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

Ciullo and Secretary, Department of Social Services (Social services second review) [2020] AATA 4534 (9 November 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7221
Re:Antonio Ciullo
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:09 11 2020
Place:Adelaide

The decision under review is affirmed.
............................[sgnd].........................................
Senior Member B J Illingworth
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94.
Social Security (Administration) Act 1999 (Cth).
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014 s 6 (6).
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011.
REASONS FOR DECISION
Senior Member B J Illingworth
06 11 2020
Introduction

On 11 September 2018 Mr Ciullo (“the Applicant”) lodged a claim for the disability support pension (“DSP”) with the Department of Human Services (“Centrelink”). He listed his medical conditions as diabetes, chronic low back pain, vitamin D deficiency, major depression with suicidal ideation, hepatitis C (in remission), fatty liver with early cirrhosis, swollen hand and osteoarthritis.
On 16 October 2018 an employee of Centrelink rejected the Applicant’s claim for DSP on the basis that he did not attract the requisite 20 points on the Impairment Tables referred to in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011 (“the Determination”). The Applicant sought internal review of that decision.
On 24 April 2019 an Authorised Review Officer (“ARO”) affirmed the decision. The ARO said that the Applicant suffered from low back pain, diabetes, osteoarthritis, depression and osteoporosis but these conditions were not fully diagnosed, fully treated and fully stabilised (“FDTS”) and thus did not attract 20 points on the Impairment Tables. The ARO also said that the Applicant’s condition of liver cirrhosis was FDTS, however he did not suffer from an impairment that attracted a point rating on the relevant table. The ARO decided that the Applicant’s medical conditions therefore attracted 0 points and accordingly he did not qualify for DSP.
On 23 July 2019 the Applicant lodged an application for review of the ARO’s decision which was heard by the Tribunal (“AAT1”) on 19 September 2019. The AAT1 made the following findings with respect to the following conditions:
·lower back pain – Table 4 – FDTS– five points;
·anxiety and depression – Table 5 – not FDTS and no evidence from a clinical psychologist or psychiatrist;
·liver cirrhosis – function within normal limits – not entitled to any impairment points; and
·hand osteoarthritis – no significant impairment – not entitled to any impairment points.
Hence the AAT1 decided the Applicant’s total impairment rating was five points and therefore he did not satisfy s 94 (1) (b) of the Social Security Act 1991 (“the Act”) and did not qualify for DSP.
On 6 November 2019 the Applicant filed an application for extension of time and application for review of the AAT1 decision. The Tribunal granted an extension of time and so the application for review came before the Tribunal.
The Applicant appeared and gave evidence by telephone. The Respondent was represented by Mr Alex Chan of Sparke Helmore Lawyers.
Issues
For the Applicant to qualify for the DSP he must satisfy the provisions of s 94 of the Act namely that;
(a)he has a physical, intellectual or psychiatric impairment(s) for the purposes of s 94 (1) (a) of the Act; and
(b)that his impairment(s) attracts a rating of 20 impairment points according to the Impairment Tables referred to in the Determination; and
(c)that he has a continuing inability to work; and
(d)that if he does not have a severe impairment which is defined as a score of 20 points pursuant to a single Table, the Applicant must have actively participated in a program of support in accordance with the Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the POS Determination”), namely, that he participated in the program of support for a period of at least 18 months within the 36 months prior to the claim for DSP being lodged.
Impairment ratings are to be assessed having regard to the Impairment Tables which are found in the Determination. Those Tables contain instructions for assessing impairments with respect to nominated conditions. Those conditions must be permanent resulting in functional impairment, must be diagnosed by an appropriately qualified medical practitioner and there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.
A permanent condition is one that, pursuant to Schedule 2 of the Social Security (Administration) Act 1999 (“the Administration Act”) has been FDTS as at the date of the claim, namely 11 September 2018 or up to 13 weeks thereafter (“the Qualification Period”). The Qualification Period in this matter is 11 September 2018 to 11 December 2018. For the condition to the “fully stabilised” pursuant to s 6 (6) of the Determination means that it will be unlikely that there will be any significant functional improvement in the condition, with or without reasonable treatment, within the next two years of the date of claim.
The Respondent maintains in the Statement of Facts, Issues and Contentions that the Applicant had not complete a program of support nor did he satisfy any exemption from the obligation of completing the program as at the date of the filing of his application for DSP. Accordingly, to demonstrate a continuing inability to work the Applicant must demonstrate that he has a severe impairment in respect of any one condition attracting 20 points or more under a single Impairment Table.
The Secretary accepts that the Applicant suffered from both physical and psychiatric impairment and that s 94 (1) (a) of the Act is satisfied. The Tribunal agrees. Hence the issues in dispute are whether the Applicant’s conditions were FDTS, and that he had a severe impairment rating in respect of any one condition so as to attract an impairment rating of at least 20 points, and whether he had a continuing inability to work (“CITW”).
The Applicant’s Evidence
The Applicant was born in Italy in 1965 and is approximately 55 years of age. He has been living in a de facto relationship for 20 years. He has three children and two stepchildren.
Lumbar spine
He first had trouble with his lower back following a motor vehicle accident when aged 21 years. He had a motor vehicle compensation claim and was then seeing several specialists for his back condition. He received a compensation payout. His back now aches all the time.
The Applicant worked in the demolition industry. He was a foreman working for a company and hence there was not too much physical work required. The company ceased business in about 1985 and since then he has been in and out of work. He has helped people with demolition work but found the work difficult and now he cannot perform that work. The Applicant said he was not a very reliable workman. One day he would be all right and the next day he would be no good. He ended up getting into drugs to deal with the back pain. He has subsequently been on a methadone program to deal with his drug addiction.
This condition has worsened over the last 25 years and will flare up more easily if he twists the wrong way. If that occurs, he has difficulty moving. He said one side of his back was lower than the other.
In the last five years the Applicant has been to both the Royal Adelaide Hospital and the Queen Elizabeth Hospital for physiotherapy treatment. The last medical specialist he saw was at the Royal Adelaide Hospital who recommended that he not have an operation. This was in December 2019, but he does not remember the specialist’s name.
At the time of filing his application for DSP in September 2018 he said his back was not good. It hurt all the time and he could only walk a limited distance, about 30 feet, before stopping and holding onto something or sitting down. On a good day he would walk further, namely about half a street block (100 feet) and then he had to sit down and rest. He said he was doing less and less. He would not go into the garden. He did not go shopping. His partner did all the shopping. He said he would go for a drive to see his sister who lived about 20 minutes away. He would drive on such occasions and his back would not be too bad. In respect of his day to day functions he was able to get dressed, and he wears thongs because he cannot get shoes and socks on. He said it was hard to shower and bend over. Twisting was not too bad if he did not do it quickly. If too quick he would suffer a sharp pain in his back.
The Applicant has grandchildren who reside in Western Australia now aged nine, seven and twins aged one year old. He has not seen the two older grandchildren for about four years and at that time he could not pick them up and play with them. He could play sitting on the ground.
He said his pain comes and goes. He described the pain as a sharp knife in his back. He noticed 30% to 40% improvement in his condition during summer. His condition is worse during the cold months. He puts a heat pack or a Vietnamese cream on his back which helps, and he will also step outside to get sunlight on his back.
The Applicant uses a walking stick about 70% of the time and particularly when his back condition is troubling him. When he is feeling better, he tries not to use the walking stick so he can strengthen his back.
The Tribunal referred the Applicant to the report of Dr Vu dated 11 September 2018 in which the doctor reports “Antonio is pending surgery for further management of low back”[1]. The Applicant said he was at that time wanting to have that operation performed, but last year his daughter’s friend had back surgery and contracted golden staph infection. He feared having the operation and as a result he told Dr Vu that he did not want the surgery. He also said that facet joint injections did not work for his brother-in-law.
[1] T63, page 381.
In cross examination the Applicant was referred to the report of Dr Sanjay Prabhu of the Pain Management Unit at the Royal Adelaide Hospital dated 1 August 2013[2]. Dr Prabhu referred to a 2012 CT scan of the lumbar spine which demonstrated facet joint changes, disc bulge and some nerve root impingement. In reporting his examination, Dr Prabhu said the Applicant’s gait was normal and lumbar range of movement was good but limited by pain. He had multiple areas of tenderness over his lower back. Under heading ‘Impression’ he said the Applicant suffered non-specific low back pain with some facet joint disease and referred to a history of intravenous drug abuse and illicit drug use. Under heading ‘Recommendation’, he reported:
“In view of some features of neuropathic pain, I mentioned to him about starting Lyrica, and also trying some facet joint injections and possibly a Norspan patch. However, on mentioning this he became angry and furious, requesting nothing but just the Oxycontin which he was getting from his general practitioner. He was not willing to take any further advice from me. In view of this, I do not think we will have much to offer him regarding his treatment.”
[2] T37, pages 329 – 330.
The Applicant could not remember consulting Dr Prabhu nor what treatment was recommended. He could not remember generally, what was happening in 2013. He repeated that he did not like injections. He repeated that his brother-in-law had a bad experience. He said his brother-in-law went for that procedure and is now worse, spending his time on his lounge. He said he would be crazy to have a back operation and he was not going to finish up in a wheelchair. He now has patches which helps but that does not fix his condition.
Counsel for the Respondent asked about his functional capacity at the time of the claim and Qualification Period. He was asked about his capacity to function above head height. The Applicant said it depends on the weight of the object but agreed that he could remove a book from a shelf that was above head height but that did not mean he could do it every day. He then became angry and said he was not a cripple and did not know why he was being asked stupid questions. The Tribunal explained to the Applicant the purpose of the questions, their relevance to an assessment on the tables, and asked that he respond to the appropriate questioning by Counsel.
The Applicant said there were a lot of things he could not do any more. On some days he could bend to knee level and straighten up but other days he could not. He could turn his head to left and right but with pain. He often required assistance getting out of a chair and would be assisted by his partner or use the walking stick or push himself up with his arms.
The Applicant said that he could sit for about 15 to 20 minutes and then he had to move. He prefers to lay down rather than sit. Driving for about 20 minutes was okay but on occasions he might stop halfway or change position of the backrest in the car.
The Applicant was referred by counsel to the Job Capacity Assessment Report (“JCA”) which reported that he sat for 40 minutes when interviewed. The Applicant agreed he sat in a chair without arms, but said he was moving around or shifting weight from one side to the other. He said he was uncomfortable for the 40 minutes and was also uncomfortable while sitting in the waiting room before the consultation.
Anxiety and Depression
The Applicant said he started to suffer from anxiety and depression for about the last 1½ to 2 years. This he said, started as a result of his engagement with Centrelink and all the medical practitioners. He said that everywhere he went people would not do the paperwork for him and this frustrated him. He does not have much patience with people, and he gets angry very quickly. He does not like conversation and does not like to be around people. He said that he cannot turn on the computer and he is not proficient with technology.
At the time of the Qualification Period he was frustrated and only seeing his general practitioner Dr Vu to deal with his condition. He was placed on medication which initially helped but then his condition deteriorated, and he ceased that medication. He then said this all occurred in 2019. He said he has not seen a psychiatrist or clinical psychologist; he has rung up a lot of places and been on a waiting list for 2 two years.
The Tribunal therefore raised with the Applicant reference in the Disability Support Pension Medical Assessment Recommendation in respect of an assessment by an occupational therapist on 19 September 2018[3]. The author reported that the Applicant “had intervention in the form of counselling from the GP and a Clinical Psychologist SH”. It was at that point of the hearing, and before cross-examination, that he became angry and hung up the telephone.
[3] T20, pages 187 – 188.
The Tribunal was able to reengage with the Applicant by telephone and the proceedings continued.
He could not assist the Tribunal with the nature and extent of treatment he had received for this mental health condition at the time of his DSP application nor during the Qualification Period. He did not know who SH was. There was no report or evidence from a psychiatrist or clinical psychologist relevant to that period or before. The Tribunal did receive a psychiatric report from Dr Okungu dated 27 December 2019 to which I will refer later, but that did not assist the Tribunal[4]. It was not relevant to the Applicant’s mental health condition at the date of the DSP claim or the Qualification Period.
[4] Exhibit C.
In cross examination the Applicant was asked to describe a typical day as at the date of his claim. He said he would wake up at about 11.00 a.m. He would then lay there until about 1.00 p.m. – 2.00 p.m. He might get up and have a shower, but he does not shower regularly anymore because it is uncomfortable, and he has back pain. He did not like calling people for assistance. He had a lot of frustration. He did not go out to social activities and did nothing with his partner. The only time he left his house was to go to Centrelink or his doctor. He visited his sister no more than twice in the preceding 12 months. He does not see other members of his family. The Applicant said he did not have the patience to read books. He watches a lot of television, predominantly documentaries and news programs, for most of the day. He lays down to watch television.
The Applicant said that in 2018 he was consuming alcohol. He went on a binge on one occasion after not drinking for a long time. He was consuming about a carton of beer a day for about a month and wanted to end his life, but he snapped out of that and stopped. He could not say when in 2018 that occurred.
The Applicant said he previously took drugs, namely heroin, 25 years ago. It took away the pain immediately, and he was able to go to work. He was not consuming drugs in 2018.
Cirrhosis of the liver
The Applicant said that his stomach hurts all the time and that he has no energy. He sleeps in a lot. He has seen a specialist who was monitoring the condition. He had to cancel his last appointment because of the COVID-19 epidemic. It was a combination of things that contributed to his lethargy.
In cross examination the Applicant said his stomach feels empty and he suffers sharp pains. He is tired all the time and has no energy to do things. There are no stairs in his home. He sometimes goes to Foodland with his partner. It is a 20-minute walk from his home, so they usually drive. He does not do the gardening or vacuuming and does not use public transport.
The Applicant said that he will sometimes suffer shortness of breath and cardiac pain which would start about 10 minutes after walking. He did not know the cause of that complaint.
Diabetes
The Applicant said that he currently takes medication for his diabetic condition which he was taking at the time of his application for DSP and during the Qualification Period. His dosage has increased since that time.
The Applicant was referred to his JCA dated 16 October 2018 which was during the Qualification Period. His blood sugar was not then well controlled. He said that the dosage was not working, and it was therefore increased. He did not know if, in the future, he would have to transition to injections to treat his condition.
The Applicant could not recall seeing an endocrinologist for his diabetes at the time of his application for DSP. He said that he recalled going to a place at Grand Junction Road, but they lost his referral letter.
Osteoarthritis in both hands
The Applicant said that these conditions were caused years ago by jackhammering. He also now suffers ringing in his ears.
He could not remember the name of the specialist medical practitioner to whom he was referred. It had been a couple of years since he had the condition. The Applicant described his medical treatment as overwhelming for his treating doctor Dr Vu. As he tries to fix one condition something else arises.
The Applicant said in 2018 his hands were sore and swollen. His right hand was worse than his left. He had X-rays at the time. The Applicant described difficulty writing and being right-handed, his hand cramped when writing. He would write his name; his hand would cramp, and he would drop his pen. The condition worsened in 2019 and he went to hospital. There was blackening at the end of his fingertips which he said was removed but not tested. He said that they looked down on him because he used to be a heroin addict. His fingers now feel funny. He said the end of his fingertips were deformed but he did not know the cause.
Evidence of Mrs DLE

Mrs DLE has been with the Applicant for 20 years and they have three children aged 17, 22 and 20 years of age. She has two older children from a previous relationship.
She said that the Applicant was always suffering from back pain. There was a period for a month where he could not move, and she had helped him do everything. He uses a walking stick 70% of the time and he could not walk very far. Other than going to his medical appointments, he does not like to leave the house.
Mrs DLE said that the Applicant’s appointments included the Queen Elizabeth Hospital about 5 km away from their home, job prospector which was 2 km up the road and his doctor who was about 1 km up the road. The Applicant always drove to these appointments and occasionally she would go with him. He has a sister who lives 20 km from their home whom he visits once or twice a month. They are social visits and she does not go with him. He drives to and from those visits and is usually gone about an hour.
Mrs DLE said that most of the time the Applicant was depressed and since the Qualification Period his condition has worsened. He is very moody all the time and gets angry quickly. She described her life as just bearable.
Mrs DLE does the shopping and pays the bills. The Applicant will sometimes come with her to the shops, but he sits in the car. These are the occasions when she will drive.
Mrs DLE said that they do not do things socially anymore and this all started about three years ago. During the day the Applicant watches a lot of television or sits in the sun in the backyard. She described his discomfort during these activities; he would often lay down, regularly changing his position to make himself comfortable.
As for his cirrhosis of the liver, she described him as getting pains in the stomach and always feeling unwell. He will complain of being nauseous and not wanting to do anything. This was the case in 2018 and has been constant since that time.
As for the osteoarthritis of his hands, she said it had worsened since 2018. He now cannot hold onto anything and his hands cramp up even when writing.
As for his diabetic condition, she thinks this is what makes him sick and that his medication level needs correcting. Since 2018 this condition has worsened. He has lost a lot of weight and does not exercise.
In cross examination Mrs DLE said the Applicant drove to his medical appointments. He always drove to the hospitals. When he went to Royal Adelaide Hospital, she would go with him. This was about ½ hour drive from their home. She said that the Applicant would drive but would stop halfway and take a break to stretch so that he does not cramp up. He would take a similar break driving from the hospital back home.
Mrs DLE said that during the Qualification Period the Applicant was consistently visiting his sister once or twice a month. This has remained constant.
She said that the Applicant suffers from poor memory. He does not help around the house and does not make lunch or any meals.
Medical evidence
The Applicant provided historical medical evidence. In an examination dated 31 July 2012 Benson Radiology reported both mild and moderately severe degenerative changes to various facet joints of his lumbar spine, and probable L4 and L5 nerve root impingement[5]. This evidence corroborates the fact of a degenerative spinal condition.
[5] T 34, page 326.
In an examination dated 9 April 2013 Benson Radiology reported that his liver had multiple small hypoechoic lesions which may represent small dysplastic nodules due to hepatitis C cirrhosis[6]. The author reported that further evaluation with MRI of the liver could be performed. There is no evidence that this occurred.
[6] T 36, page 328.
In a report dated 1 August 2013 Dr Prabhu from the Pain Management Unit of the Royal Adelaide Hospital reported to Dr Vu following an assessment of the Applicant that same day[7]. In addition to the Recommendation to which I have referred at paragraph 22 above, he also reported:
(e)On Examination – “there are significant pain behaviours. His gait was normal. Lumbar range of movements are good, but limited by pain. Reflexes are normal. He has multiple areas of tenderness over the lower back entering the lower facets. Lower limb examination revealed non-dermatomal distribution of signs.”
(f)Impression – “Non-specific low back pain with some facet joint disease. He has a history of intravenous drug abuse and illicit drug use in the past.”
[7] T 37, page 329 – 330.
The Tribunal received various medical records including referrals, medical certificates referencing hepatitis C, chronic low back pain, depression and anxiety. On 3 October 2014 a viral hepatitis nurse reported that the Applicant was undergoing medical treatment which may cause lethargy and anxiety which treatment will continue for six months.
The Tribunal received a report from an Accredited Mental Health Social Worker Ms Tina Fitzgerald dated 6 December 2018 who reported that the Applicant was receiving mental health treatment under the Better Access Scheme on referral from Dr Vu who was treating the Applicant for major depression and anxiety[8]. Ms Fitzgerald reported that the Applicant required at least 12 months of mental health treatment and opined that he was “in an extremely emotionally vulnerable situation and will present with symptoms of panic attack, generalised anxiety disorder, post-traumatic stress disorder and depression.” She also opined that the Applicant had been overwhelmed by the demands made by Centrelink and that it had reached crisis point, where the Applicant was experiencing thoughts of suicide and had returned to consuming alcohol after 10 years of abstinence. She opined that the Applicant was “too emotionally vulnerable to cope with the demands of employment and requires additional assistance with regular, ongoing support”.
[8] T 23, pages 200 – 203.
However, there was no evidence from a psychiatrist or clinical psychologist directed to the diagnosis of Applicant’s mental health condition at the date of the claim or Qualification Period which is a compulsory requirement for an Applicant to be awarded points pursuant to Table 5 – Mental Health Function for impairment due to a mental health condition.
The JAC dated 5 July 2019, six months after the end of the Qualification Period, referred to Ms Fitzgerald’s report which said that there was scope for improvement in the next 12 months, and in the absence of the Applicant receiving treatment by a registered psychologist or psychiatrist, the author opined that the Applicant’s condition cannot be considered FDTS.
The Tribunal did receive a report from psychiatrist Dr Angela Okungu dated 27 December 2019[9]. She opined that the Applicant was currently suffering from depressive illness of moderate severity predicated by his chronic back pain, multiple medical comorbidities and social issues such as unemployment, financial difficulty and isolation. Dr Okungu made a number of recommendations including a referral to a specialist pain clinic to help address his chronic pain issues “in a systemic, multi-model way looking at biological, psychological and social factors”. She also recommended referral to a psychologist to help with strategies for coping with chronic illness. This report was directed to the Applicant at a point in time approximately 11 months after the Qualification Period and did not assist the Tribunal with respect to the current application.
[9] Exhibit C.
Dr Vu in his report dated 11 September 2018[10], the date of the Applicant’s claim for DSP, provided a one-page report that said the Applicant had:
·chronic low back pain with L4/5 disc bulge and nerve impingement – he was pending surgery for further management of his low back;
·hepatitis C with antiviral therapy leading to cirrhosis of the liver causing lethargy which was being monitored by Queen Elizabeth Hospital liver specialists;
·diabetes requiring daily oral medication;
·chronic vitamin D deficiency causing osteoporosis and had a fracture around his left ankle. He requires 3-monthly blood checks;
·anxiety/depression for which Dr Vu has provided many counselling sessions – he has seen a psychologist at the Grand Health Medical Centre; and
·hand arthritis/tenosynovitis with persistent right hand swelling and right fingertip skin condition still being investigated as confirmed by X-ray.
[10] T 63, page 381.
The Tribunal received from Dr Vu a document headed ‘Full Summary of the Applicant’s medical condition as at 2 September 2019’ referencing communication with Queen Elizabeth Hospital, Royal Adelaide Hospital in June to August 2019 for treatment of depression, and confirmation of appointments with the Liver Clinic and the Spinal Assessment Clinic at Royal Adelaide Hospital[11]. A further report from Benson Radiology dated 12 August 2019 confirmed progression of his lumbar spine degenerative condition. A letter to Centrelink from Dr Vu dated 28 February 2020 opined he was unsuitable for work and his physical and mental conditions have worsened. Dr Vu said the Applicant had been a constant challenge managing his multiple comorbidities and he required regular blood checks and ongoing monitoring of symptoms by his GP and specialist “eg liver, spinal, psychiatrist”.
[11] T5, page 24.
Evidence of Dr Vu
Lower Back Pain
Dr Vu was referred to his report dated 11 September 2018 and was asked about the Applicant’s medical condition at the time of the claim and during the Qualification Period. He said he could tell the Applicant was not walking comfortably, his gait was slow, and he was limping. There were a combination of issues including his back, liver and anxiety that were impacting upon him. The Applicant was seeing a spinal specialist.
Dr Vu was asked about the pending surgery referred to in his report. He then explained that he had a computer virus and did not have records relevant to that time. He could not accurately recall whether the surgery was pending or whether he was thinking about surgery, only that he was under review by a specialist with respect to his spinal condition. He then said that the Applicant decided to have surgery, but the Applicant subsequently changed his mind. He was fearful of complications.
In cross examination Dr Vu was asked again about the reference to the Applicant’s pending surgery referred to in his letter. He said that he had lost the relevant records from that time and could not recall the nature of the pending surgery. His view at the time was that an operation was the next step unless he could manage the pain. Within the last two years there were still treatment options that were available to the Applicant that were being investigated. He said the Applicant’s back pain, mental health and diabetes are all interrelated. The cirrhosis of the liver had no bearing on his back pain.
In relation to the Applicant’s back pain, Dr Vu was directed to the letter from Dr Prabhu of the Royal Adelaide Hospital Pain Management Unit dated 1 August 2013[12]. Dr Vu said that he did not refer the Applicant for this treatment. So far as the report refers to the drug Lyrica, that he said is a nerve reduction medication which reduces pain, he had no record of the Applicant having trialled that drug. The facet joint injections referred to typically alleviate the pain temporarily, but they do not fix a disc bulge. The Applicant did not receive any injections as a pain control medication. The Norspan patch was an opiate patch and used for pain management. The Applicant did not use such a patch during the Qualification Period. He was using oral medication and he did not see the need for an opiate patch if the oral medication was working. Dr Vu had no recollection of discussing with the Applicant the proposed treatment referred to by Dr Prabhu.
Liver cirrhosis
[12] T 37, pages 329 – 330.
Dr Vu could not assist the Tribunal with respect to the Applicant’s liver condition at the time of the claim for DSP or the Qualification Period because of the lost notes. He had records from 2019 that confirmed he had cirrhosis suffered in consequence of his hepatitis C. The Applicant was under the care of a specialist at the Queen Elizabeth Hospital for his hepatitis C condition.
Counsel for the Respondent referred Dr Vu to the Applicant’s cirrhosis. Dr Vu explained that there was scarring of the liver, possibly due to alcohol or hepatitis. His condition is not severe but can cause tiredness. It can potentially cause shortness of breath and cardiac stress with fluid retention. There is no treatment. It is managed by avoidance of alcohol and paracetamol. He said the Applicant should cease consuming alcohol. The treatment of diabetes will also help his cirrhosis.
Diabetes
In reference to the Applicant’s diabetes, Dr Vu referred to the April 2018 test results which indicated that his blood sugar level was still high. The Applicant was tired more often and suffered mood changes. His psychological health was ongoing and fluctuating depending upon the impact of his other conditions. He saw a specialist at the Queen Elizabeth Hospital.
Dr Vu opined that one could not focus on one condition and that there was an interaction between the various conditions. As his diabetes interacted with his back condition, he would be more tired, would go to the toilet more often, his mood would change and be affected by raised sugar levels. This would also impact upon his depression and anxiety. He opined that a lot of complications were involved in his diabetes.
At the time of the Qualification Period Dr Vu said the Applicant was on medication for his diabetes and that in January 2019 he changed medication. He has subsequently increased the dose. His diabetic condition has worsened since the Qualification Period.
Psychological condition
Dr Vu thought that the Applicant had seen a clinical psychologist, but because he does not have his notes due to the computer virus he was relying on his memory. He then said that he offered the Applicant the opportunity to see a clinical psychologist but does not recall whether he in fact saw the practitioner or declined the consultation. The Tribunal referred Dr Vu to the reference to a clinical psychologist SH referred to in the Disability Support Pension Medical Assessment Recommendation, but he had no recollection of the Applicant consulting SH.
Dr Vu was asked about consultations with Ms Fitzgerald.
Dr Vu said that the Applicant had seen psychiatrist Dr Onkunga in 2019. It was not warranted earlier. Previously a psychologist was thought to be appropriate, but Dr Vu could not recall if the Applicant had seen a psychologist. He said a patient is referred to a psychiatrist particularly if there is a chemical imbalance in the brain. If it is a reactive condition, then a psychologist is appropriate. Having seen Dr Onkunga, Dr Vu opined that the Applicant had been impacted by a combination of his conditions. His psychiatric condition is impacted by his diabetes, and a psychiatrist would not help him. He said his other conditions had to improve in order to improve his mental health. Hence initially he thought a psychologist would be of more help to the Applicant.
Dr Vu was referred to the psychiatric report of Dr Okungu and in particular, the ‘Recommendations’ section recommending that the Applicant “be referred to a specialist Pain Clinic to address his chronic pain issues in a systemic, multi-model way looking at biological, psychological and social factors.” Dr Vu said the pain is not just a physical thing. This had not been trialled during the Qualification Period. Other factors such as his liver condition and diabetes were not stable, and these other factors were affecting his pain which needed to be addressed. In his opinion, there was a need to resolve those other conditions because if they were not addressed his pain would continue.
In respect of his psychological condition, as far as Dr Vu could remember, the Applicant did not see clinical psychologist SH. Nor did he see an endocrinologist for his diabetes. They were trying other medication first. He explained that stress can have an impact on blood sugar levels.
Hand osteoarthritis
Dr Vu said that this condition was still being investigated at the time of the claim for DSP. At the relevant time much of his consultation was directed to filling in forms for Centrelink which impeded the medical service he could provide to the Applicant.
This condition is still being further investigated and was still in the early stages of treatment at the time of the claim and Qualification Period. Dr Vu had been monitoring the condition and had not yet referred him to a specialist.
Closing submissions
The Respondent commenced closing submissions but immediately the Applicant became angry and hung up the telephone. The Tribunal telephoned the Applicant and tried to speak to him. The Applicant’s partner said he would not come to the telephone and would not engage with the Tribunal. To permit the Applicant the opportunity to make closing submissions the Tribunal made orders directing the parties file written closing submissions, which they did.
The Applicant’s closing submission repeated his medical conditions namely:
·     chronic back pain;
·     cirrhosis of the liver that cannot be cured, and for which he is under the care of a specialist at the Queen Elizabeth Hospital who he sees once every three months;
·     arthritis in his hand and that he can only write for a short time before it cramps; this condition has been monitored;
·     diabetes for which he is taking tablet medication; and
·     vitamin D deficiency.
The Applicant also submitted that he had been without job prospects for 20 years, that no employer will hire him because of his medical condition, and that his condition has worsened with age.
The Respondent in helpful written submissions, argued that the Applicant’s impairments did not attract 20 points or more under the Impairment Tables as required by s 94 (1) (c). It was submitted that the Applicant’s lower back condition was not FDTS at the time of the Qualification Period and that Dr Vu in oral evidence confirmed that the Applicant was being reviewed by a spinal specialist at that time. Further, the Applicant had previously rebuffed recommendations by Dr Prabhu to trial Lyrica, facet joint injections and Norspan. In evidence Dr Vu said he was not aware of the recommendations, albeit they were contained in a letter addressed to him and, in any event, the Applicant was taking oral painkillers. Hence, at the time of the Qualification Period those other treatment options had not been used.
The Respondent submitted there was little evidence about functional impact consequent upon the Applicant’s lower back condition. It was submitted that there was an absence of corroborative evidence with respect to functional impact, or any impairment, and that the evidence was the self-reporting of symptoms, which the Impairment Tables make plain, is insufficient. In any event, the Applicant said in evidence that he could perform some overhead activity such as removing a book from the bookshelf; or on occasion bend to knee level and straighten up; or turn his trunk and move his head with the proviso he did not do so quickly which could give rise to stabbing pain. Hence, at most, the Applicant suffered mild functional impact with respect to Table 4 – Spinal Function which would attract an assessment of five points.
As for the Applicant’s anxiety and depression, despite reference to clinical psychologist SH, there is no evidence before the Tribunal of a diagnosis by a clinical psychologist or psychiatrist as required by Table 5, and hence the condition was not FDTS.
The Secretary accepts the Applicant’s liver cirrhosis was fully diagnosed. However, the Respondent referred to Dr Vu’s evidence that the condition could be exacerbated by alcohol intake and, in 2018, the Applicant said that at times he would consume alcohol of up to “one carton a day”. Further, the condition could be affected by diabetes and because the Applicant’s diabetes had not been optimally managed, the Tribunal could not be satisfied that the liver cirrhosis has been fully treated and stabilised. In any event, there was no corroborative evidence of the impairment caused by the condition and, in particular, lethargy or bowel movement, such that any points could be allocated under the relevant Table.

The Secretary accepts the Applicant’s hand osteoarthritis was fully diagnosed. However, having regard to Dr Vu’s oral evidence, the Secretary argues that the treatment of the condition was still in its early stages and under investigation at the time of the Qualification Period. Further, in the absence of corroborative evidence of the functional impact of the condition, no points could be allocated under the Impairment Tables.
The Secretary accepts that the Applicant’s diabetes was fully diagnosed and again referred to Dr Vu’s oral evidence that the relevant medication and dosage was still being monitored and adjusted as at the Qualification Period, and further, there was an absence of corroborative evidence in respect of the functional impact of the condition. Again, it was submitted that no points could be allocated under the Impairment Tables.
Accordingly, the Secretary submitted that none of the Applicant’s conditions could be allocated points under the Impairment Tables, but even if the Tribunal decided that his lower back condition was FDTS, at its highest only five points could be awarded under Table 4.
Consideration
The Applicant has, for several years, suffered from a range of medical conditions which have impacted upon his daily living and ability to return to work. The Tribunal accepts that these conditions, together with his attempts to engage with Centrelink, have added to his anxiety and depression. This was evident during the hearing, including on the two occasions when he hung up on the Tribunal and when on the latter occasion he refused to engage further with the hearing.
The Tribunal does not make any adverse finding against the Applicant because of this conduct. It was indicative of the Applicant’s oral evidence that he was quick to anger, which was confirmed by his partner. The Tribunal accepts that he finds the process of dealing with his DSP upsetting.
However, the Tribunal is obliged to consider the medical conditions relied on in support of the application for DSP at the time of the claim and during the Qualification Period, namely, 11 September 2018 to 11 December 2018. Further, for the application to be successful, the relevant assessment Tables make very clear, that when considering whether a person has a permanent condition resulting in functional impairment, namely a condition that is FDTS, the diagnosis of the condition must be made by an appropriately qualified medical practitioner; self-reported symptoms alone are insufficient. There must be corroborating evidence of the person’s impairment.
Further, insofar as the Applicant claims a functional impairment due to a mental health condition in accordance with Table 5 – Mental Health Function, the diagnosis must be made by an appropriately qualified medical practitioner, namely a psychiatrist or clinical psychologist. The fact that a treating general practitioner makes the diagnosis is insufficient. A diagnosis that is purported to be made by an Accredited Mental Health Social Worker is also insufficient for the purposes of an assessment made under Table 5.
Despite reference in the Disability Support Pension Medical Assessment Recommendation (with respect to an assessment date of 19 September 2018 within the Qualification Period), to the Applicant seeing a clinical psychologist by the name of SH, no evidence was before the Tribunal from a clinical psychologist or psychiatrist that is relevant to the application for DSP. Dr Vu said he did not refer the Applicant to clinical psychologist, SH. Dr Vu’s evidence was confused as to whether he had referred the Applicant to a clinical psychologist at all, or whether the Applicant had declined the consultation. Dr Vu later said that the Applicant did not consult a clinical psychologist.
The reason for the confusion can be explained because Dr Vu did not have before him his medical notes of the consultations in the period relevant to the application, but what is clear is that there was no evidence before the Tribunal from a clinical psychologist or psychiatrist about the Applicant’s mental health condition at the time of the application for DSP or during the Qualification Period.
Insofar as the Tribunal has received evidence from psychiatrist Dr Okungu, as outlined in Exhibit C, that report followed a first consultation on 27 November 2019, approximately 11 months after the end of the Qualification Period. Medical reports that come into being after the Qualification Period are only relevant insofar as they are referrable to the Applicant’s condition during the relevant period[13]. Thus, that report was not relevant to the application before the Tribunal.
[13] Fanning and Secretary, Department of Social Services [2014] AATA 447 [31] – [33].
Hence the Tribunal is not satisfied that the Applicant’s mental health condition was, at the time of the claim or during the Qualification Period, FDTS. Accordingly, no points are awarded in respect of functional impairment due to the Applicant’s mental health condition in accordance with Table 5 – Mental Health Function.
In turning to the other conditions relied on by the Applicant in his claim for DSP there was a considerable body of historical evidence that the Applicant has been dealing with a number of medical conditions over a number of years. However, the evidence insofar as it was directed to the date of the application for DSP or the Qualification Period was poor. I will deal with each of those conditions in turn as they relate to the application.
Lower back pain
The Applicant produced reports from the Benson Radiology dating back to 31 July 2012 which corroborate that he suffers from degenerative changes to the facet joints of his lumbar spine and nerve root impingement. In the Benson Radiology report dated 8 August 2018, the Applicant’s multi-level degenerative disc disease and facet arthropathy of the lumbar spine was again confirmed[14].
[14] T 16, page 179.
Despite Dr Vu having no recollection of referring the Applicant to the Pain Management Unit of the Royal Adelaide Hospital in about 2013, it is clear that the Applicant consulted Dr Sanjay Prabhu, who on examination reported significant pain behaviours, normal gait and good lumbar range of movements albeit limited by pain[15]. He confirmed that the Applicant suffered multiple areas of tenderness over his lower back and opined non-specific low back pain with some facet joint disease. Dr Prabhu recommended treatment with Lyrica, trying facet joint injections and Norspan patches. The Applicant refused the recommended treatment and was not willing to take further advice from Dr Prabhu. Other than the Applicant now, after the Qualification Period, using Norspan patches to alleviate pain, the other recommendations were not implemented.
[15] T 37, pages 329 – 330.
Nonetheless, in his report dated 19 September 2018 approximately one week after the Applicant’s claim for DSP, Dr Vu reported that the Applicant “is pending surgery for further management of his low back”[16]. Dr Vu’s evidence about what back surgery had been arranged was poor and unhelpful. The Applicant, however, said that he was due to have back surgery at that time but because of recent events involving a friend of his daughter, and his brother-in-law in relation to the treatment of their back conditions, he has now decided he does not wish to proceed with back surgery or facet joint injections.
[16] T 63, page 381.
Despite the Applicant’s change of mind as to treatment he will now accept with respect to his lower back degenerative condition, at the time of the application for DSP and during the Qualification Period, back surgery treatment was still pending.
The Tribunal accepts that the Applicant’s spinal function was fully diagnosed but because of pending surgery at that relevant time it was not then fully treated and stabilised. Further there was reasonable treatment recommended by Dr Prabhu, namely the trial of Lyrica and Norspan patches, which had not been embraced. In particular, the Applicant commenced using Norspan patches after the Qualification Period. This further indicates that his spinal function and lower back pain had not been fully treated and stabilised at the time of the claim or during the Qualification Period.
The Tribunal received a letter dated 3 September 2019 from the Royal Adelaide Hospital confirming the Applicant’s appointment with the Spinal Assessment Clinic at that hospital[17]. This indicates that the Applicant’s spinal condition was still being treated, albeit the outcome of that consultation and a report from an appropriately qualified medical practitioner is not before the Tribunal.
[17] T5. page 27.
Further, Dr Vu in evidence said that it was better management of the Applicant’s comorbidities which would improve his back condition, namely the treatment of his diabetes, liver cirrhosis, mental health conditions and vitamin D deficiency. This also confirms that his lumbar spine condition was not fully treated and stabilised and that treatment of his other medical conditions were the priority because it was opined that such other treatment would likely impact upon his lumbar spine condition.
Dr Vu said that the Applicant’s psychological condition would impact upon his back condition and other impairments. Until the Applicant consulted Dr Okungu in 2019 as to his psychological condition he was not under the care of a specialist and hence his psychological condition was still impacting upon his lumbar spine condition. Again, this is further evidence that his lumbar spine condition was not fully treated and stabilised at the time of the claim for DSP.
The evidence of the Applicant’s functional impairment did not assist the Tribunal. The diagnosis of his lumbar spine condition was made by an appropriately qualified medical practitioner including a radiologist from Benson Radiology, and Dr Prabhu. However, the evidence from Dr Vu was, at the relevant period, that the Applicant’s gait was slow, and he limped. Dr Vu referred to a combination of issues affecting the Applicant’s condition including his back, liver and anxiety and that he was seeing a spinal specialist. However, the Tribunal did not receive corroborating evidence confirming a diagnosis of conditions commonly associated with spinal function impairment. To the extent that the Tribunal received evidence of functional impairment, it was from the Applicant’s self-reporting of symptoms which is insufficient.
Accordingly, the Tribunal is satisfied that the Applicant’s lumbar spine condition was fully diagnosed at the time of the claim for DSP. However, the Tribunal is not satisfied that the Applicant’s lumbar spine condition was fully treated and stabilised at the time of the application for DSP or during the Qualification Period. Further, the Tribunal has not received appropriate medical evidence corroborating the Applicant’s functional impairment and hence no impairment points can be awarded for Table 5 – Spinal Function.
Liver cirrhosis
The Respondent concedes that the Applicant’s liver cirrhosis condition was fully diagnosed at the time of the application for DSP. The Tribunal agrees with that concession.
However, there were a number of issues impacting upon the Applicant’s condition at the relevant time. Dr Vu in evidence said that the liver condition could be exacerbated by alcohol. The Applicant said in evidence that in 2018 he would consume large quantities of alcohol, up to one carton a day. As the Applicant could not say when in 2018 he was consuming such quantities of alcohol, I am not reasonably satisfied that his alcohol consumption was not impacting upon his liver condition at the time of his application for DSP or during the Qualification Period, and hence I am not reasonably satisfied that the condition was fully treated and stabilised at that time.
Further, Dr Vu said that liver cirrhosis could also be affected by the Applicant’s diabetes and for reasons that I will later explain, the Applicant’s diabetes condition had not been fully treated at the time of the DSP claim or during the Qualification Period. Hence because of the interrelationship between both of these conditions, the Applicant’s liver cirrhosis was not fully treated and stabilised at the relevant time.
The Tribunal had a report from Benson Radiology dated 9 April 2013 in which the radiologist performed an abdominal ultrasound because of persistent upper abdominal pain and positive hepatitis C[18]. The finding was consistent with fatty liver and multiple small hypoechoic ill-defined foci throughout the liver. A report of Benson Radiology dated 8 August 2018 reports that the Applicant’s liver was a little echogenic suggesting background fatty change, the liver surface was smooth and no macronodular cirrhosis was identified with no focal liver lesion[19]. Hence the 2018 report suggests a change in the pathology of the Applicant’s liver.
[18] T 36, page 328.
[19] T 16, page 179.
The Applicant received a letter dated 17 August 2018 confirming an appointment with the Liver Clinic at the Queen Elizabeth Hospital on 6 March 2019. The Tribunal does not know the outcome of that appointment nor has the Tribunal received any report from a medical specialist confirming the liver diagnosis as at the date of the claim or during the Qualification Period. It is apparent that the Applicant was still having treatment for his liver condition in 2019 and after the Qualification Period. Dr Vu said that the Applicant was still being monitoring by liver specialists at the Queen Elizabeth Hospital.
Further, to the extent that the Applicant reported to Dr Vu lethargy and frequent loose bowel movement as a consequence of this condition, this was again evidence of self-reporting and not corroborated by the Applicant’s treating doctor or medical specialist, and there is no evidence from the subspecialist before the Tribunal relevant to the claim or the Qualification Period[20].
[20] T 63, page 381.
Accordingly, the Tribunal is not satisfied that the Applicant’s liver cirrhosis was not fully treated and stabilised at the time of the DSP claim or during the Qualification Period and no impairment points can be awarded with respect to that condition.
Hand osteoarthritis
The Respondent concedes that the osteoarthritis to the Applicant’s hands were fully diagnosed at the time of the application for DSP. Again, that concession is properly made, and the Tribunal agrees with that concession.
In his report dated 11 September 2018 Dr Vu reported right hand swelling, and X-ray confirmation of hand arthritis/tenosynovitis with right fingertip skin condition which was still being further investigated[21]. In the Queen Elizabeth Hospital notes for admission dated 9 June 2017 it is reported that the Applicant was being reviewed for right middle finger swelling, reddening and pain over the previous three months. The assessment reports necrotic tissue to the tip of the finger, moderate swelling and tenderness which was to be further reviewed. It was diagnosed to be likely caused by vasculitis due to smoking. The tip of the finger was excised, and further follow-up was to occur. Hence this procedure was well before the DSP claim. It would appear to be unrelated to his hand osteoarthritis and the state of that condition as at the date of the claim was not clear on the evidence[22].
[21] Ibid.
[22] See T64, pages 478 – 481.
In his evidence Dr Vu said that the hand conditions were still in their early stages and under investigation during the Qualification Period and subject to further investigation. This is plainly so given the Applicant was receiving treatment for his hand conditions in the Queen Elizabeth Hospital in January 2019, after the Qualification Period. Further, the Applicant’s evidence about the functional impact the condition was having on the use of his hands was again self-reporting and not corroborated by the Applicant’s treating doctor or medical specialist.
Accordingly, the Tribunal is not satisfied that the Applicant’s osteoarthritis of both hands was fully treated and stabilised as at the date of the claim or the Qualification Period, and no impairment points can be awarded in respect of that condition.
Diabetes
The Respondent again concedes that the Applicant’s diabetes was fully diagnosed as at the date of the application for DSP. The Tribunal agrees with that concession.
However, Dr Vu in evidence said that the diabetic condition was being treated by medication and that the dosage was being monitored and adjusted during the Qualification Period and after. The Applicant in evidence said that he did not know whether he will be continuing with oral medication or transitioning to injections.
It was not clear on the evidence of the Applicant what functional impairment he said was caused by his diabetes. His report that he feels unwell was again self-reporting and not necessarily linked to this condition. There was no corroborative evidence of the Applicant’s impairment suffered as a consequence of this condition. Dr Vu in his report of 11 September 2018 said the Applicant was taking daily oral medication but did not refer to any consequent impediment.
Accordingly, the Tribunal is not satisfied that the Applicant’s condition was fully treated and stabilised at the time of the claim or during the Qualification Period. Further, the Tribunal is not satisfied that any functional impairment has been identified as arising from this condition or to a level that entitles the Applicant to a point assessment on the relevant Table. No impairment points can be awarded in respect of that condition.
Conclusion
The state of the medical evidence before the Tribunal was unsatisfactory. The Applicant had been referred to specialists at the Queen Elizabeth Hospital for various conditions including at or about the time of the claim for DSP but there was no evidence before the Tribunal from those specialists. The Queen Elizabeth Hospital Notes indicate he had appointments in 2018 and early 2019 for treatment of his various conditions but did not assist the Tribunal in determining whether the conditions were fully treated and stabilised[23]. The problem with the sufficiency of the evidence was further compounded by Dr Vu no longer having his notes available for much of the relevant period.
[23] See T64, pages 498 – 508, 535 – 542.
The absence of evidence from a psychiatrist or clinical psychologist in respect of his mental health condition was a further example of the inadequacy of the medical evidence before the Tribunal. The failure to produce evidence from a clinical psychologist or psychiatrist meant that the Applicant’s claim of functional impairment due to his mental health condition could not succeed.
The medical evidence before the Tribunal was not sufficient to support the Applicant’s claim for DSP. The absence of corroborating evidence of functional impairment in relation to various conditions was telling. Hence the evidence of the Applicant’s impairments was of a self-reporting nature, which is not sufficient to entitle the Applicant to an assessment on the relevant Table.
The Applicant has not satisfied the Tribunal that he has a severe impairment entitling him to a rating of 20 points pursuant to a single Table. Further he has not satisfied the Tribunal that he attracted the requisite 20 points on the Impairment Tables in respect of multiple conditions. There is no need for the Tribunal to consider whether the Applicant had a CITW or whether he actively participated in a program of support.
Decision
The decision to reject the Applicant’s claim for DSP is affirmed.

132.    I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

133.

……………………[sgnd]………………………….

Administrative Assistant Legal

Dated: 9 November 2020

Date of hearing:   26 June 2020 (by telephone)
Advocate for the Applicant:                Unrepresented
Advocate for the Respondent:            Mr Alex Chan, Sparke Helmore Lawyers

[2020] AATA 4534

9 November 2020

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