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

[2019] AATA 903

Campbell and Secretary, Department of Social Services (Social services second review) [2019] AATA 903 (12 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/4263

Re:Daniel Campbell

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:12 February 2019

Place:Brisbane

The Tribunal affirms the decision under review.

..................................[SGD]...................................

Member D Mitchell

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs  [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447;  (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123

REASONS FOR DECISION

Member D Mitchell

12 February 2019

INTRODUCTION

1. On 8 November 2017, Mr Daniel Campbell (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1]

   [1] Exhibit 1, T-Documents, T 19, pages 110- 137, Incomplete Disability Support Pension claim form completed by Applicant.

2. The claim was rejected on 21 November 2017[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 4 April 2018.[3]

   [2] Exhibit 1, T-Documents, T 22, pages 154- 155, Centrelink Notice: Rejection of your claim for Disability Support Pension.

   [3] Exhibit 1, T-Documents, T 30, pages 175- 180, Decision and notes of Authorised Review Officer.

3. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). The SSCSD affirmed the decision of the ARO on 21 June 2018.[4]

   [4] Exhibit 1, T-Documents, T 2, pages 3-7, Decision of the Social Services & Child Support Division.

4. 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 23 July 2018.[5]

   [5] Exhibit 1, T-Documents, T 1, pages 1-2, Application for Review.

5. On 24 January 2019, a Hearing was held for this application. At the Hearing, the Applicant appeared in person, was self-represented and gave evidence under oath.

6. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.

   BACKGROUND

7. On the Applicant’s claim for DSP form he lists the following disabilities, illnesses or injuries:[6]

   ·Depression/PTSD/Grief

   ·Border line Bi Polar

   ·Personality disorder

   [6] Exhibit 1, T-Documents, T 19, page 124, incomplete Disability Support Pension claim form completed by Applicant.

8. On 15 November 2017 the Applicant’s application for DSP was assessed on the papers by a Department of Human Services Assessor, whose professional discipline is listed as Psychologist.[7]  The report titled Assessment Services Recommendation for Disability Support Pension medical eligibility recommended ‘Reject based on current and valid assessment’.[8] The recommendation was made after considering a Job Capacity Assessor Report conducted on 15 March 2016[9] and further material submitted by the Applicant.

   [7] Exhibit 1, T-Documents, T 21, pages 151-153, Assessment services recommendation for Disability Support Pension medical eligibility.

   [8] Exhibit 1, T-Documents, T 21, page 152. Assessment services recommendation for Disability Support Pension medical eligibility.

   [9] Exhibit 1, T-Documents, T 12, pages 82-92, Job Capacity Assessment Report.

9. On 21 November 2017, a decision was made to reject the Applicants DSP on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[10]

   [10] Exhibit 1, T-Documents, T 22, page 154, Centrelink Notice: Rejection of your claim for Disability Support Pension.

10. On 4 April 2018, an ARO affirmed the decision to refuse the Applicants DSP application having made the following key findings:[11]

    •     You claimed Disability Support Pension on 8 July 2017.

    •     Your conditions of chronic shoulder and neck pain, overactive thyroid and acute stress reaction on a background of post-traumatic stress disorder (PTSD) are not accepted as being permanent as they are not fully treated and fully stabilised.

    •     You do not have an impairment rating of 20 points or more.

    [11] Exhibit 1, T-Documents, T 30, page 176, Decision and notes of Authorised review officer.

11. On 7 February 2017, the Applicant sought review of the ARO’s decision. On 21 June 2018, the decision under review was affirmed by the SSCSD.[12]

    [12]  Exhibit 1, T-Documents, T 2, pages 3-7, Decision of the Social Services & Child Support Division.

    THE LAW

12. The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

13. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:

    1.    Does the applicant have a physical, intellectual or psychiatric impairment;[13]

    2.    Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[14] and

    3.    Does the Applicant have a continuing inability to work?[15]

    [13] Section 94(1)(a) of the Act.

    [14] Section 94(1)(b) of the Act.

    [15] Section 94(1)(c) of the Act.

14. The Impairment Tables are set out in the Determination which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:

    a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    b)are function based rather than diagnosis based; and

    c)describe functional activities, abilities, symptoms and limitations; and

    d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

15. Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[16] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[17] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[18]

    [16] Section 6(1) of the Determination.

    [17] Section 6(2) of the Determination.

    [18] Section 8(1) of the Determination.

16. Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[19]

    [19] Section 6(3) of the Determination.

17. In order for a person’s condition to be considered permanent the condition must:[20]

    a)have been fully diagnosed by an appropriately qualified medical practitioner;

    b)have been fully treated;

    c)have been fully stabilised; and

    d)more likely than not, in light of available evidence, to persist for more than 2 years.

    [20] Section 6(4) of the Determination.

18. To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered 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 planned in the next two years.[21]

    [21] Section 6(5) of the Determination.

19. A condition is considered to be fully stabilised if:[22]

    (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.

    [22] Section 6(6) of the Determination.

20. Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[23]

    [23] Section 6(7) of the Determination.

21. In selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; and identify the correct impairment rating.[24] In assessing impairments where a single condition causes multiple impairments. each impairment should be assessed under the relevant Table and. where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[25] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[26]

    [24] Section 10 of the Determination.

    [25] Sections 10(3) and (4) of the Determination.

    [26] Sections 10(5) and (6) of the Determination.

22. An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; and 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.[27]

    [27] Section 11(1) of the Determination.

23. In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which in summary requires that a person must:

    a.if they do not have a severe impairment, have actively participated in a program of support;

    b.be unable to work for at least 15 hours per week independently of a program of support; and

    c.be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

24. A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[28]

    [28] Section 94(3B) of the Act.

25. The Administration Act sets out the qualification for DSP. Assessment of the relevant impairment ratings is to be determined at the date of claim. Where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, the start date for DSP is the date the person becomes qualified.[29] 

    [29] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.

26. Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks following. Further medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[30]

    [30] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs  [2012] AATA 922  [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447;  (2014) 144 ALD 133, 139, [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, [25]-[28].

    Relevant Period

27. The Relevant Period in this matter commences on 8 November 2017, being the date the Applicant lodged his DSP application, and ending 13 weeks later on 8 February 2018.  The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.

    Issues

28. Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[31] The Respondent considers the Applicant’s impairments include mental health conditions,[32] neck and left shoulder condition[33] and hyperthyroidism.[34]

    [31] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, page 7, paragraph 39.

    [32] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, pages 8-9, paragraphs 40-54.

    [33] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, pages 9-11, paragraphs 55-57.

    [34] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, page 11, paragraphs 58-60.

29. The remaining issues for the Tribunal to consider are:

    1.Whether within the relevant period did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and

    2.If so, did the Applicant have a continuing inability to work?

    Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

30. At Hearing the Applicant gave evidence under oath and openly responded to questions from the Tribunal and cross examination from the Respondent.  I consider that the Applicant gave honest answers to the questions he was asked. I am left with little doubt that the Applicant suffers impairments due to the conditions outlined below and is focused on feeling well enough to return to work.

31. The present issue for the Tribunal is whether at or during the Relevant Period the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables.  A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[35] As such the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be likely to persist for more than 2 years.[36] 

    [35] Section 6(3) of the Determination.

    [36] Section 6(4) of the Determination.

32. The Respondent contends that the Applicant, at the time of his claim for DSP:

    Did not have any fully diagnosed, fully treated and fully stabilised conditions and as such his impairments did not attract an impairment rating of at least 20 points under the Impairment Tables. Paragraph 94(1)(b) of the Act is not satisfied; [37]

    [37] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, page 2, paragraph 13.

33. I will consider each of the Applicant’s impairments in turn.

    Mental health conditions

34. Based on the medical reports and the evidence provided by the Applicant at Hearing, there is no doubt that the Applicant has a mental health condition. However, the exact diagnosis of the mental health condition is not clear.

35. To be considered fully diagnosed Table 5 of the Impairment Tables, which relates to mental health, requires the diagnosis of a mental health condition be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[38]

    [38] The Determination, Table 5.

36. Dr Bailey, the Applicant’s General Practitioner, provided diagnosis and assessment of the Applicant’s mental health conditions in a number of medical certificates and reports during 2017 and 2018.  In summary Dr Bailey provided:

    -Centrelink Medical Certificate dated 9 February 2017 -  lists diagnosis as ‘Depression, anxiety, ?personality Disorder ?PTSD’, classifies the condition as ‘temporary’, ‘likely to persist’ and lists treatment as ‘has been referred to psychologist but already missed appointment. Poor engagement, distrust of services’[39]
    
    

    -Centrelink Medical Certificates dated 18 September 2017[40], Undated[41]  – period of reference 18 October 2017 to 18 December 2017 and 24 May 2018[42] – lists diagnosis as ‘depression, Not in right mental state to work, ?borderline personality disorder – await psych opinion’, classifies the condition as ‘Exacerbation of existing condition’, likely to persist, advises ‘has engaged with psychologist – she is doing report for you’ and lists treatment as ‘Had stopped medication, restart avanza, now committed to engaging with psychologist, apt made for this week hopefully’.
    
    

    -Report dated 27 October 2017 – [Applicant] has ongoing moderately severe mental health issues, is undergoing evaluation from a and 'hopefully will be referred to a psychiatrist for formal diagnosis ?borderline personality disorder or element of bipolar affective disorder.[43]
    
    

    -Report dated 14 May 2018 - ‘has pretty clear personality disorder with currently threatening suicide on a regular basis’, ‘needs a psychiatry assessment to make more formal diagnosis to help with his claim and would appreciate a 291 assessment please’.[44]

    [39] Exhibit 1, T-Documents, T 13, page 93, Medical certificate completed by Dr Jonathan Bailey.

    [40] Exhibit 1, T-Documents, T 20, pages 138-150, Early release of superannuation on compassionate grounds form completed by Dr Jonathan Bailey with attached medical reports and SunSuper correspondence.

    [41] Exhibit 1, T-Documents, T 15, pages 96-97, Undated medical certificate completed by Dr Jonathan Bailey.

    [42] Exhibit 1, T-Documents, T 35, pages 188, Medical certificate completed by Dr Jonathan Bailey.

    [43] Exhibit 1, T-Documents, T 16, page 98, Medical report authored by Dr Jonathan Bailey.

    [44] Exhibit 1, T-Documents, T 33, pages 184-185, Medical report authored by Dr Jonathan Bailey.

37. At Hearing, the Applicant told the Tribunal that he did not ask Dr Bailey for a diagnosis and that his discussions with Dr Bailey about his mental health were limited as he had already seen Psychologist, Dr Rachel Wheeler.  The Applicant advised that he had never received reports from Dr Wheeler and that he had seen her 3 or 4 times. Further the only time he had seen doctors for his mental health was when he went to the Gold Coast Hospital. The Medicare Patient History Report shows 6 appointments with Dr Wheeler between 1 February 2017 and 26 October 2017.[45]

    [45] Exhibit 6, Medicare and Pharmaceutical Benefits Scheme claims history, page 1.

38. On 1 November 2017, the Applicant was admitted to the Gold Coast Hospital and in a Discharge Report dated 4 November 2017, it lists the Summary Author as Registrar Dr Maxwell Sanson (Psychiatry Registrar) and notes the Consultant as Dr Deepak Garg (Psychiatrist). The Discharge Report notes that the Applicant presented due to an acute crisis. A principle diagnosis was listed as ‘acute stress reaction on a background of PTSD’ and ‘dysocial personality structure and significant anger and affect regulation issues’. The Applicant was encouraged to keep taking his prescribed medication until reviewed by a psychiatrist.[46]

    [46] Exhibit 1, T-Documents, T 17, pages 99-103, Gold Coast Hospital discharge summary.

1. In a report dated 30 April 2018, Psychologist Dr Leshay Tate advised that the Applicant reported to the Robina Emergency Department on 22 April 2018 and was unwilling to participate in mental health assessment. Dr Tate did not identify any acute mental health or risk concerns.[47]

   [47] Exhibit 1, T-Documents, T 31, pages 181-182, Medical report authored by Leshay Tate.

2. In a report dated 6 July 2018, undertaken for the purposes of providing a medico-legal report, Consultant Psychiatrist Dr Elsa Yeung provided the following diagnosis:

   Currently, he is suffering from major depressive disorder, recurrent, of chronic and moderate severity and the current episode possibly dated back to at least 2014 onwards. He presented with low mood, anhedonia, poor concentration, poor sleep. He also presented with anxiety symptoms such as panic attacks. He has borderline personality disorder. He has significant issues with abandonment and rejection. He has emotion dysregulation problem and distress intolerance. He can become very angry quickly. [48]

   [48] Exhibit 3, Medical report of Dr Elsa Yeung, page 6.

3. Dr Yeung further opined that:

   It appears that he has had some treatment but it is unclear to me whether he has had treatment for his underlying personality disorder. He had some antidepressant treatment before and I am uncertain what antidepressant has been useful for him.

   I do not think he would qualify the diagnosis of PTSD. He described experiencing abusive relationships. He is not describing any nightmares, flashbacks in relation to those traumas that he experienced.

   Mr Campbell has stopped all his medication in March 2018. I believe he would need to be managed under a psychiatrist, a psychologist, as well as be on medication. [49]

   [49] Exhibit 3, Medical report of Dr Elsa Yeung, page 6.

4. Dr Yeung notes that the Applicant self-reported that he had ceased taking Avanza in March 2018, had never taken Epilim, only took olanzapine briefly in November 2017, does not take any painkillers, does not see a psychologist and had never seen a treating psychiatrist.[50]

   [50] Exhibit 3, Medical report of Dr Elsa Yeung, page 3.

5. In relation to future treatment Dr Yeung opined that she believes the Applicant needs to see a psychiatrist and would benefit from dialectical behaviour therapy and pharmacology.[51]

   [51] Exhibit 3, Medical report of Dr Elsa Yeung, page 7.

6. The Applicant told the Tribunal that he had only spoken to Dr Yeung for an hour and that he has never sat down with a psychiatrist to get a diagnosis.

7. The Respondent contends that the Applicant’s mental health conditions are not fully diagnosed, on the basis that no diagnosis has been made by a psychiatrist or clinical psychologist during the Relevant Period to support the diagnosis of Dr Bailey.[52]  At the Hearing the Respondent acknowledged that Dr Garg, who saw the Applicant during his November 2017 admission to the Gold Coast Hospital, is a Psychiatrist however their contention remained unchanged.  The Respondent also noted that the later diagnosis of Dr Yeung of major depressive disorder and contends that this diagnosis is not referrable to the Relevant Period as Dr Yeung first saw the Applicant some 7 months after the Relevant Period.[53]

   [52] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, paragraph 50. 

   [53] Exhibit 2. Respondent’s Statement of Issues, Facts & Contentions, paragraph 51.

8. Further, the Respondent contends that the Applicant’s mental health conditions were not fully treated or fully stabilised during the Relevant Period.[54]  The Respondent contends:

   …. that the Applicant had not undertaken reasonable treatment for his mental health conditions as at the qualification period. There is no evidence the Applicant had engaged with a psychologist or psychiatrist, participated in a sustained course of psychotherapy, review or undertaken an appropriate trial of anti-depressant medication, having failed to commence, or persist with, medication prescribed by his GP. [55]

   [54] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, paragraph 52-53.

   [55] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, paragraph 54.

9. During cross examination, the Applicant agreed that his mental health condition had never been fully diagnosed and that he has not received the treatment required to stabilise the condition. The Applicant stated that he had not taken medication since March 2018 as they are dangerous drugs which are not managed or reviewed.

10. Based on the medical evidence before the Tribunal and the evidence provided at the Hearing by the Applicant, whether the Applicant’s mental health condition can be considered fully diagnosed during the Relevant Period is somewhat ambiguous.  As seen from the evidence set out above, the overall diagnosis changes between medical practitioners. Further, the Applicant himself does not consider that he has ever been formally diagnosed.

11. Although it may be argued that the diagnosis outlined in the Discharge Report dated 4 November 2017 was made by a psychiatrist, it does not fully support the diagnosis of Dr Bailey and made reference to the Applicant being reviewed by a psychiatrist.  Further, Dr Yeung made reference to major depressive disorder with the current episode possibly dating back to 2014; however, she does not otherwise give any consideration to the Applicant’s condition as during the Relevant Period. On the balance, I find that the Applicant’s mental health condition was not fully diagnosed during the Relevant Period.

12. In considering whether the Applicant’s mental health condition was fully treated and fully stabilised during the Relevant Period the medical evidence, and that provided by the Applicant at the Hearing set out above, clearly shows that during the Relevant Period the Applicant has not been engaged, or consistently engaged, in the recommended treatments.  The Applicant has not been fully engaged in taking prescribed medication nor did he fully engage in treatment with a psychologist or psychiatrist.

13. I accept the Applicant’s evidence at the Hearing that it has been difficult for him to engage with mental health practitioners.  However, based on the evidence provided by the Applicant at Hearing and the medical evidence before the Tribunal I find that the Applicant’s mental health condition was not fully treated and fully stabilised during the Relevant Period.

14. Even if I am wrong in finding that the Applicant’s mental health condition was not fully diagnosed during the Relevant Period as I have found that the Applicant’s mental health condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the mental health condition.

    Neck and shoulder condition

15. In a Centrelink Medical Certificate dated 18 September 2017, Dr Bailey diagnosed “Shoulder pain chronic since 2012”, with the prognosis of “Likely to show considerable improvement within 2 years”.[56]  Dr Bailey repeated this view in an undated Centrelink Medical Certificate which referred to the period 18/10/17 to 18/12/17 inclusive.[57]

    [56] Exhibit 1, T-Documents, T 20, page 142, Early release of superannuation on compassionate grounds form completed by Dr Jonathan Bailey with attached medical reports and SunSuper correspondence.

    [57] Exhibit 1, T-Documents, T 15, page 97, Undated medical certificate completed by Dr Jonathan Bailey.

16. The following evidence was provided in relation to imaging and ultrasounds undertaken of the Applicant’s neck and left shoulder:

    -    A report dated 6 August 2014 from Dr Dalziell provided that an x-ray, ultrasound and CT investigation showed generalised spondylosis, main change being disc space narrowing at the C/4 level and a mild degree of bilateral exit canal narrowing and a tear of the supraspinatus tendon, with thickening of the sub-deltoid bursa.[58]
    
    

    -    A report dated 28 November 2017, Dr Burgin provides that an MRI showed cervical degenerative changes, moderate left C3/C4, mild left C4/C5 and moderate left C6/C7 foraminal stenosis with likely left C4 and C7 nerve root compromise.[59]

    [58] Exhibit 1, T-Documents, T 11, page 80, X-ray, ultrasound and CT test results and findings.

    [59] Exhibit 1, T-Documents, T 24, pages 158-159, MRI cervical spine test results and findings.

17. In a report dated 18 December 2017, Dr Bailey reported that the Applicant was unable to work with ‘his chronic shoulder and neck pain under investigation for treatment options under the neurosurgeons as below…”.[60] In the report Dr Baily lists current conditions as “14/11/2016 pain; shoulder” and in addition to the imaging results above provides:

    Tendinopathy at the rotator cuff with prominent subacromial bursitis, amenable to ultrasound guided HCLA injection if considered clinically appropriate.[61]

    [60] Exhibit 1, T-Documents, T 25, page 160, Medical report authored by Dr Jonathan Bailey.

    [61] Exhibit 1, T-Documents, T 25, page 160, Medical report authored by Dr Jonathan Bailey.

18. In a GP Management Plan dated 2 March 2018, Dr Bailey lists the Applicant as having “Chronic neck pain/cervical vertebrae narrowing. Reduced ROM, spasm and tension” with the goal of “Minimize symptoms, Reduce pain, Improve ROM, Reduce flare ups”.[62]  The required treatment and arrangement for treatment were listed as:[63]

    [62] Exhibit 1, T-Documents, T 27, page 164, GP management plan with attached radioiodine treatment details.

    [63] Exhibit 1, T-Documents, T 27, page 164, GP management plan with attached radioiodine treatment details.

Required treatments and services including patient actions

Arrangements for treatments/services (when, who, and contact details)

Awaiting neurosurgeon r/v, assessment and advice on treatment options.

Neurosurgeon – GCUH, patient arranges appointments

Referral to physiotherapist for assessment, treatment to alleviate pain, tension, education re condition and exercises/stretches and manage symptoms.

T Kazama, Miami, pt arranges appointments

Ph: [provided]

GP maintains regular contact with patient to ensure adherence to treatment regime.

GP Jonathan Bailey - Miami

Monitors pain management, patient aware of daily management, aware of triggers and limitations.

GP liaise with specialist and allied health.

1. In a report dated 24 July 2018, undertaken for the purposes of providing a medico-legal report, Dr Blair Christian diagnosed that:

   Mr Campbell has chronic mechanical neck and left (non-dominant) shoulder pain.

   His neck pain likely relates to degenerative changes seen at the spine, most

   particularly C3/4 and C6/7, contributed to also by significant degree of physical

   deconditioning. The left shoulder pain is likely contributed to by a degree of bursal

   thickening, physical deconditioning, and possibly referred pain from the cervical

   spine.[64]

   [64] Exhibit 4, Medical report of Dr Blair Christian, dated 24 July 2018, page 5.

2. Based on the reports from Dr Bailey and Dr Christian, I am satisfied that the Applicant’s neck and shoulder condition was fully diagnosed at the Relevant Period.  The Respondent does not dispute this finding.[65]

   [65] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, page 10, paragraph 55.

3. However, the Respondent contends that the condition was not fully treated or fully stablished during the Relevant Period providing that:

   As there is no evidence of past treatment, and the Applicant, at the time he claimed DSP, had only just been referred for a surgical evaluation of his cervical spine and left shoulder conditions, the Secretary contends that the neck and left shoulder pain was not fully treated and stabilised at the end of the qualification period. As such, the impairments arising from this condition cannot be assigned an impairment rating. On the basis that there is no medical evidence of what past treatment, if any, has been undertaken by the Applicant for his neck pain or should tear prior to the Relevant Period and his referral for surgical evaluation was recent.[66]

   [66] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, page 11, paragraph 57.

4. The Gold Coast Hospital discharge summary, dated 4 November 2017, refers to “Internal Neurosurgical Outpatient referral sent”.[67] The Applicant subsequently received a letter, dated 10 November 2017, from the Outpatient Services Gold Coast University Hospital acknowledging receipt of referral for the Neurosurgery Clinic and having reviewed the information regarding the condition assessed him as Category 2.[68]

   [67] Exhibit 1, T-Documents, T 17, page 102, Gold Coast University Hospital discharge summary.

   [68] Exhibit 1, T-Documents, T 20, page 150, Early release of superannuation on compassionate grounds form completed by Dr Jonathan Bailey with attached medical reports and SunSuper correspondence.

5. The Applicant gave evidence at the Hearing that he is still awaiting a specialist appointment.

6. In the report dated 24 July 2018, Dr Christian relevantly noted the Applicant’s self-report that:

   Mr Campbell has trialed physical therapy. He found acupuncture and manipulation do not lead to any marked improvement in pain. Mr Campbell has trialed pain relief, without significant benefit. Mr Campbell has decided to avoid regular pain medication. Mr Campbell is not undertaking any current active treatment program.[69]

   [69] Exhibit 4, Medical report of Dr Blair Christian, dated 24 July 2018, page 3.

7. Dr Christian further opined that:

   Without further treatment or rehabilitation, Mr Campbell's neck and shoulder pain is unlikely to improve. I recommend surgical assessment, with a view as to whether surgical treatment would be of benefit. If this is not thought appropriate, or does not go ahead, then referral for a multidisciplinary pain management program, incorporating a careful supervised physical conditioning program, would be of benefit. In that situation there is likely to be improvement in Mr Campbell's physical capacity towards full-time work.[70]

   [70] Exhibit 4, Medical report of Dr Blair Christian, dated 24 July 2018, page 9.

8. At Hearing, the Applicant gave evidence that, although he had been told to take pain medication, he had never taken pain medication; however, he had tried physiotherapy, acupuncture and stretches for pain management with limited benefit. He reported that he can pick up objects both light and heavy; however, then ‘suffers for a week’. The Applicant advised that he had, through Maxx Employment, undergone a work program, aggravating his neck and shoulder condition and subsequently went back to paid employment as a delivery driver.  He was unable to sustain this work due to the lifting and turning involved.  It was clear that the Applicant is frustrated with his current situation.

9. Based on the medical evidence before the Tribunal, and the evidence provided at Hearing by the Applicant, I find that the Applicant’s neck and shoulder condition was not fully treated and fully stabilised during the Relevant Period as he was not actively engaging with any pain management treatment and had not yet been seen by a specialist to put in place a future treatment plan. 

10. As I have found that the Applicant’s neck and shoulder condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Thyroid condition

11. In the medical evidence before the Tribunal, the Applicant’s spinal canal stenosis is first mentioned in the Centrelink Medical Certificate completed by Dr Saleh on 24 May 2016. Dr Saleh did not provide a date of onset and provided that past and current treatment was ‘nil’ with.

12. In an undated Centrelink Medical Certificate, which referred to the period 18/10/17 to 18/12/17 inclusive, Dr Bailey provided “overactive thyroid just diagnosed”. No prognosis or date of onset were provided, symptoms were listed as ‘Agitated, weight loss, sweats’ and it was noted that the Applicant had “started treatment for thyroid – carbimazole”.[71]

    [71] Exhibit 1, T-Documents, T 15, page 97, Undated medical certificate completed by Dr Jonathan Bailey.

13. In a report dated 27 October 2017, Dr Bailey made reference to a “recent diagnosis of thyroid problems also just commencing treatment”.[72]

    [72] Exhibit 1, T-Documents, T16, page 98, Medical report authored by Dr Jonathan Bailey.

14. The Applicant underwent an ultrasound on his thyroid in November 2017. [73] In a report dated 18 December 2017, Dr Bailey provided “Large, 30mm left hemi thyroid nodule, which in this demographic warrants fine needle aspiration to prove benignity.  No further concerning changes at the thyroid.”[74]

    [73] Exhibit 1, T-Documents, T 23, pages 156-157, Ultrasound thyroid and left shoulder test results and findings.

    [74] Exhibit 1, T-Documents, T 25, page 160, Medical report authored by Dr Jonathan Bailey.

15. On 21 March 2018, the Applicant completed an ‘Iodine-131 Therapy for Hyperthyroidism’ consent form which outlined that the treatment uses radioactive iodine, which is taken up and concentrated within the thyroid gland to damage the gland and stop its overactivity.[75] The treatment was administered on 3 April 2018 by Dr Huang at the Gold Coast University Hospital.[76]

    [75] Exhibit 1, T-Documents, T 28, pages 167-171, Consent form and fact sheet for Iodine-131 therapy.

    [76] Exhibit 1, T-Documents, T 27, pages 166-168, GP management plan with attached radioiodine treatment details.

16. Based on the medical certificates from Dr Bailey and subsequent treatment of the Applicant’s thyroid condition, I am satisfied that the condition was fully diagnosed during the Relevant Period.

17. The Respondent contends that that the Applicants thyroid condition was not fully treated or fully stablished during the Relevant Period.[77]

    [77] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, page 11, paragraph 59- 60.

18. At Hearing the Applicant gave evidence that his thyroid had been a concern for 8 years and confirmed that he received the Iodine Therapy in April 2018.  The Applicant gave evidence that the condition was now ‘fixed’ and he was back to his normal body weight.

19. Based on the medical evidence before the Tribunal I find that the Applicant’s thyroid condition was not fully treated and fully stabilised during the Relevant Period and was unlikely to cause an impairment that would continue for more than 2 years, as the condition was only newly diagnosed and was resolved with treatment within 12 months of the diagnosis. 

20. As I have found that the Applicant’s thyroid condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Continuing inability to work

21. As I have found that the Applicant does not have a total of 20 impairment points either on one table, or cumulative across multiple tables, there is no need to consider whether the applicant met the requirements of section 94(1)(c) of the Act.

    CONCLUSION

22. I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

23. I find that the Applicant’s mental health condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period. Therefore, the condition could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

24. I find that the Applicant’s neck and shoulder and thyroid conditions were fully diagnosed however were not fully treated or fully stabilised during the Relevant Period. Therefore, the condition could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

25. I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.

26. Accordingly, the decision under review is affirmed.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..................................[SGD]......................................

Associate

Dated: 12 February 2019

Date of Hearing:	24 January 2019
Applicant:	In Person
Advocate for the Respondent:	Andrew Summers