of the claim, this problem was not fully treated or fully stabilised. Therefore it attracts no impairment points.
Condition 2 – fibromyalgia
…
31.In the absence of any specialist input into the diagnosis the tribunal determined that the condition of fibromyalgia cannot be considered fully diagnosed, fully treated or stabilised. Therefore it generates no impairment points.
Condition 3 – depression
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34.The tribunal determined that, at the time of the claim, the diagnosis of depression had not been confirmed by a psychiatrist or clinical psychologist. Even if the retrospective diagnosis is accepted treatment has only begun fairly recently and it is not possible to ascertain the success or otherwise of treatment. The condition is therefore not fully treated or fully stabilised. It attracts no impairment points.
As a result of the above, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 1 January 2018 for a review of the AAT1 decision dated 28 November 2017 (T1 1-5) (R1).
The Applicant lodged this claim for review on the basis that his application to AAT1 failed because his conditions generated no points under the impairment tables (T1 5) (R1).
The Application for review stated (T1 5) (R1):
Item no:34
When I visited the clinical psychologist (the dates) was never discussed at the tribunal hearing so how could the AAT member M Jones imply ‘has only fairly recently and it is not possible to ascertain the success or otherwise of treatment. The condition is therefore not fully treated or fully stabilised.’
I have had all six visits under Medicare and all though I have another 4 available if needed, I have not needed them and the last visit was some months ago.
The exact dates that I had visited my clinical psychologist I have asked for those dates to be put in writing of which I should receive shortly after the Christmas holidays period to give proof of when my visits were and the last visit was.
I believe I should of (sic) attracted the impairment points.
Item no: 31
Just because I can’t get to see a pain specialist or a rheumatologist though (sic) the public health system due to state and federal funding cuts, my doctor Michael Corbett MBBS (UK) MRC GP (UK) FRAC GP who did his medical training in London is quite qualified to comfirm (sic) a diagnosis from Doctor Reza Amirtouri of the same medical practice and has been treating me since around the beginning of April 2017. I see him every 28 days for consultation and renewal of monthly medications.
So there for I believe I am fully diagnosed, fully treated and stabilised, if state and federal governments reduce funding then the patients should not be penalised if there’s a two year wait. Also my doctor has filled in and signed Centrelink form stating I have been fully diagnosed, fully treated and stabilised for all 3 conditions.
1. Fibromyalgia
2. Osteoarthritis
3. depression
And is very highly regarded in the community as a (sic) exceptional Doctor.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Administration Act. Section 179 of the Administration Act states that:
(1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
(1)A 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 subsection 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”.
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant would generate an impairment rating of 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:
5. … 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.
6. 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.
Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsection 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, subsection 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 subsection 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to subsection 94(2) of the Act:
2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)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
(a)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
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) 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 subsection 94(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.)
Subsection 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, section 5 and subsections 7(1) and 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. In accordance with the requirements in Schedule 2 clause 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in 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 8 February 2017 to 10 May 2017 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) 158 FCR 252 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 consider is whether the Applicant was qualified for DSP pursuant to subsection 94(1) of the Act during the Qualification Period.
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 subsection 94(2) of the Act.
EVIDENCE
The matter was heard in Perth on 2 October 2018. The Applicant appeared in person. The Respondent was represented by Ms Zinn of Mills Oakley.
The Tribunal would like to thank all parties for the assistance they provided during this hearing.
The Tribunal had the following evidence before it:
·Exhibit A1 – Applicant’s Submission received 6 July 2018.
·Exhibit A2 – Undated letter from the Applicant and accompanying documents from Mundaring GP Super Clinic, received by the Tribunal on 23 March 2018.
·Exhibit A3 – Letter from Dr Larson, Clinical Psychologist, dated 19 January 2018.
·Exhibit A4 – Psychological report of 7 September 2018 from Dr Larson, Clinical Psychologist.
·Exhibit R1 – T documents (T1-T49 pp 1-358)
·Exhibit R2 – Secretary’s Statement of Facts Issues and Contentions dated 1 June 2018.
·Exhibit R3 – Secretary’s list of authorities.
·Exhibit R4 – Annexure A: Letter of Clinical Psychologist Dr Larson (undated).
·Exhibit R5 – Annexure B: Letter of Clinical Psychologist Dr Larson dated 19 January 2018.
·Exhibit R6 – Annexure C: Letter of GP Dr Michael Corbett dated 16 March 2018.
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 (R2 6-9):
Osteoarthritis
27.In accordance with the AAT1 decision, the Secretary accepts that this condition was fully diagnosed during the qualification period. The Secretary contends, however, that this condition was not fully treated and stabilised during the qualification period.
28.X-ray reports (T7/130-132) indicated that there have been moderate osteoarthritic changes in the thoracic spine, as well as mild osteophyte lipping present at the medial compartments at both knees. There are mild degenerative changes involving the facet joints of the lumbar spine, and mild annular bulge present at L2/3 L3/4 and L4/5.
29.The Job Capacity Assessment (JCA) of 7 April 2017 (T8/134) noted that the Applicant had osteoarthritic change in the right glenohumeral joint with bony spurring on the humeral head. This report also noted minor narrowing of the interphalangeal joint space consistent with early osteoarthritic change.
30.The Applicant reported during the JCA that he was awaiting referral to a pain clinic. This referral is found at T7/129. The Applicant also reported that he was to commence on 5mg patches of Norspan, and had recently commenced on Cymbolta.
31.The Applicant provided a letter from his physiotherapist, indicating engagement in treatment for cervical and thoracic spine since July 2007 (T9/142).
32.The Job Capacity Assessor considered that as the Applicant was awaiting specialist input and had a referral to a pain clinic, the condition could not be considered fully treated or stabilised.
33.A medical certificate of 2 August 2017 notes ongoing physiotherapy and analgesia as planned treatments for osteoarthritis and fibromyalgia (T29/198). This medical certificate, and a further medical certificate of 4 August 2017 (T30/199) noted that the Applicant was awaiting an appointment for a pain clinic specialist.
34.At the AAT1 hearing, the Applicant told the Tribunal that he has not seen any specialists, such as an orthopaedic surgeon or rheumatologist. He has had many treatments including pain killers, anti-inflammatory drugs, chiropractic treatments, physiotherapy, massage therapy and hydrotherapy. He was awaiting consultation with a pain specialist and had also been referred to a rheumatology clinic.
35.The Secretary notes that the expected time for a pain consultant appointment was stated as being 18-24 months from the date of referral (T43/335). The Secretary contends that this estimated time was within 2 years of the qualification period, and as such, the wait time does not preclude pain specialist consultation from being considered a reasonable treatment yet to be undertaken. Pain management has been considered a reasonable treatment in case law.
Fibromyalgia and Chronic Fatigue Syndrome
36.The Secretary contends that these conditions were not fully diagnosed, treated and stabilised within the qualification period.
37.The Secretary notes that the condition of fibromyalgia was only recently diagnosed in with respect to the qualification period, on 2 February 2018 (see Annexure C).
38.The Secretary considers that there is inadequate evidence to be able to consider Chronic Fatigue Syndrome and fibromyalgia separately. The Secretary notes that Chronic Fatigue Syndrome is identified alongside depression in the medical certificate of 2 August 2017 (T29/198). Chronic Fatigue Syndrome was identified in ‘other medical conditions’ as impacting on ability to function secondary to fatigue in the medical certificate of 4 August 2017. A letter from GP Dr Michael Corbett, dated 16 August 2017, identified fibromyalgia as condition affecting the Applicant.
39.The Secretary notes that the dates of these reports are outside the qualification period, and that reference to diagnosis within the qualification period was not noted until March 2018.
40.The Secretary considers that even if the condition of fibromyalgia is considered fully diagnosed, it cannot be considered as fully treated and stabilised due to the options for treatment yet to be pursued.
41.The Secretary notes that pain management has been identified as a planned treatment for fibromyalgia (T29/198, T30/199).
42.The JCA of 7 April 2017 (T8/135) considered that specialist management and input for clarification of this condition would be required.
43.The Secretary notes the evidence given by the Applicant in the AAT1 hearing (T2/11), that the Applicant had not seen a specialist about this, and as noted in paragraph 30, was awaiting consultation with a pain specialist.
44.The Secretary contends that pain management consultation may result in significant functional improvement regarding this condition, and as such, the condition cannot be considered fully stabilised.
45.In regards to Chronic Fatigue Syndrome, the Secretary notes that there is limited information of this condition. This condition was not noted in the JCA of 7 April 2018, nor was it considered in the ARO review decision or AAT1 decision.
…
Depression
47.The Secretary considers that this condition was fully diagnosed, but not fully treated or stabilised during the qualification period.
48.The Applicant reported at the AAT1 hearing that he had suffered with depression on and off for much of his adult life. He had taken anti-depressants at various times, and had not consulted a psychologist or psychiatrist about his issues, apart from for a work- related problem.
49.The Applicant commenced consultation with clinical psychologist Sahna Larson during the qualification period. An undated report (T42/332) from Sahna Larson notes that diagnosis on the first appointment on 6 April 2017, from the referral on 23 February 2017 was depression (see Annexure B).
50.This diagnosis is consistent with previous treatment of anti-depressant medications and as noted in Sahna Larson’s report, the Applicant’s self-reported symptoms.
51.This report indicated moderate symptoms on the Global Assessment Functioning Scale (T42/333, Annexure A).
52.As this diagnosis was made by an appropriately qualified person during the qualification period, the Secretary accepts that for the purposes of this claim, the condition of depression was fully diagnosed.
53.The Secretary contends, however, that this condition cannot be considered to have been fully treated and stabilised during the qualification period.
54.The Secretary notes that the diagnosis for this condition was made soon into the qualification period.
55.The Applicant had a history of using antidepressants at various times, however, the Applicant’s GP prescribed a permanent antidepressant Cymbalta following the breakup of the Applicant’s de facto relationship, financial pressures and family court proceedings. The Applicant had also not previously undertaken psychology before 23 February 2017 (T2/11).
56.The Applicant, as 28 November 2017, was continuing to see Sahna Larson and reported finding these sessions helpful. He has four further sessions planned following resolution of his family court proceedings (T2/11-12).
57.As psychological counselling was begun only during the qualification period, and due to the fact that the Applicant had not previously undertaken this type of treatment, the Secretary contends that this condition cannot be considered fully treated during the qualification period.
58.The Secretary contends that this condition cannot be considered fully stabilised, as continued psychological counselling may result in significant functional improvement.

The Tribunal notes the Applicant’s submission received on the 6 July 2018 (A1). In summary, the submission disagrees with the findings of AAT1 and the Applicant feels that the medical conditions he suffers are fully diagnosed, treated and stabilised.
The submission however, lacks an understanding of how the legislation that governs the disability support pension operates. The submission contains matters not relevant to this application and those parts that are legible appear to be based upon self-reporting and sources of information that do not stand up to the high standards of medical scrutiny.
The Applicant states that his medical conditions have had a significant impact on his financial situation.
The Respondent opened by relying on the Secretary’s Statement of Facts, Issues and Contentions (Exhibit R2), and by stating that the Qualification Period was 8 February 2017 to 10 May 2017.
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 (R2 10-13).
The Respondent agreed at the hearing that all of the medical conditions (osteoarthritis, fibromyalgia and chronic fatigue syndrome, depression and shoulder pain) of the Applicant were fully diagnosed but not fully treated and stabilised.
The Applicant stated at the hearing that he was unwell and suffering many medical conditions. He was homeless and lived in his car. He is in the process of submitting a fresh application for DSP.
The Applicant in oral evidence at the hearing discussed each of his medical conditions:
(a)Depression
It was clear at the time of lodging his application for DSP that this condition had only just been diagnosed and that treatment was on going. Dr Larson (clinical psychologist) only saw the Applicant in April 2017 during the Qualification Period.
(b)Osteoarthritis
The Applicant conceded that he is yet to see a pain specialist, although he was referred in September 2016 at the hearing. He confirmed he had been advised that there was a two year waiting period to get access to treatment in the public health system.
(c)Arm and Shoulder
The Applicant has had cortisone injections which were not successful. He is waiting for treatment from a pain specialist as the condition is interwoven with his osteoarthritis.
(d)Fibromyalgia
The Applicant stated that he was first diagnosed in January 2017. His treatment regime was not completed during the Qualification Period as he is waiting to see a pain specialist. He has attempted to see a rheumatologist but this as well has a waiting period of two years in the public health system
CONSIDERATION
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal, it is not in dispute that during the Qualification Period the Applicant suffered from the following medical conditions: Osteoarthritis; Fibromyalgia and Chronic Fatigue Syndrome; and Depression.
There are medical reports which attest to the fact that the Applicant suffered from these medical conditions.
The Tribunal finds that the Applicant satisfies subsection 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Impairment Tables
The Tribunal will now assess the medical conditions of the Applicant against the written and oral evidence presented.
Osteoarthritis
The Applicant told AAT1 (T2 10) (R1):
·He has had widespread arthritic pain for at least 15 years. At various times it affects his back, hips, knees and hands.
·He has had many treatments including pain killers, anti-inflammatory drugs, chiropractic, physiotherapy, massage therapy and hydrotherapy. He uses an expensive massage chair and also a ‘back inverter’ on an intermittent basis.
·Until January 2017 he was working as a self-employed truck driver. He ceased working because he was no longer able to cope with widespread pain from arthritis and fibromyalgia.
·He has not seen any specialists, such as an orthopaedic surgeon or rheumatologist, about this problem. However his current GP has referred him to the pain clinic at RPH. He has been to an educational session and anticipates seeing the specialist early in 2018. He has also been referred to a rheumatology clinic, but understands there is a long waiting list.
·In recent months the pain has been getting worse. At the time of his claim, about nine months ago, he could walk slowly for about 20 to 30 minutes, drive his car for up to 45 minutes and manage his own shopping and domestic duties. At that time he was living alone in his own home, having broken up with his de facto partner. Since then the bank has repossessed his house and he is staying with friends. He does what he can to help out with some of the housework.
AAT1 found that (T2 11) (R1):
… the condition of osteoarthritis is fully diagnosed. However there has been no specialist input into treatment, which has been aimed mainly at pain relief. In light of the impending assessment at the RPH pain clinic the tribunal determined that, at the time of the claim, this problem was not fully treated or fully stabilised. Therefore it attracts no impairment points.
The Applicant told this Tribunal that he was waiting to see a pain management specialist. This is confirmed further at T43 which is a letter that confirms that the Applicant is on a waitlist (T43 335)(R1).
The Tribunal notes the Job Capacity Assessment (JCA) report of 7 April 2017 that states that x-rays undertaken on 22 September 2016 show significant “loss of vertebral body height at C4, C5 and C6 with multilevel osteophytosis worse at C5” (T8 134) (R1).
The Tribunal notes further that future treatment for this condition includes medication and physiotherapy (T8 134) (R1).
The Tribunal also notes x-ray results from 22 September 2016 which provide confirmation that the Applicant suffers from osteoarthritis in his spine, both shoulders, both elbows and both hands (T11 146) (R1).
The Tribunal notes in the medical report dated 4 August 2017, Dr Corbett states that the Applicant has ongoing medication, regular analgesia and is awaiting an appointment with a pain specialist (T30 199) (R1).
Having considered the evidence before the Tribunal, the Tribunal finds that this condition is fully diagnosed, however, it is not fully treated and stabilised as the Applicant’s treatment with the pain specialist during the Qualification Period did not occur.
Fibromyalgia and Chronic Fatigue Syndrome
The Applicant told AAT1 (T2 11) (R1):
·For several years he attended the Mundaring Medical Centre where he saw various GPs. He was diagnosed with chronic fatigue syndrome (CFS) and had frequent blood tests. He was not happy with the treatment and, in 2016, switched to a new practice, Mundaring Super Clinic. He now sees Dr Corbett at that practice. In 2017 he was given the diagnosis of fibromyalgia. He has not seen a specialist about this and is waiting to be seen at the RPH pain clinic. In addition he has been referred to a rheumatology clinic.
·He has done a lot of reading about fibromyalgia and understands there is an overlap between it and CFS.
·The symptoms are those of chronic tiredness plus widespread pain.
The Tribunal notes the report of Dr Corbett of 16 March 2018 states that the Applicant had been diagnosed with fibromyalgia on 2 February 2017 (R6).
The Tribunal notes the report of 4 April 2017 from Daniel Johanson, a physiotherapist, who stated “[i]t is likely that recovery will take up to 1-2 years with regular physiotherapy and exercise. I envisage his condition to improve strongly during this time” (T22 189) (R1).
The Tribunal notes the medical certificate of 24 April 2014 from Dr Corbett which states that current treatment for this condition was physiotherapy and analgesia and the planned treatment was ongoing physiotherapy and analgesia (T23 190) (R1).
The Tribunal notes the further medical certificate from Dr Corbett dated 4 August 2017 that states that current treatment for the condition of fibromyalgia include ongoing medication and analgesia and the planned treatment include waiting for an appointment with a pain specialist (T30 199) (R1). The Applicant confirmed this in his oral evidence.
Having considered the evidence before it, the Tribunal determines that this condition is fully diagnosed, but is not fully treated and stabilised for the purpose of the Qualification Period.
Depression
The Applicant told the AAT1 that (T2 11-12) (R1):
·He has suffered with depression on and off for much of his adult life since his mid-twenties. At various times he has had treatment with anti-depressant medication, stopping it once he felt better. Apart from a work-related problem he had not been referred to a psychologist or psychiatrist about these issues.
·Since the breakup of his de facto relationship he has been involved in family court disputes and has financial pressures. This had made him more depressed. His GP, Dr Corbett has put him on a permanent antidepressant, Cymbalta, and also referred him for psychological counselling. He sees Sahna Laarson and finds his sessions with her helpful. He has had six so far, funded through Medicare. He can have four more and they have decided to wait until the family court issues are resolved before resuming treatment.
AAT1 found (T2 12) (R1):
33.The tribunal is aware that for a mental health condition to be considered for an impairment rating, the diagnosis must be confirmed by a psychiatrist or clinical psychologist. The tribunal noted that Ms Laarson is a clinical psychologist. Her report confirmed the diagnosis of depression, but stated that Mr Brown was referred to her on 23 February 2017. This was after his DSP claim was lodged.
34.The tribunal determined that, at the time of the claim, the diagnosis of depression had not been confirmed by a psychiatrist or clinical psychologist. Even if the retrospective diagnosis is accepted treatment has only begun fairly recently and it is not possible to ascertain the success or otherwise of treatment. The condition is therefore not fully treated or fully stabilised. It attracts no impairment points.
The Tribunal notes the report of Dr Larson dated 19 January 2018 (A3) stating that the Applicant attended the following sessions – “6 April 2017, 3 May 2017, 11 May 2017, 31 May 2017, 28 June 2017 and 9 August 2017” (R5). The Tribunal also notes a report from Dr Larson dated 7 September 2018 describing the Applicant’s treatment regime (A4). The Tribunal finds this report to be useful, however, well outside the Qualification Period.
The Tribunal having considered the evidence before it finds this condition as fully diagnosed but not fully treated and stabilised for the purpose of the Qualification Period.
Conclusion
Whilst the Tribunal has found the conditions of osteoarthritis, fibromyalgia and chronic fatigue syndrome and depression to be fully diagnosed, none of these conditions have been found to be fully treated and stabilised. Therefore, the conditions are not permanent pursuant to subsection 6(4) of the Determination and no impairment rating can be assigned (subsection 6(3) of the Determination).
Whether the Applicant has a continuing inability to work
The Tribunal finds that the Applicant has a total of zero impairment points under the Impairment Tables and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider subsection 94(1)(c) of the Act.
For the sake of completeness however, should the Tribunal find that the Applicant satisfies paragraph 94(1)(b) of the Act, the Applicant would nevertheless fail to satisfy paragraph 94(1)(c) of the Act. Pursuant to subsection 94(3B) of the Act, the Applicant did not have a severe impairment and pursuant to subsection 94(3C) of the Act, the Applicant did not actively participant in a POS.
The Applicant lodged his application for DSP on 8 February 2017. To have actively participated in a POS, this must have occurred for 18 months in the 36 months prior to the date of the claim. There is no evidence before the Tribunal to indicate that this occurred.
On this basis, it is highly unlikely this application would have succeeded regardless of whether 20 impairment points were assigned.
DECISION
For the reasons given above, the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.

I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.........................[sgd]...............................................
Administrative Assistant Legal
Dated: 12 October 2018

Date of hearing: 2 October 2018

Applicant: In person

Representative for the Respondent: Ms A Zinn

Solicitors for the Respondent: Mills Oakley

[2018] AATA 3856

12 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	2 October 2018
Applicant:	In person
Representative for the Respondent:	Ms A Zinn
Solicitors for the Respondent:	Mills Oakley