Conway and Secretary, Department of Social Services (Social services second review)
[2020] AATA 2450
•24 July 2020
Conway and Secretary, Department of Social Services (Social services second review) [2020] AATA 2450 (24 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/3913
Re:Sian Conway
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member P J Clauson AM
Date:24 July 2020
Place:Brisbane
The decision under review is affirmed.
............. ................[SGD].......................................
Senior Member P J Clauson AM
Catchwords
SOCIAL SECURITY – Disability Support Pension – DSP – Whether impairment fully treated – whether impairment fully stabilised – whether impairment can be assigned 20 points – whether Applicant has undertaken reasonable treatment
Legislation
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)
Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922Dragojlovic and Director-General of Social Security [1984] FCA 6
Eckersley and Secretary, Department of Family and Community Services [2001] AATA 798
Fanning and Secretary, Department of Social Services [2014] AATA 447
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Jansen [2008] FCAFC 48
Secondary Materials
Australian Government Guide to Social Policy Law, Social Security Guide
REASONS FOR DECISION
Senior Member P J Clauson AM
24 July 2020
On 14 June 2018 Ms Sian Conway (‘the Applicant’) lodged a claim for Disability Support Pension (‘DSP’) listing her medical conditions as:
(a)Depression, anxiety, stress, PTSD;
(b)Fibromyalgia/chronic pain, back pain, weak muscles in legs and arms, increasing difficulty in standing for periods of time or undertaking repetitive manual movements;
(c)Insomnia;
(d)Chronic sinusitis;
(e)Diabetes Type 2 - diet only;
(f)Hypertension;
(g)Reflux/Gall bladder removal causing lack of bile production.[1]
[1] Exhibit 1, T33, page 188.
The Applicant in support of consideration for her claims for the DSP provided her Patient Health Summary from Kedron-Wavell Medical Centre printed 7 June 2018[2] and two letters from her treating General Practitioner (‘GP’), Dr Jane Walters, dated 9 June 2018[3] and 8 June 2018[4]. An Assessment Services Recommendation was then undertaken on 20 July 2018 which advised that a Job Capacity Assessment (‘JCA’) was required.[5]
[2] Exhibit 1, T30, pages 156 - 159.
[3] Exhibit 1, T32, pages 161 - 162.
[4] Exhibit 1, T31, page 160.
[5] Exhibit 1, T36, page 201.
A JCA was then conducted on 28 August 2018 and a report was produced on 21 September 2018.[6] The report listed and assessed the Applicant’s conditions as follows:
(a)psychological/psychiatric disorder (Major Depressive Disorder and Anxiety Disorder) was assessed as fully diagnosed, however, was not considered to be fully treated or stabilised at that time;
(b)chronic pain was fully diagnosed, however, was not fully treated or stabilised;
(c)Respiratory Disorder, asthma and chronic sinusitis was fully diagnosed but not fully treated and stabilised as she was still recovering postoperatively and was awaiting a follow-up consultation with her surgeon;
(d)Fibromyalgia was fully diagnosed, however, was not fully treated and stabilised at that time;
(e)her other conditions of migraines, hypertension, Type 2 Diabetes, reflux and high cholesterol were reported as not being sufficiently medically documented and well enough managed to not be of consideration from a functional impact perspective.
[6] Exhibit 1, T38, pages 209 - 219.
The Applicant was notified that her DSP claim had been rejected on 21 September 2018.[7] The Applicant then sought review of that decision by an Authorised Review Officer (‘ARO’) who affirmed the decision to not grant the Applicant DSP.[8]
[7] Exhibit 1, T39, pages 220 - 221.
[8] Exhibit 1, T42, pages 225 - 230.
The Applicant, on 31 December 2018, then sought review of the ARO decision before the Social Services and Child Support Division (‘AAT1’).[9]
[9] Exhibit 1, T44, pages 232 - 233.
The AAT1 affirmed the decision of the ARO on 11 April 2019[10], finding that:
(a)The Applicant’s mental health condition (depression and anxiety) was assessed as fully diagnosed, fully treated and stabilised and attracted 10 points under Table 5 of the Impairment Tables; and
(b)The Applicant’s Fibromyalgia condition/chronic pain condition was assessed as not fully treated and stabilised.
[10] Exhibit 1, T2, pages 7 - 13.
Consequently, because the Applicant’s Impairment Rating failed to exceed 20 points, she did not qualify for DSP.
The Applicant applied for an extension of time, following the decision of the AAT1, to lodge an Application for Review of that decision by this Tribunal on 1 July 2019. In support of her Application, the Applicant provided further material and reports as follows:
(a)Report of Dr Sumant Kevat, Visiting Consultant Rheumatology, dictated on 28 March 2019 and dated 24 April 2019[11];
(b)Report of Michelle Alexander, Psychologist, dated 28 June 2019[12];
(c)An Applicant’s Statement of Issues, Facts and Contentions[13] provided by the Applicant through her nominee, Mr Kevin Conway.
[11] Exhibit 1, T46, pages 237 - 238.
[12] Exhibit 1, T49, pages 244 - 245.
[13] Exhibit 4.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act1991 (Cth) (‘the Act’) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant Impairment Ratings are to be determined as at the date of claim, in this case14 June 2018. There is, however, an exception where the person is not qualified on that date but ‘becomes qualified’ within 13 weeks of lodging a claim, in which case the start date for DSP is the date the person becomes qualified.[14] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 14 June 2018 and 13 weeks thereafter, namely 13 September 2018 (‘the Relevant Period’).
[14] See sections 41 and 42 and clause 3 and clause 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act1999 (Cth).
It is well-established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition, and thus assessment of attributable impairment points, must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at para. [34]:
The Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal 12 or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances. (Tribunal’s underlining)
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’), a legislative instrument made under the Act.[15] The Tables are function-based rather than diagnostic-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[16] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[17]
[15] See section 26(1) of the Act.
[16] See section 5(2) of the Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (‘the Determination’).
[17] See section 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an Impairment Rating can only be assigned 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 two years.[18] In order for a condition to be considered ‘permanent’, it must have been fully diagnosed by an appropriate qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[19]
[18] See section 6(3) of the Determination.
[19] See section 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[20]
[20] See section 6(5) of the Determination.
A condition is ‘fully stabilised’ if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)the person has not undertaken reasonable treatment for the condition, but:
(i)significant functional improvement to a level enabling the person to undertake work in the next two 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.[21]
[21] See section 6(6) of the Determination.
‘Reasonable treatment’ is treatment that:
(a)is available at a location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.[22]
[22] See section 6(7) of the Determination.
An Impairment Rating can only be assigned in accordance with the Rating Points in each Table. A rating cannot be assigned between two consecutive Impairment Ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[23]
[23] See section 11(1) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
ISSUES FOR THE TRIBUNAL
The issues for this Tribunal to consider are:
(a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric condition/s which was or were fully diagnosed, fully treated and fully stabilised;
(b)whether the condition/s warranted an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a program of support; and
(d)whether the Applicant has a continuing inability to work.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not therefore satisfy sections 94(1)(b) or 94(1)(c) of the Act.[24]
[24] Exhibit 3, Respondent’s Statement of Issues, Facts and Contentions, page 3 to 16 inclusive.
The Applicant contends that her conditions of Major Depressive Disorder and Fibromyalgia are both fully diagnosed, fully treated and fully stabilised and should be assessed on the Impairment Tables 5 and 1 respectively as attracting at least 20 points, thus categorising the Applicant as severely impaired and thus eligible to qualify for DSP.
The Tribunal accepts that the Applicant had impairments for the purpose of section 94(1)(a) of the Act and proposes to deal with the calculation of Impairment Points by reference to each of the Applicant’s medical conditions.
Condition 1 - Mental Health Condition - Table 5
Points
Descriptors
0
There is no functional impact on activities involving mental health function.
(1) The person has no difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently and attends to all self care needs without support.
(b) social/recreational activities and travel;
Example 1: The person goes out regularly to social and recreational events without support.
Example 2: The person is able to travel to and from unfamiliar environments independently.
(c) interpersonal relationships;
Example: The person has no difficulty forming and sustaining relationships.
(d) concentration and task completion;
Example 1: The person has no difficulties concentrating on most tasks.
Example 2: The person is able to complete a training or educational course or qualification in the normal timeframe.
(e) behaviour, planning and decision-making
Example: There is no evidence of significant difficulties in behaviour, planning or decision-making
(f) work/training capacity.
Example: The person is able to cope with the normal demands of a job which is consistent with their education and training.
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
30
There is an extreme functional impact on activities involving mental health function.
(1) The person has extreme difficulties with most of the following:
(a) self care and independent living;
Example 1: The person needs continual support with daily activities and self care.
Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility.
(b) social/recreational activities and travel;
Example: The person is unable to travel away from own residence without a support person.
(c) interpersonal relationships;
Example: The person has extreme difficulty interacting with other people and is socially isolated.
(d) concentration and task completion;
Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes.
Example 2: The person has extreme difficulty in completing tasks or following instructions.
(e) behaviour, planning and decision-making;
Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement.
Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training sessions other than for short periods of time.
The evidence before the Tribunal indicates that the Applicant has been suffering from generalised anxiety and depression since about the age of 16 as a result of bullying at school. This is noted in the report of Dr Clare Devlin dated 7 January 2014.[25]
[25] Exhibit 1, T8, pages 82 - 95.
A report dated 27 August 2013[26] by Drs Paul Kubler and Amee Sonigra, Director of Rheumatology and an Advanced Trainee in Rheumatology respectively, Consultants at the Royal Brisbane and Women’s Hospital (‘RBWH’), noted inter alia, that the Applicant had dropped out of school in Year 11 as a consequence of bullying and this had been followed by a condition of anxiety and depression. The report also notes that she had:
Psychiatry review for about three years but none since the age of 18. She did have Mental Health Unit visits three times at Prince Charles Hospital since then.[27]
[26] Exhibit 1, T6, pages 73 - 74.
[27] Ibid, page 74.
The Applicant’s GP, Dr Jane Walters, had on 25 January 2017, conducted a Mental Health Care Plan review for the Applicant with her other treating mental health providers and treating professionals.
A report by Dr Karina Bradley, a Clinical Psychologist, dated 23 August 2017, confirmed that in sessions with the Applicant, the Applicant’s conditions of Major Depressive Disorder and Anxiety Disorder were being addressed. The report confirmed that at that time the Applicant had undergone three sessions clearly with a view to improving her function.[28] Shortly after this report was prepared on 5 September 2017, Dr Bradley spoke with the JCA who had assessed the Applicant’s prior DSP claim and advised that JCA that the Applicant had been diagnosed with Major Depressive Disorder and Anxiety Disorder but was hopeful that:
There will be some improvement in the client’s mental health functioning over the next two years with ongoing psychological intervention.
and that the Applicant had completed three appointments and further appointments were planned.[29]
[28] Exhibit 1, T22, page 129.
[29] Supplementary T-documents 13, pages 409 - 410 at 410.
Shortly, prior to the Applicant lodging this claim for DSP, a Psychologist, Michelle Alexander, reported on 5 June 2018[30] that the Applicant:
… needs on-going psychology sessions to address her physical and mental health issues. Her condition upon reading past reports from other health professionals has not changed significantly. On May 24, 2018 she has engaged with a treating Psychiatrist to assist with re-evaluating her medication. In addition, I believe it would be helpful for Sian to return to the RBWH to assist with pain management strategies.
[30] Exhibit 1, T29, page 155.
There was a JCA assessment conducted and a report prepared for the Applicant’s current DSP claim on 28 August 2018.[31] That report found that the Applicant’s Major Depressive Disorder and Anxiety Disorder were fully diagnosed but not fully treated and stabilised based on the report of Dr Bradley made earlier to the JCA of 5 September 2017[32] which reported inter alia the prognosis that:
Hopeful there will be some improvement in the client’s mental health functioning over the next two years with ongoing psychological intervention.’ (Quoting Dr Bradley of the report of 5 September 2017).
[31] Exhibit 1, T38, pages 209 - 219.
[32] Ibid.
This JCA Report noted that:
Current Clinical Psychologist indicates that some improvement in the client’s functioning may occur over the next two years with ongoing psychological intervention.
This JCA also noted the Applicant recently commencing medication to address PTSD.
The Applicant’s GP, Dr Jane Walters, had referred the Applicant to the Acute Care Team at the Prince Charles Hospital for what was described in a summary report of the Applicant’s progress as:
Referred by GP for medication review.[33]
[33] Exhibit, T37, pages 203 - 208 at page 204.
This Progress Report of the Applicant’s mental health treatment progress was penned by Dr McFadden, a Consultant Psychiatrist at the Acute Care Team of the Prince Charles Hospital.
This report also, in its conclusion, outlined a 10-point plan for the Applicant to follow after her discharge. Of note are points 1, 2 and 3 and 8 of this plan and these are respectively:
1To return to GP - has appointment tomorrow.
2For reinitiating of GP MHCP and ongoing referral to Psychologist. Would recommend use of structural therapy such as DBT/ACT.
3Minimal benefit from multiple previous ADT - Sian does not currently want to trail (sic) alternative agent and reports improvement on increased dosage of Fluoxetine and Quetiapine. Psychological intervention pivotal in addition to already ℞ medications.[34]
8ACT support call to be completed next week (has been put in task list) - Ensure that she has linked in with Psychologist. Assess any further needs.
[34] Ibid, page 208.
It is accepted by this Tribunal that the Applicant’s mental health condition is fully diagnosed and of longstanding duration. In the material before the Tribunal, it is noted that the Applicant was first diagnosed by a Psychiatrist as early as 2000 and saw the Psychiatrists Drs Kissoon and Daubney in that year.
However, although a condition may be of longstanding post-diagnosis, the question as to whether it has been fully treated and stabilised following that diagnosis may not be easily established. This is so particularly when mental health conditions are concerned, as in the Applicant’s situation in this matter. The Tribunal has also noted the pharmaceutical and psychological treatments that she has been receiving over the period since her diagnosis up to and during the Relevant Period.
This Tribunal, in considering whether the Applicant’s conditions are fully diagnosed, fully treated and fully stabilised, is confined in this review to the Qualification Period relevant to the Applicant’s claim for DSP, namely 14 June 2018 to13 September 2018.
The Tribunal notes that the Applicant’s contention relative to her mental health condition is that given the length of time over which she has been enduring its effects, her impairments warrant the allocation of 10 points under the Impairment Tables, Table 5. The Tribunal notes also the Secretary’s contention that the Applicant’s mental health condition was at the Qualification Period, not fully treated or stable given that the Applicant’s medical advisors were still engaging with her on the basis that there were ongoing aspects of treatment which may have resulted in an improvement. These views were based upon the report of Ms Alexander of 5 September 2018[35] which reported that the Applicant had engaged with a treating Psychiatrist to reassess her medication needs and which also made further comment that the Applicant required ongoing psychology sessions to assist in treating her physical and mental health conditions. The Tribunal considers also that these treatments were, and were continuing to be, undertaken in the context of Dr Karina Bradley’s earlier report on 5 September 2017[36] that indicated some hope that some improvement in function would manifest within the next two years. It is clear to the Tribunal that the treating professionals saw the possible resolution of the Applicant’s mental health condition as a relatively long-term process. Further, upon the evidence before this Tribunal, it is clear that at the Relevant Period, the mental health condition of the Applicant was not at a point where it could be classified as fully treated and stabilised.
[35] Ibid.
[36] Ibid.
The Tribunal has also considered the report of Ms Alexander, which is dated 28 June 2019[37] wherein she opines that the Applicant’s mental health conditions were stable and stationary other than for her PTSD condition which had manifested following an assault. This report is dated well past the Qualification Period by in excess of nine months. If indeed it is the case that the Applicant’s condition has reached the point of being fully treated and fully stabilised as reported by Ms Alexander in this report, the Tribunal is of the view that the principle of Bobera[38] is applicable to the Applicant’s circumstance insofar as up to and beyond the Qualification Period the Applicant was still receiving treatment with a view to alleviating her mental health condition to a point of stability. The report of Ms Alexander falls into that category of post-Qualification Period evidence which was considered in Bobera and quoted with approval by Handley DP in the matter of Fanning and Secretary, Department of Social Services [2014] AATA 447 in the following terms:
[31]In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act [Social Security Administration Act] that an Applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the Relevant Period may still be relevant, but only insofar as they are referable to the Applicant’s condition during the Relevant Period.
[32]This is supported by the Judgment of Gyles J. in Harris v. Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J. stated that at [1] that as an Applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, ‘Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time’.
[33]The language in clauses 6(5) and 6(6) of the 2011 determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether ‘any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years’ (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the Relevant Period is not directly relevant to the Tribunal’s decision.
[37] Exhibit 1, T49, pages 244 - 245.
[38]Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
The Tribunal therefore finds that at the Relevant Period (14 June 2018 to 13 September 2018), the Applicant’s mental health condition of severe depression disorder and anxiety was fully diagnosed but not fully treated and fully stabilised. In fact, this is supported by the reports of Ms Alexander of 5 June 2018[39] and her subsequent post-Qualification Period report on the Applicant of 28 June 2019.[40] The former clearly indicating both past treatment and an ongoing need for treatment to address both the Applicant’s physical and psychological issues and the latter stating that her mental health condition was now stable, although her PTSD condition was not fully diagnosed, was not fully treated and stabilised.
[39] Ibid, page 155.
[40] Ibid, page 244.
The Tribunal notes that the Applicant, according to Ms Alexander, her Psychologist, has been diagnosed with PTSD and this is referenced in her report of 28 June 2019.[41] The Tribunal has very limited material before it to assess the impacts, if any, upon the functions of the Applicant. Also, the Tribunal has no evidence to indicate that the diagnosis has been confirmed by a Psychiatrist or a Clinical Psychologist in conjunction with a qualified medical practitioner. Ms Alexander’s report indicates that treatment is ongoing and that the condition is not yet stabilised. The Tribunal is therefore not able to make any further comment or conjecture regarding the alleged PTSD condition of the Applicant.
Condition 2 - Chronic Pain/Fibromyalgia - Table 1
[41] Ibid, page 245.
Points
Descriptors
0
There is no functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b) has no difficulty completing physically active tasks around their home and community.
5
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
30
There is an extreme functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) is completely unable to perform activities requiring physical exertion or stamina; or
(b) experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance.
(2) This impairment rating level includes people who require Oxygen treatment (e.g. the use of an Oxygen concentrator during the day or to move around).
The Applicant asserts that she has suffered from a chronic pain condition and Fibromyalgia since circa 2013. A report jointly created by Dr Paul Kubler, Director, Rheumatology, and Dr Amee Sonigra, Advanced Trainee in Rheumatology, dated 27 August 2013[42] stated that:
After having lengthy discussion about the symptoms and based on the examination findings and laboratory investigations, my impression is that of Fibromyalgia. I have had extensive discussion with Sian as well as with her father who accompanied her, regarding the diagnosis as well as management options.
[42] Exhibit 1, T6, pages 73 - 74.
From the structure of the report, it would appear that the principal consultation was conducted by Dr Sonigra and the report prepared by that Doctor following a physical review by Dr Kubler who co-endorsed the written report.
Dr Kubler discussed the diagnosis with the Applicant and endorsed the following management plan:
1Emphasis on guided physiotherapy regime to suit her;
2Regular psychology/psychiatry evaluation - particularly in view of ongoing stressors in her life.
3I have provided her an information sheet regarding Fibromyalgia along with links to websites to provide more information with the management aspects of Fibromyalgia.
A medical report dated 7 January 2014 prepared for Centrelink by the Applicant’s treating GP, Dr Claire Devlin[43], noted in relation to the Applicant’s Fibromyalgia condition that she was receiving physiotherapy with variable frequency and was currently taking Lyrica, Nurofen Plus and Targin. It also noted that she had at various times in 2013 been taking Arthrexin, Tramadol and Molic. The future or planned treatment for this condition was outlined as:
Exercise program, hydrotherapy, manage medication, consider Pain Clinic referral.
[43] Exhibit 1, T8, pages 82 - 95.
It was further noted that the Applicant’s compliance with recommended treatment was ‘usually compliant’, but the Applicant had ‘poor motivation’. The report also noted the lack of knowledge of the underlying cause of the condition and that a contributing factor was ‘depression & anxiety’.
The Applicant then engaged with Dr Julia McLeod, a Rehabilitation Physician, who prepared a report dated 9 January 2015[44] in which included the advice to consult a Psychologist who had an interest in treating chronic pain and the recommendation that:
I have reiterated that she should view her main treatments of her pain problem as non-pharmacological including physical and psychological therapies. She remains somewhat resistant to this idea although willing to attend the appointments with these therapists. It is difficult to ascertain how actively she will participate.
[44] Exhibit 1, T17, pages 112 - 114.
Dr McLeod also suggested the Applicant attend the half day CHANGES Pain Education Program and continue physiotherapy and engage with psychological strategies to manage her chronic pain.
The Applicant was seen on 3 August 2016 at the Professor Tess Cramond Multidisciplinary Pain Centre by Dr Mazyar Danesh, a Provisional Pain Fellow. In his report dated 9 August 2016[45], Dr Danesh made the following observations:
Sian has seen a Physiotherapist through yourself and only tends to see the Physiotherapist when her pain is out of control. She has also been seeing a Psychologist through Health Care Plan in Nundah to discuss about various problems including pain anxiety and stress. She appeared unsure whether or not seeing a Physiotherapist or Psychologist has been helpful so far.
The overall impression I get is that Sian has remained pre-contemplative about adopting an active approach towards more efficient management of her pain for a long time and the fact that she has not attended any of our Pain Education Programs for the last two years does support this. Today I spent some time and reiterated the fact that engagement with our services is unlikely to result in any progress unless Sian accepts to participate in self-management strategies. She did appear to agree with this and therefore she is happy to attend our one day Pain Education Program - CHANGES which I have booked for her. I have also booked her for a review appointment in six months (sic) time and if by then she is keen to shift her pre-contemplative frame of mind to a more contemplative state towards positive change then we can book her for further review appointments, otherwise it might be best to discharge her from our clinic.[46]
[45] Exhibit 1, T10, pages 142 - 143.
[46] Exhibit 1, T10, page 98.
It is confirmed in the material before the Tribunal[47] that the Applicant did attend the CHANGES half day program at the Royal Brisbane and Women’s Hospital Multidisciplinary Pain Clinic on 11 January 2017. This was basically an education program to assist chronic pain sufferers to cope with their condition. The program presented education sessions on:
· Pain Neurophysiology/Pacing - Physiotherapist;
· Managing Emotions - Psychologist;
· Pain Medications and Procedures - Pain Medicine Consultant;
· Pacing/Mind/Body Strategies - Occupational Therapist.
[47] Exhibit 1, T16, pages 111.
In the letter from the Multidisciplinary Pain Centre it is noted that it was recommended that the Applicant trial the strategies presented during the CHANGES Pain Education Program and that the Applicant was encouraged to visit their General Practitioner to discuss their ‘future pain management pathway’.
It is also noted in that letter that the Applicant, having attended the CHANGES Pain Education Program, had an opportunity to participate in an Integrated Allied Health Assessment. The program also provided options for treatment at the Centre after the Integrated Allied Health Assessment which included a two week Intensive Pain Management Program as an outpatient, a two day per week over an eight week intensive outpatient program or focused individual treatment sessions with members of the Multidisciplinary Team.
In a discussion with Dr McLeod on 7 September 2017, a JCA noted in a Memorandum of that conversation[48] that Dr McLeod last saw the Applicant in February 2017 and noted the following:
Sian was due to attend land-based and water-based physiotherapy, however Sian cancelled all appointments and there are no further appointments pending. Hydrotherapy in a local community pool has been recommended. Sian requires an active physiotherapy program with a home-based exercise program.
Sian has made limited progress since she has been referred to RBWH Pain Clinic. She has not engaged very well at all. Appointments have focussed (sic) on trying to motivate Sian to engage in rehabilitation to increase physical activity, tolerance and endurance. Sian does not follow through with recommendations. Progress has been strongly limited by psychological factors.
Sian requires a proactive treatment approach involving regular and ongoing psychological input which she has not had. This should involve a motivational interviewing and anxiety management approach to pain management. Focus should be on non-drug ways to cope with pain and encouraging a graded return to activity. She requires active self-management rather than a passive strategy.
RBWH Pain Clinic offers various pain management programs, however she has not been referred as Dr McLeod has deemed Sian as not suitable. Sian has attended the CHANGES Pain Education Program. She was booked in to attend the Healthy Eating and Lifestyle Program in 2015 to address weight issues, however was removed from the program following non-attendance x 2.
Sian has poor sleep hygiene which impacts on coping skills and pain management.
[48] Exhibit 1, T24, pages 141 - 143.
The Applicant was reviewed by Specialist Neurologist Dr Jua-Haur Tho at the RBWH Neurology Clinic and in his report to the Applicant’s GP, Dr Walters, dated 27 June 2018[49] he suggested that the Applicant be referred back to the Rheumatologist who had treated her some years before and diagnosed her Fibromyalgia condition. This suggestion was made by Dr Tho on the understanding that there existed a new treatment for Fibromyalgia patients which would be better than Gabapentin that she had previously been prescribed.
[49] Exhibit 1, T35, pages 200.
The Applicant was referred back to the Rheumatology Specialist Outpatients Clinic at the Metro North Hospital and Health Service. She was reviewed by Dr Sumant Kevat, Visiting Consultant, who provided a report dated 24 April 2019[50] in which inter alia he made comment in the following terms:
In terms of symptoms, she continues to focus on pain levels and with the emphasis on exacerbation by any physical exertion. She does, however, seem to have a reasonably functional level of activity. For example, she drove to the shopping centre and spent an hour there the day before the consultation. In her share accommodation, she does the bathroom herself, and contributes to the household chores. Clinically, there are no specific findings on musculoskeletal examination.
I would comment that the state of pharmacotherapy for Fibromyalgia is that, for most agents, the numbers needed to treat to get a response are of the order of 10:1 and the effectiveness is minimal as well as poorly sustained. In that setting, the quest for new and more effective medications can itself become a counter-productive focus. I have emphasised the primacy of graded exercise as a means of reducing pain levels, and I have encouraged contemplating a meaningful occupation.
[50] Exhibit 1, T47, pages 237.
It is acknowledged that this report was generated some time after the Qualification Period, however, it serves to indicate that the Applicant had a reasonable level of functionality and that Dr Kevat considered it of primary importance to undertake graded exercise as had been recommended throughout the existence of her condition as a necessary therapy for pain relief.
The Tribunal also notes the reports of Mr Gavin Crouch[51], Chiropractor, and Michael Fernandez[52], Physiotherapist, dated 4 April 2018 and 4 June 2018 respectively. Mr Crouch confirms that he has been the Applicant’s Chiropractor for 14 years and has treated her spine and mid-thoracic region to relieve long-term pain and Mr Fernandez of Allsports Physiotherapy reports that he had treated the Applicant since 2013 for various musculoskeletal complaints, predominantly of the lower back, neck and shoulder. The Applicant’s Medicare Patient History Report[53] indicates that Mr Fernandez treated the Applicant on nine occasions between August 2016 and June 2018. However, there is no evidence of the specific condition or conditions which were addressed at each of these consultations.
[51] Exhibit 1, T27, page 153.
[52] Exhibit 1, T28, page 154.
[53] Exhibit 2, ST16, pages 418 - 439.
The Applicant’s treating Psychologist, Ms Alexander, shortly prior to the commencement of the Qualification Period, recommended that the Applicant required ongoing psychology treatment for the purpose of addressing not only her mental health issue, but also her physical health issue. Ms Alexander considered that if the Applicant was to return to the RBWH Pain Clinic, it would assist with her pain management strategies.[54]
[54] Exhibit 1, T29, page 155, ibid.
Such a recommendation is, in the view of this Tribunal, in keeping with Specialist and other complimentary professional advices previously and, it may be mentioned, continually and consistently proffered to the Applicant to assist her in addressing her not inconsequential condition of Fibromyalgia and chronic pain.
The Applicant, in her evidence to the Tribunal, said that she was unable to continue with a pain program at RBWH as she was changing residence from her parents’ home to another residence which placed her into another service area. She also gave a reason that she was unable to meet the costs of fuel and parking at the RBWH. The program she was scheduled to participate in was to take place in June 2017. She told the Tribunal that she did her own program privately instead. The Applicant told the Tribunal that she saw the Physiotherapist through her private health cover and also her Chiropractor for remedial massage. She stated that she attended Brisbane Minds for psychology under a Mental Health Care Plan. Unfortunately, the Applicant had no copy of such a Plan in her material available to the Tribunal to help the Tribunal understand the program she was undertaking. It is however, to be noted that the formal intensive program which the Applicant states she was unable to proceed with extended over an eight week period, with participation required two days per week as an outpatient. It involved, in the words of the Applicant:
… The psychology, physiotherapy, hydrotherapy, Dietician, all of that, in a two month course.[55]
[55] Transcript of Proceedings, page 33.
The Applicant’s evidence to the Tribunal in relation to her undertaking the home exercise program set by her Physiotherapist is also somewhat different to that she is recorded as providing to the JCA. The Applicant is recorded as stating to the JCA that she did not undertake the home exercise program ‘as it is too painful, she does walk to the shops regularly’.[56] However, she told the Tribunal that:
… My exact words - well not exact, but roundabout words were, to her was, some days I could do it and other days I couldn’t because the pain level was too high.[57]
[56] Exhibit 1, T38, 209 - 219 at page 211.
[57] Transcript of Proceedings at page 30.
She then went on to indicate that she did floor-based exercises, however, the description of the exercises she outlined was in fairly vague terms as evidenced by the following exchange between Mr McLaren and the Applicant:
Right, okay. So what, sort of, exercises would it involve, or what, sort of, exercises would you do on a good day?
- - - I don’t know how you really explain them. Almost like, yoga-like, stretching and stuff like that, just to basically loosen up any tight muscles in the back, legs, head, wherever the pain was at that given moment.
Right, right?
- - - Or hips.
This lack of specificity regarding the Applicant’s description of her exercise program is, to a degree, tending to raise the question as to how regular and ordered the Applicant’s self-regulated exercise regime was. It also tends to reinforce the opinion of her treating Specialists and others that she was not embracing the Pain Management Program with any consistent enthusiasm. The Tribunal notes their view that there is an attitude of resistance and lack of motivation to engage with any program of remediation by the Applicant.
It is clear to this Tribunal that her Consultants regularly refer in their treatment outlines to dietary considerations in addition to the other necessary therapies she is to undertake. The Applicant’s interpretation of this suggested intervention is that it is only relative to the regulation of her diabetes Type 2 condition. It is clear to this Tribunal, however, that her Consultants see weight loss as a critical part of her program to become as well as she can within the parameters set by her condition. In fact, in no fewer than six of the medical and associated discipline reports, is the concern of the Applicant’s weight mentioned. The relevant reports relate to the period from 2009 through to 2018 and are listed below:
(a)Report of Dr Winifred Sedhoff, dated 14 October 2009[58]:
[58] Exhibit 1, T4, pages 57 - 71 at page 68.
Obesity noted as other condition, the treatment for which was described as ‘weight management’ and the impact on ability to function as: ‘Reduced endurance, unable to stand for prolonged periods.’
(b)Report of Dr Danesh, dated 9 August 2016[59] noted the Applicant’s weight as 136 kilograms;
[59] Exhibit 1, T10, page 98, ibid.
(c)Report of Dr McLeod, dated 9 January 2015[60] where Dr McLeod commented:
[60] Exhibit 1, T17, page 112 at 113, ibid.
She was also complaining of patellar pain and crunching and examination was consistent with possible early patellofemoral osteoarthritis. I have said that the treatment for this in someone of her age group is quad strengthening, a general conditioning and weight loss.
(d)Report of Dr McLeod, dated 7 September 2017[61] where Dr McLeod commented to the JCA:
She was booked to attend the Healthy Eating and Lifestyle Program in 2015 to address weight issues, however, was removed from the program following non-attendance x 2.
(e)Report of Dr Walters, GP, dated 30 October 2017[62] where Dr Walters commented:
The plan for future treatment is ongoing psychology, physio, exercise and weight loss and Pain Specialist Clinics as needed.
(f)Report of Ms Michelle Alexander, Psychologist, dated 5 June 2018 lists ‘overweight’ as an observation.
[61] Exhibit 1, T24, page 142 at 143, ibid.
[62] Exhibit 1, T25, page 144, ibid.
This observation by the Tribunal is not a criticism of the Applicant’s obesity issue, it is drawn as an indication that her treating professionals see its apparent dismissal by the Applicant as not forming part of the relevant treatment for her Fibromyalgia and chronic pain condition as an aspect of her Fibromyalgia and chronic pain management plan that still needs her attention. It is clear to the Tribunal that these professional practitioners consider a reasonable attempt by the Applicant to reduce weight as an important, if not critical, step in her treatment regime, along with the other co-therapies planned. The Tribunal acknowledges the importance of diet in the control of the Applicant’s diabetes condition, however, it also considers that in the context of this matter, it takes on another significant importance in treating the Applicant’s pain condition.
It is the view of this Tribunal that unless and until the Applicant has undertaken all reasonable treatment as proposed, her Fibromyalgia and chronic pain condition is not fully treated and fully stabilised. The Tribunal is further reinforced in this view by the post-qualification response document from Drs McLeod and Boon[63] to Dr Walters, the Applicant’s treating GP, and provided by the Applicant as on 11 October 2018 outside of the Qualification Period but relevant to the issue as to whether the Applicant’s chronic pain condition was at that time fully diagnosed, fully treated and fully stabilised. The commentary in that document by the authorising Doctors is instructive:
Dear Dr Walters,
Please find attached our previous letters. Sian needs to engage in longer term physical and psychological rehabilitation in the community. If she is able to do this, she may be suitable for our Multidisciplinary Pain Education Programs in the future. Please re-refer if she can demonstrate her commitment to active rehabilitation. We are happy to be contacted by yourself for phone advice if required. This referral has been reviewed by Dr J. McLeod & Dr K. Boon.
[63] Exhibit 1, T41, page 223 at 224.
The Tribunal acknowledges that the material tendered by the Applicant in relation to the condition of Fibromyalgia produced by the Mayo Clinic and marked Exhibit 5 in these proceedings. The article is entitled ‘Fibromyalgia - Symptoms and Causes - Mayo Clinic’ and was downloaded on 13 November 2019. The Tribunal notes the general information in the document regarding the symptoms of the complaint and the statement that it seems there may be no cure for the condition but that symptoms may, however, be controlled by medication, exercise, relaxation and stress reducing measures. The treatments outlined therein are also not in discord with the material outlined in the Secretary’s Statement of Facts, Issues and Contentions[64] where that document makes reference to the International Association for the Study of Pain - Pain Clinical Updates December 2020 wherein it was stated that:
Of all approaches to the treatment of chronic pain none has stronger evidence basis for efficacy, cost-effectiveness, and lack of iatrogenic complications than interdisciplinary care …. Typical treatment provided includes three common elements:
(1)Medication management,
(2)Graded physical exercise, and
(3)Cognitive and behavioural techniques for pain stress management.
[64] Exhibit 3, pages 1 - 22 at page 13, paragraph 73.
In Australia, the National Pain Strategy (2010) is quoted as emphasising the need for:
Coordinated multidisciplinary assessment and management involving, at a minimum, physical, psychological and environmental risk factors in each patient.
and recognises that interdisciplinary care has the strongest evidence basis for positive outcomes.
The material before the Tribunal indicates that the Applicant, although having consulted a fairly broad cohort of treating professionals regarding her Fibromyalgia and chronic pain condition, had only a very limited engagement with the program upon which her treating specialists and co-therapists agreed in general. It is clear to the Tribunal that the Applicant attended only one of the formally structured programs developed by the RBWH Multidisciplinary Pain Clinic, namely, the CHANGES Pain Education Program and no others prior to and during the Relevant Period. The Tribunal finds that her Physiotherapist provided a home exercise program that was followed at best only so far as the Applicant was happy to reach. The Tribunal considers her evidence in this regard fairly vague and self-reported and thus unreliable. The Tribunal also finds itself agreeing with the Secretary’s contention that the focus throughout the Applicant’s psychological treatment was certainly not strategically concerned with any of her pain management requirements.
The Tribunal has already noted the Applicant’s post-Qualification Period consultation with the Rheumatologist Dr Kevat and the Multidisciplinary Pain Clinic’s letter containing its assessment of her lack of suitability at that time, to undertake the programs provided by them. Although these events were outside the Relevant Period, they are still significant as they clearly indicate in the case of rheumatology that:
(a)it confirmed the Applicant was still to undergo recommended treatment for her pain condition and the consultation further confirmed that;
(b)although there was no new pharmacological treatment for Fibromyalgia, the treatment recommended by Dr Kevat accorded with the program of graded exercise already suggested for the Applicant, but poorly executed by her;
(c)that in the matter of the Pain Management Clinic, it confirmed that the Applicant could not have, at the Qualification Period, completed all reasonable treatments as advised and was thus required to engage in longer term physical and psychological rehabilitation in the community before engaging with the Pain Clinic’s program.
The Tribunal considers that given the Applicant’s lack of meaningful engagement with her program of treatment for her chronic pain condition, it is appropriate to consider the decided cases relating to the concept of ‘reasonableness’ attaching to a proposed treatment. In the matter of Dragojlovic and Director-General of Social Security [1984] FCA 6, Smithers J. held:
A disability which can be relieved by treatment which is reasonably available is not permanent (emphasis added). But where the claimant is a person who actually cannot, for fear, or religious beliefs, for example, or for some other reason of a genuinely compulsive nature, accept that treatment, the question is whether his disability is one which can, in fact, be relieved.
… To treat an incapacity as permanent, simply because a claimant will not take steps to be cured, would be unacceptable from any point of view. A person with diabetes who refused to take insulin could hardly be thought, without more, to be permanently incapacitated (emphasis added). But if further facts be added, such as the person refused insulin on genuine and compelling religious grounds, or because of a baseless but genuine fear of death or injury therefrom, then the situation is different. (emphasis added)
This case applied a subjective test to consider whether or not there was a medical or ‘other compelling reason’ to refuse treatment. In the later decision of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Jansen [2008] FCAFC 48, the Full Court of the Federal Court stated at paragraph [39]:
… The appropriate question for the decision maker to ask is, ‘Am I satisfied that there is a reason that compels, in this case, Mr Jansen … not to undertake treatment?’ Put this way, it is not a choice between mutually exclusive objective and subjective tests, but a simple formulation which involves some elements of each (emphasis added).
The matter of Jansen was concerned with the interpretation of the provisions in the Introduction to the Impairment Tables previously contained in Schedule 1B of the Act. However, the Guidelines to the current Impairment Tables make it clear that in assessing whether there is a medical or other compelling reason for a person to refuse to undergo recommended medical treatment, both an objective and subjective element must be considered. Guideline 3.6.3.05 states:
‘The person’s views (the subjective test) and all available information on treatment options, risks etc. (the objective test) must be considered by the assessor in such situations.
If a person has not had reasonable treatment due to factors that are not of a compelling nature (e.g. lack of personal motivation that is not due to their medical condition), then their condition would not be considered permanent for DSP purposes, as it is not fully treated and stabilised.’
In the matter of Eckersley and Secretary, Department of Family and Community Services [2001] AATA 798, the Applicant had been recommended by his Doctors to undertake psychological counselling and medication by way of antidepressants. The Applicant in that matter refused to undertake any of the recommended treatment on the basis of his own personal views of the risk and efficacy of antidepressant medication. Senior Member Bullock determined that his refusal to undertake treatment by way of counselling, at the least, which did not pose any risk or harm to the Applicant, meant that the condition was not fully treated and stabilised. The Tribunal considers that the Applicant in this matter has had proposed to her, a course of reasonable treatment which could be expected to result in an improvement in her chronic pain condition over time. The Tribunal has therefore decided that at the Qualification Period the Applicant’s Fibromyalgia and chronic pain condition was not fully treated and fully stabilised at the Qualification Period and is not therefore capable of attracting any Impairment Points under Table 1 of the Determination.
Other conditions
The Tribunal notes that the Applicant has listed a number of additional conditions and it has considered them in this review.
The Tribunal has set out below the list of additional conditions and its findings relating to any Impairment Rating attaching to each condition:
Asthma and chronic sinusitis
Dr Walters, GP, in her report of 6 February 2017 noted the Applicant’s chronic sinusitis and asthma condition.[65] On 5 March 2018 the Applicant underwent endoscopic sinus surgery and on 8 June 2018 Dr Walters reported that the outcome of her surgery on her sinus symptoms was yet to be determined.[66] The Tribunal has no other material before it relating to this condition or its functional impact upon the Applicant. The asthma and chronic sinusitis condition is thus not found to be fully diagnosed, fully treated and stabilised as at the Qualification Period. Thus, no Impairment Rating can be attributed to these conditions.
[65] Exhibit 1, T14, page 104, ibid.
[66] Exhibit 1, T31, page 160.
Migraines
The Applicant reports suffering from intermittent migraines.[67] It states that the Applicant has an episode every four to six months and takes pain medication on a self-medication basis. The Tribunal has no medical evidence before it of diagnosis, treatment or impact upon function.
[67] Exhibit 1, T38, page 214.
Hypertension, reflux and high cholesterol
The conditions as noted in the JCA Report[68] as being managed by medication and no functional impact is evidenced from these conditions.
[68] Ibid, page 217.
Type 2 diabetes
The JCA Report[69] noted that this condition was managed with diet only and that the Applicant did not, at that time, take medication for it. The Tribunal has no evidence before it relating to any functional impairment caused by this condition.
Summary of Impairment Points
[69] Ibid, page 217.
Condition
Table
Points Assigned
Mental health condition
Table 5 - Mental Health Function
Fully diagnosed but not fully treated or stabilised - 0
Fibromyalgia/chronic pain
Table 1 - Chronic Pain - Functions Requiring Physical Exertion and Stamina
Fully diagnosed, not fully treated and not fully stabilised - 0
TOTAL POINTS:
0
As the Applicant does not have a total of 20 or more Impairment Points under the Tables, she does not satisfy the requirement under section 94(1)(b) of the Act (the second of the requirements for DSP). She therefore does not qualify for DSP via this application.
Continuing inability to work
Given that this Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for the Tribunal to consider whether she satisfies the remaining criteria for DSP.
Additional observation
The Applicant has failed to reach 20 points or more via this application. The Tribunal understands that her conditions may have worsened or become fully diagnosed, treated and stabilised since the Relevant Period relating to this DSP claim. The Applicant may therefore benefit from lodging a fresh Application for DSP with additional and more recent medical evidence.
CONCLUSION
The Applicant does not qualify for DSP because her conditions cannot be assigned any Impairment Points during the Relevant Period.
Accordingly, the decision under review is affirmed.
I certify that the preceding 83 (eighty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM
...............................[SGD]......................................
Associate
Dated: 24 July 2020
Date(s) of hearing: 14 November 2019 Date final submissions received: 14 November 2019 Advocate for the Applicant: Kevin Conway Solicitors for the Respondent: D McLaren
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