Crematy and Secretary, Department of Social Services (Social services second review) - [2020] AATA 4648

Crematy and Secretary, Department of Social Services (Social services second review) [2020] AATA 4648 (19 November 2020)
Division:GENERAL DIVISION
File Number:2020/1980
Re:Jason Crematy
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:19 November 2020
Place:Brisbane

The decision under review is affirmed.
................[SGD]..........................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Dragojlovic and Director-General of Social Security [1984] FCA 6
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION
Member D Mitchell
19 November 2020
INTRODUCTION

On 13 March 2019, Mr Jason Crematy (the Applicant) lodged a claim for the disability support pension (DSP) (the first claim).[1]
[1] Exhibit 1, T Documents, T7, pages 71-73, Claim for DSP.
On 19 March 2019, the Applicant was sent an SMS message by the Respondent stating that his claim for DSP had been approved.[2] This was an error and as such the Applicant’s rate of social security payments did not change and his application was not further assessed.
[2] Exhibit 1, T Documents, T15, page 151 and 153, Medical and Other Evidence provided by the Applicant: Screenshot – Your DSP has been approved; and Exhibit 3, Applicant email attaching: History of Claims.
On 28 August 2019, the Applicant lodged another claim for DSP (the second claim).[3] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work to include: “lumbar spine disorder, PTSD, cervical and lumbar disc damage, anxiety and depression”.[4]
[3] Exhibit 1, T Documents, T16, pages 155-157, Claim for DSP.
[4] Exhibit 1, T Documents, T16, page 155, Claim for DSP.
The Applicant’s second claim was rejected on 21 September 2019,[5] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 20 December 2019.[6]
[5] Exhibit 1, T Documents, T22, pages 186-187, Centrelink Notice: Rejection of DSP claim.
[6] Exhibit 1, T Documents, T28, pages 202-209, Authorised Review Officer Decision and Notes.
An ARO having found the Applicant’s first claim was taken to have been rejected on       13 June 2019,[7] reviewed and affirmed the decision to refuse the Applicant’s claim on              23 December 2019.[8]
[7]     Pursuant to section 39(1) of the Administration Act an application for DSP may be taken to have been rejected where no decision has been made within the period of 13 weeks after the day on which the claim was made.
[8]     Exhibit 1, T Documents, T29, pages 210-217, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of these decisions by the Social Services and Child Support Division of this Tribunal (SSCSD),[9] who affirmed the decisions of the ARO to refuse the Applicant’s first and second claims for DSP on 18 March 2020.[10]
[9] Exhibit 1, T Documents, T31, pages 223-224 and T32, pages 225-226, Application for First-Tier Review.
[10] Exhibit 1, T Documents, T2, pages 3-8, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of these matters by the General Division of this Tribunal, by way of an application received on 3 April 2020.[11]
[11] Exhibit 1, T Documents, T1, page 1, Application for Review.
On 9 November 2020, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claims or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[12]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[13] and
3.does the Applicant have a continuing inability to work?[14]
[12]    Section 94(1)(a) of the Act.
[13]    Section 94(1)(b) of the Act.
[14]    Section 94(1)(c) of the Act.
Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[15]
[15] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[16]
[16] Sections 6(3) and (4) of the Determination.
As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered:
(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 planned in the next two years.[17]
[17] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[18]
(a)     either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)       the person has not undertaken reasonable treatment for the condition and:
(i)    significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)   there is a medical or other compelling reason for the person not to undertake       reasonable treatment.
[18]    Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[19]
[19] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[20] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[21]
[20] Section 6(2) of the Determination.
[21] Section 8(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[22]
[22] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[23]
[23] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[24]
[24] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Periods in this matter commenced on the dates that the Applicant lodged his claims for DSP being 13 March 2019 and 28 August 2019, and ending 13 weeks later on 12 June 2019 and 27 November 2019 respectively. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Periods.
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Periods and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[25] The Respondent considers the Applicant’s impairments that can be assessed in relation to first and second claims include spinal[26] and mental health[27] conditions.
[25]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 38.
[26]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 40-48.
[27]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 49-58.
The Tribunal accepts that the initial notification provided to the Applicant that his first claim for DSP was granted was an administrative error made by an officer of the Respondent. The Applicant told the Tribunal that he does not understand given the medical evidence how this notification was an error. Whilst a regrettable situation, such an error does not change the legislative entitlement to DSP. The Tribunal must consider the Applicant’s first and second claims for DSP afresh.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Periods did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and
2. if so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross-examination from the Respondent. The Tribunal considers that the Applicant was open with his answers to the questions he was asked and was forth coming in providing his evidence. The Tribunal accepts that subsequent to his involvement as a pedestrian in a motor vehicle accident in May 2017, that the resulting injuries have materially changed the Applicant’s life. It is clear from the Applicant’s evidence he would prefer to have not been involved in the accident and hence be able to reengage in his previous employment in the construction industry.
Spinal condition
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant’s spinal condition was fully diagnosed at the Relevant Periods. This point is not in contention.[28]
[28] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 40.
The Applicant was involved in a motor vehicle accident in May 2017. As part of the associated claim for compensation he was assessed by Dr Greg Gillett, Orthopaedic Surgeon and Dr Alan Hopcroft, General Surgeon (Orthopaedics). Dr Gillett provided a report dated 30 May 2018.[29] Dr Hopcroft provide reports dated 27 March 2018,[30] 11 April 2018,[31] 29 May 2018,[32] 22 August 2018.[33]
[29]    Exhibit 1, T Documents, T11, pages 95-105, Medical Report of Dr Gillet dated 30 May 2018.
[30]    Exhibit 1, T Documents, T15, pages 143-146, Medical Report of Dr Hopcroft dated 27 March 2018.
[31]    Exhibit 1, T Documents, T17, pages 159-160, Medical Report of Dr Hopcroft dated 11 April 2018.
[32]    Exhibit 1, T Documents, T11 pages 131-132, Medical Report of Dr Hopcroft dated 29 May 2018.
[33]    Exhibit 1, T Documents, T11, pages 112-116, Medical Report of Dr Hopcroft dated 22 August 2018.
In a report dated 30 May 2018, Dr Gillett, orthopaedic surgeon, diagnosed the Applicant with:[34]
… multiple soft tissue injuries with residual orthopaedic pathology reflecting musculoligamentous strain injury involving the cervical spine aggravating asymptomatic pre-existing degenerative changes and a musculoligamentous injury involving the lumbar spine aggravating pre-existing spondylolisthesis with degenerative changes involving the lumbar spine (asymptomatic).
[34] Exhibit 1, T Documents, T11, page 101, Medical Report of Dr Gillet dated 30 May 2018.
Both Dr Gillett and Dr Hopcroft recommended a number of treatments that the Applicant should engage with in relation to his spinal condition.
The Respondent contended that the Applicant’s spinal condition cannot be regarded as fully treated and fully stabilised in circumstances where there is no evidence that the Applicant had engaged in conservative treatment as recommended by orthopaedic specialists (including hydrotherapy, physiotherapy and a rehabilitation program).[35] The Respondent relied on the following:[36]
a. On 27 March 2018, Dr Hopcroft stated that it is highly like that the Applicant would be benefitted by a referral to year-round hydrotherapy to improve his spinal function (T15/146).
b. On 11 April 2018, Dr Hopcroft stated that the Applicant should be undertaking a regular program of intermittent cervical traction and mobilisation to improve neck function and regular hydrotherapy, with abdominal and back bracing exercises to improve lumbosacral spinal function (T17/160).
c. On 29 May 2018, Dr Hopcroft stated that the Applicant needed to concentrate on the programme of swimming (T11/131).
d. On 30 May 2018, Dr Gillett, started that the Applicant was not a candidate for surgery (T11/102-103). He stated that, from an orthopaedic perspective, management of the Applicant’s condition involved strengthening the muscles supporting his lower back and an appropriate back care rehabilitation program. He stated that, to this end, assessment by a rehab provider, exercise physiologist and physiotherapist on some 10 occasions at approximately $100 per visit for local assessment, education of his pathology and supervision of an appropriate back care exercise regime would be appropriate. He stated that, regarding his neck, the Applicant required one visit to the physiotherapist and instruction in appropriate neck strengthening exercises.
e. On 22 August 2018, Dr Hopcroft stated that he had not seen the Applicant since 27 March 2018 and, at that time, it was his opinion that the Applicant was not a candidate for any form or neurosurgical review or intervention and that he should continue with a conservative management program (T11/115). He stated that he had suggested the use of intermittent cervical traction for the Applicant’s neck pain along with hydrotherapy to improve his back and core muscle strength.
f. The Applicant gave evidence to the AAT1 that he had not attended a rehabilitation program or seen a physiotherapist, and had only recently had some hydrotherapy (T2/7).
[35] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 45.
[36] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 46.
At the Hearing the Applicant told the Tribunal that:
·His spinal condition is fully treated and fully stabilised with pain relief medication.
·His spinal condition was caused by a car accident where he was a pedestrian and he is lucky to be alive.
·He will never be able to do his normal job ever again. He will never be able to return to construction or air conditioning work or work for 8 hours a day ever again. He can not even stay on his feet for an hour.
·He had difficulties doing house duties, for example he twisted his back and his knee gave way.
·His GP letter states that his spinal condition is fully treated and fully stabilised so he should be on the DSP.
·Up until the beginning of this year (2020) he was mostly laying down in bed and was not all that active at all. This was due to the pain. When he did push himself to do more he would experience more pain.
·He believes he meets the 20 point rating for his spinal condition.
·Winter is particularly difficult, the cold seems to make him go backwards.
·His spinal condition is a permanent injury.
·He had a pass for the hydro pool and did go a couple of times in 2019 but his body could not handle it.
·Hydrotherapy is no different than a hot bath or heat pack. He knows how to sooth his pain and when to do and not do things.
·Going to the hydro pool is just a pool with warm water with no one qualified to give him instructions, it is not helpful.
·He saw a physiotherapist in Tugun using his 5 free sessions however it will only work when his body is ready.
·Swimming was too much activity.
·He had limited movement in his neck but can move it from left to right, however experiences pain.
·It depends on his nerve pain how long he can sit down for.
·He sometimes has trouble getting up from lying down so he needs to roll to get up from his bed.
·He tries not to be too active as it sets him back again.
·He wakes up and plods around, trying not to be in pain.
·He had tried acupuncture and now has an electronic acupuncture machine he uses at home and that helps.
·He feels like his back is fragile, that it will give way, so he has to be careful.
·He can no longer go into the surf anymore.
·He went to the river once last year, got in the water and then got straight out and sat on the bank for 10 minutes before he went home.
·He is managing his situation and injuries as they are stable but they can become destabilised if he does something or tries too hard to do things he should not do.
·He uses hot water bottles and heat packs, his electro acupuncture machine, pressure point techniques and a ball to help managing his pain.

The Applicant sought to reply on a letter provided by Dr John Mullett, his general practitioner, dated 20 November 2019, which then had addendums dated 18 January 2020 and 29 April 2020, providing:[37]
To whom it my concern:
[The Applicant] [DOB] has been treated for his back injury and PTSD and is considered to have reached a point of maximum stabilisation. No extra treatment options are available with expectation of improvement.
Current medication: [provided]
He informs me that he spends most of his time in bed.
Addendum 18/1/20: date of stabilisation March 2019. Treatment from this practice since 26/6/18.
Addendum 29/4/20: There has been no change in his condition and he remains unable ….
[37] Exhibit 1, T Documents, T34, page 228, Letter from Dr Mullett dated 20 November 2019; Exhibit 4, Applicant email enclosing Medical Evidence dated 1 October 2020; and Exhibit 5, Applicant email enclosing Medical Evidence dated 1 October 2020.
Dr Mullett completed a number of Medical Certificates to be provided to Centrelink throughout and after the Relevant Periods. Dr Mullett did not consistently record the permanency or prognosis of the Applicant’s spinal condition. On some occasions Dr Mullett did not record the status of the condition or a prognosis, on other occasions he provided that the condition was permanent or a temporary exacerbation of a permanent condition and was likely to persist for more than 24 months or uncertain.[38]
[38] Exhibit 1, T Documents, T14, page 140, Medical Certificate by Dr Mullett dated 16 August 2019; T17, page 167; Medical Certificate by Dr Mullett dated 7 March 2019; T24, page 191, Medical Certificate by Dr Mullett dated 4 November 2019; T34, page 229, Medical Certificate by Dr Mullett dated 28 January 2020; Exhibit 4 Applicant email enclosing Medical Evidence dated 1 October 2020; and Exhibit 5, Applicant email enclosing Medical Evidence dated 1 October 2020.
The Applicant did not call Dr Mullett as a witness and as such the Tribunal was unable to test the basis for the opinion expressed in the letter dated 20 November 2019, subsequent addendums and conflicting Medical Certificates. On this basis, while the Tribunal understands that Dr Mullett is clearly supportive of the Applicant’s claims for DSP, the Tribunal places no weight on the letter provided by Dr Mullett.
The Tribunal prefers the specialist evidence in relation to reasonable treatment relating to the Applicant’s spinal condition. The Tribunal considers that such treatment was recommended by Dr Gillet and Dr Hopcroft on the basis that it would improve his condition. There is no evidence to the contrary or that provides that such treatment would be unlikely to result in significant functional improvement to a level enabling in the Applicant to undertake work in the two years following the Relevant Periods.
While the Tribunal accepts that the Applicant has adapted to managing his situation and injuries as best he can and that he considers he can self-manage his condition rather than further engage in the treatment recommended by the specialists, there is no corroborating evidence before the Tribunal that such treatment would not result in significant functional improvement or that there is any reason that the Applicant should not engage with that treatment.
An Applicant’s own belief in the efficacy or non-efficacy of recommended treatment does not amount to a medical or other compelling reason to refuse treatment. In Dragojlovic and Director-General of Social Security [1984] FCA 6, Smither J held:
A disability which can be relieved by treatment which is reasonably available is not permanent. 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. 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)
There is no evidence that the Applicant has engaged in a rehabilitation program or that he has been referred to a pain management clinic, both of which contrary to medical advice otherwise represent reasonable treatment for the purposes of section 6(7) of the Determination.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, the Tribunal is satisfied that the Applicant’s spinal condition was fully diagnosed at the Relevant Periods, however was not fully treated and fully stabilised as he had not undertaken the recommended treatment for his condition. Accordingly, this condition is not considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points for this condition.
Mental health condition
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant has had a mental health condition from at least 1 June 2016. It is the diagnosis at the Relevant Periods that is unclear.
A summary of that evidence is outlined by the Respondent as follows:[39]
a. The Employment Services Assessment Report dated 29 November 2019 referred to historical evidence from a clinical psychologist, Mr Evans, dated 26 May 2016, which noted that the Applicant had previously been diagnosed with bipolar affective disorder with anxiety and depression (T27/198).
b. On 5 June 2016, Dr Persley, psychiatrist, stated that he had assessed the Applicant on 1 June 2016, who had described symptoms of anxiety and depression occurring in the context of an acrimonious post-divorce situation particularly regarding access to his three children (T18/176). He stated that the Applicant’s reported symptoms of anxiety and despondency would be referred to as an adjustment disorder occurring in a situational crisis (T18/176).
c. On 1 March 2017, Dr Jeffery, general practitioner, stated that the Applicant had been suffering from severe PTSD, anxiety and stress for the last few years, related to the fact that he was not able to see his children (T18/177).
d. In medical certificates dated 19 June 2019 (T15/152) and 16 August 2019 (T14/140), Dr Mullett diagnosed the Applicant with PTSD.
[39] Exhibit 2, Secretary’s Statement of Facts & Contentions, paragraph 51, page 8.
To be considered fully diagnosed, Table 5 of the Impairment Tables, which relates to mental health, requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[40]
[40] Impairment Table 5 – Mental Health Function, Part 3 of the Determination.
The evidence before the Tribunal provides that treatment for the Applicant’s mental health condition has included medication prescribed by Dr Mullett[41] and that he had engaged in counselling prior to 2018.[42] Dr Mullett referred the Applicant to a psychologist under a GP Mental Health Plan on 28 March 2019.[43]
[41]    Exhibit 1, T Documents, T11, page 122, Medical Certificate by Dr Mullett dated 7 March 2019; T14,page 140, Medical Certificate by Dr Mullett dated 16 August 2019; T15, page 152, Medical Certificate by Dr Mullett dated 19 June 2019; Exhibit 4, Applicant email enclosing Medical Evidence dated 1 October 2020; and Exhibit 5, Applicant email enclosing Medical Evidence dated 1 October 2020.
[42]    Exhibit 1, T Documents, T4, page 56, Employment Services Assessment Report; T5, pages 61-62, Job    Capacity Assessment Report; T6, page 67, Employment Services Assessment Report; T18, page 177, Medical Report Dr Riaan Jeffrey dated 1 March 2017.
[43]    Exhibit 1, T Documents, T11, pages 125-128, Psychologist Referral by Dr Mullett dated 28 March 2019.
At the Hearing the Applicant told the Tribunal that:
·He is taking medication and sees his GP regularly.
·His GP said his PTSD is fully treated and fully stabilised so why is it not being accepted.
·He believes he meets the 20 point requirements in relation to his PTSD and anxiety.
·He has high anxiety from PTSD, it affects him going outside, walking across the road, especially pedestrian crossings.
·Since the accident he has seen a psychologist maybe once or twice, but had seen them for three months prior to the accident.
·His PTSD and anxiety flares up when he has to talk about or think about the past.
·When he did see Mr Evans, a psychologist he gave him tools and coping strategies. So, he does not need to keep seeing a psychologist. He has breathing techniques that help.
·He knows himself and his triggers so he is able to manage his PTSD and anxiety.
·He is comfortable with his condition and does not need to see a psychiatrist or psychologist as he does not want to relieve the events that caused his conditions.
·He stopped seeing Mr Evans because he had helped him. He knows himself and if he needs to see someone he will. Mr Evans gave him enough tools to manage his condition. He feels it is stable enough for him to manage it on his own.
·His GP did give him a Mental Health Care Plan last year, but he was not in a physical condition to get in a car and go and sit in a chair. He was like a recluse, the pain was so bad he stayed in bed. He realised it would not help to talk about it all again.
·He is doing the best he can to live his life an accept his situation.
·He tries to stay positive.
The Respondent contended that the Applicant’s mental health condition was not fully diagnosed, fully treated or fully stablished during the Relevant Periods on the basis that:[44]
·There is no diagnosis by a psychiatrist or clinical psychologist referable to the Relevant Periods.
·Engagement with a psychologist is reasonable treatment and that there is no evidence that this treatment was not expected to result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years.
·The fact that the Applicant was referred to a psychologist by his general practitioner strongly suggests that it was considered likely to assist the Applicant.
[44] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 52-58.
The Applicant sought to rely on a letter provided by Dr Mullett, dated 20 November 2019, and subsequent addendums dated 18 January 2020 and 29 April 2020[45] as reproduced at paragraph 34 above in relation to his PTSD.
[45] Exhibit 1, T Documents, T34, page 228, Letter from Dr Mullett dated 20 November 2019; Exhibit 4, Applicant email enclosing Medical Evidence dated 1 October 2020; and Exhibit 5, Applicant email enclosing Medical Evidence dated 1 October 2020.
Dr Mullett completed a number of Medical Certificates to be provided to Centrelink throughout and after the Relevant Periods. Dr Mullett did not consistently record the permanency or prognosis of the Applicant’s mental health condition. On some occasions Dr Mullett did not refer to the Applicant’s mental health condition and when he did he either did not record the status of the condition or a prognosis or alternatively provided that it was a temporary exacerbation of a permanent condition with the prognosis being uncertain.[46]
[46] Exhibit 1, T Documents, T14, page 140; 140, Medical Certificate by Dr Mullett dated 16 August 2019; T17, page 167, Medical Certificate by Dr Mullett dated 7 March 2019; T24, page 191, Medical Certificate by Dr Mullett dated 4 November 2019; T34, page 229, Medical Certificate by Dr Mullett dated 28 January 2020; Exhibit 4 Applicant email enclosing Medical Evidence dated 1 October 2020; and Exhibit 5, Applicant email enclosing Medical Evidence dated 1 October 2020..
For the reasons outlined above at paragraph 36, while the Tribunal understands that Dr Mullett is clearly supportive of the Applicant’s claims for DSP, the Tribunal places no weight on the letter provided by Dr Mullett. The Tribunal considers that the logical purpose for Dr Mullett referring the Applicant to a psychologist under a GP Mental Health Plan on 28 March 2019 was to provide him with access to treatment with the view of improving his condition.[47] There is no persuasive evidence to the contrary or that provides that such treatment would be unlikely to result in significant functional improvement to a level enabling in the Applicant to undertake work in the two years following the Relevant Periods.
[47] Exhibit 1, T Documents, T11, pages 125-128, Psychologist Referral by Dr Mullett dated 28 March 2019.
While the Tribunal accepts that the Applicant may have PTSD, anxiety and depression, based on the evidence before the Tribunal and the evidence provided by the Applicant at Hearing, the Tribunal finds that this condition was not fully diagnosed during the Relevant Period. There is no corroborating evidence from a psychiatrist or clinical psychologist that any of the previous diagnosis’ apply during the Relevant Periods or what the correct diagnosis was at that time.
Further, even had the Applicant’s mental health condition been fully diagnosed during the Relevant Periods, it was not fully treated and fully stabilised as he had not commenced treatment as outlined by the Mental Health Care Plan and there is no corroborating evidence before the Tribunal to suggest that further treatment would not result in significant functional improvement.
While the Tribunal accepts that the Applicant has adapted to managing his situation and putting to use coping mechanisms consistent with discussion at paragraphs 39 and 40 above, the Tribunal considers the Applicant’s own belief in the efficacy or non-efficacy of recommended treatment does not amount to a medical or other compelling reason to refuse treatment.
As such, the Applicant’s mental health condition cannot be considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points for the condition.
Other conditions
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant also suffered from a number of other medical conditions including a wrist fracture in 2015,[48] a left ulna fracture in February 2019,[49] a left patella dislocation in February 2019,[50] left ankle injuries[51] and tinnitus[52] (collectively other conditions).
[48]    Exhibit 1, T Documents, T4, page 56, Employment Services Assessment Report; and T5, page 61, Job    Capacity Assessment Report.
[49]    Exhibit 1, T Documents, T11, page 120, Robina Hospital discharge letter dated 13 February 2019.
[50]    Exhibit 1, T Documents, T9, page 78, Robina Hospital Physiotherapist Report by Mr Rob Schmidt dated 28          February 2019.
[51]    Exhibit 1, T Documents, T11, page 122, Medical Certificate by Dr Mullett dated 7 March 2019.
[52]    Exhibit 1, T Documents, T24, page 191, Medical Certificate by Dr Mullett dated 4 November 2019.
The Respondent contended that there is insufficient evidence regarding onset, treatment, prognosis, symptoms and functional impact of the Applicant’s other conditions for them to be accepted as being fully diagnosed, fully treated and fully stabilised or to be assigned an impairment rating under the Impairment Tables in relation to the Relevant Periods.[53]
[53] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 59-60.
At the Hearing the Applicant told the Tribunal:
·That he has tinnitus from the concussion he sustained in the car accident. The ringing is always in his ears and it impacts on and interacts with his PTSD and anxiety. He manages it by going to a quiet place and doing breathing exercises and then it is not so loud, but still annoying. He is getting used to living with it. There is no treatment for tinnitus.
·He injured his knee when he tried to pick up a washing basket. His back gave out on him and his knee twisted and popped out. He had not been able to see a knee specialist. He knows he will need an operation but can not afford to see a specialist. He has to be careful walking.
Having reviewed the material before it, the Tribunal considers there is a sparsity of information in relation to the Applicant’s other conditions, particularly in relation to diagnosis, treatment and functional impact.
Consequently, based on the limited information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, the Tribunal finds that the Applicant’s other conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Periods. Accordingly, these conditions are not considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points for these conditions.
Continuing Inability to Work
As the Tribunal has found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act during the Relevant Periods.
The Tribunal finds that the Applicant’s spinal condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Periods and therefore could not be considered permanent for the purposes of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points for this condition.
The Tribunal finds that the Applicant’s mental health and other conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Periods and therefore could not be considered permanent for the purposes of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points for these conditions.
The Tribunal finds that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..................[SGD]......................................................
Dated: 19 November 2020

Date of Hearing: 9 November 2020

Applicant: By telephone

Solicitors for the Respondent:
Mr Samuel Harvey

Services Australia