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

[2017] AATA 14

Curtis and Secretary, Department of Social Services (Social services second review) [2017] AATA 14 (12 January 2017)

Division	GENERAL DIVISION
File Number	2016/2881
Re	Andrew Curtis
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	12 January 2017
Place	Brisbane

The Tribunal affirms the decision under review.

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

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – disability support pension – requirement that the person’s impairment is of 20 points or more under the Impairment Tables not met – person has not actively participated in a program of support – requirement that the person has a continuing inability to work not met – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42; cl 3, cl 4(1), Sch 2, Pt 2

CASES

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

SECONDARY MATERIALS

Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

Guide to Social Security Law, version 1.228, released 3 January 2017

REASONS FOR DECISION

Senior Member A C Cotter

12 January 2017

INTRODUCTION

1. On 2 November 2015, Mr Andrew Curtis lodged a claim for Disability Support Pension (“DSP”).

2. The claim was rejected the following month on the ground that Mr Curtis had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables.

3. Mr Curtis unsuccessfully sought a review of the decision by an Authorised Review Officer (“ARO”). He in turn sought a first tier review of that decision by the Social Services & Child Support Division of this Tribunal (“SSCSD”). That, too, was unsuccessful.

4. Dissatisfied with the SSCSD’s decision, Mr Curtis has sought a review of it by the General Division of this Tribunal.

5. For the reasons I outline below, I consider that the SSCSD was correct and that its decision should be affirmed.

   BACKGROUND

6. Mr Curtis did not complete the section of his claim form which asked him to list any disabilities, illnesses or injuries that he had. However, in response to a question concerning his current treatment, he answered: “(m)edication for (b)ack injury, neck injury, knee problems and major (d)epression”.[1]

   [1] Exhibit 1, T Documents, T 14, page 93, claim form for Disability Support Pension dated 28 October 2015.

7. A letter from his general practitioner, Dr Mohammad Sadique, listed the conditions from which Mr Curtis was suffering as:

   1Anxiety with Depression – On medication, seeing Psychiatrist

   2Gastro-oesophageal Reflux Disease – on medications

   3Lumbosacral Disc Prolapse ?impinging nerve roots, Already referred to Neurosurgical Outpatient @ Goldcoast (sic.) Hospital, awaiting MRI, not able to work at all.[2]

   [2] Exhibit 1, T Documents, T 13, page 65, letter from Dr Mohammad Sadique dated 28 October 2015.

8. Mr Curtis also lodged with his claim form a medical certificate by a consultant psychiatrist, Dr Fawaz Mufti, confirming a diagnosis of major depressive disorder.[3] A few days later, Mr Curtis lodged a letter from Dr Mufti, stating that he had been seeing Mr Curtis at his clinic since 7 October 2015. He again confirmed his diagnosis of major depressive disorder and noted that Mr Curtis’ symptoms affected his concentration, attention and decision making capacity.[4]

   [3] Exhibit 1, T Documents, T 15, page 99, medical certificate of Dr Fawaz Mufti, undated.

   [4] Exhibit 1, T Documents, T 16, page 102, letter from Dr Fawaz Mufti dated 5 November 2015.

9. In early December 2015, Mr Curtis attended a face-to-face assessment with a Job Capacity Assessor (“JCA”). The JCA found that while the mental health and spinal conditions were fully diagnosed, neither condition was fully treated and stabilised.[5] As for the gastroenterological condition and the knee condition, the JCA concluded that there was insufficient medical evidence to consider whether they were fully diagnosed, treated and stabilised.[6]

   [5] Exhibit 1, T Documents, T 17, pages 104 and 105, Job Capacity Assessment Report dated 9 December 2015.

   [6] Ibid.

10. On 10 December 2015, Mr Curtis’ claim was rejected on the basis that he did not have 20 points or more under the Impairment Tables.[7]

    [7] Exhibit 1, T Documents, T 18, page 110, letter from Department of Human Services to Mr Curtis dated 10 December 2015.

11. An ARO subsequently affirmed the decision to reject the claim for DSP.[8] The SSCSD likewise affirmed the ARO’s decision.[9]

    [8] Exhibit 1, T Documents, T 22, pages 118-122, letter Department of Human Services to Mr Curtis dated 15 March 2016.

    [9] Exhibit 1, T Documents, T 2, pages 2-11, Social Services & Child Support Division decision and reasons for decision dated 19 May 2016.

12. Mr Curtis seeks a review of the SSCSD’s decision by the General Division of this Tribunal.

13. Before I consider the particular issues raised by Mr Curtis’ application, it is worthwhile reflecting on the key legislative provisions.

    THE LEGISLATIVE FRAMEWORK

14. Section 94 of the Social Security Act 1991 (Cth) (“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.

15. The Social Security (Administration) Act 1999 (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 case, 2 November 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[10] Therefore, the relevant period for considering whether Mr Curtis qualified for DSP is between 2 November 2015 and 1 February 2016. 

    [10] See Social Security (Administration) Act 1999 (Cth) ss 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.

16. Previous decisions of both the Tribunal and the Federal Court have emphasised that 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 13 weeks which followed it. Medical reports and other evidence that come into being after the relevant period may still be relevant, but only insofar as they are referable to an applicant’s condition during the relevant period.[11]

    [11] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, [34] (Member Breen); Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139, [32] (Deputy President Handley); Gallacher  v Secretary, Department of Social Services [2015] FCA 1123, [25]-[28] (Besanko J).

17. The Impairment Tables are contained in the Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”), a legislative instrument made under the Act.[12] 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.[13] 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.[14]

    [12] See Social Security Act 1991 (Cth) s 26(1).

    [13] See Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 5(2).

    [14] See Ibid, s 6(1).

18. 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.[15] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and be more likely than not, in light of available evidence, to persist for more than two years.[16]

    [15] See Ibid, s 6(3).

    [16] See Ibid, s 6(4).

19. The following factors are to be considered in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[17]

    [17] See Ibid, s 6(5).

20. 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 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]

    [18] See Ibid, s 6(6).

21. “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] See Ibid, s 6(7).

22. 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.[20]

    [20] See Ibid, s 11(1).

23. As regards the requirement that the applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. Essentially, they are that the applicant must:

    (a)have actively participated in a program of support (if he or she does not have a “severe impairment” as defined in s 94(3B) of the Act); and

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

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

24. A person’s impairment is a “severe impairment” if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are assigned under a single table.[21]

    [21] See Social Security Act 1991 (Cth) s 94(3B).

    ISSUES FOR THE TRIBUNAL

25. Based on the evidence that has been provided, there is no dispute that, at the relevant time, Mr Curtis had physical and psychiatric impairments for the purposes of s 94(1)(a) of the Act.[22] Consequently, the first of the requirements for DSP is satisfied.

    [22] See Exhibit 3, Secretary’s Statement of Facts and Contentions dated 3 November 2016, [18].

26. The remaining issues for me to consider are therefore:

    (a)whether, within the relevant period, Mr Curtis’ impairments attracted 20 impairment points or more under the relevant Impairment Tables; and

    (b)if so, whether Mr Curtis had a continuing inability to work within two years of the relevant period.

    I deal with those questions below.

    CONSIDERATION

    Did Mr Curtis’ impairments attract 20 impairment points or more?

27. I address this question by reference to each of Mr Curtis’ conditions.

    Back condition

28. There is no dispute that Mr Curtis has a long-standing back condition, arising in 1995 when he was involved in a motor vehicle accident. A number of medical reports from 1996 and 1997 were produced, confirming that he suffered from spinal issues at the time.

29. In particular, a consultant neurologist, Professor Michael Anthony, spoke of “a huge prolapse of the L4/5 disc, together with moderate prolapses of the discs above and below”. He noted that both analgesics and extensive physiotherapy had been tried by Mr Curtis, without benefit.[23] Professor Anthony concluded that “no medical treatment of any form is likely to help the patient”, suggesting that Mr Curtis be referred to either an orthopaedic surgeon or a neurosurgeon for “a laminectomy and removal of the prolapsed disc – so that he may obtain meaningful and permanent relief of his symptoms”.[24]

    [23] Exhibit 1, T Documents, T 5, page 54, medical report of Professor Michael Anthony dated 9 August 1996.

    [24] Ibid, page 55.

30. Mr Curtis in turn saw both a neurosurgeon, Dr Bernard Kwok, and an orthopaedic surgeon, Dr Peter Giblin.

31. Dr Kwok recommended surgical decompression, but suggested that further investigations be carried out prior to surgery. He said that surgery would carry a success rate of 70 to 80 percent for the relief of leg symptoms, provided persistent nerve root compression was confirmed. Dr Kwok said that surgery “is unlikely to eliminate all back pain” and that it was likely that Mr Curtis would “continue to suffer intermittent back pain regardless of the result of relief of the sciatic symptoms”.[25] Presumably in response to a question concerning Mr Curtis’ degree of permanent disability, Dr Kwok added that it was inappropriate to discuss that question at that stage, as “there is potential that the symptoms may improve with surgical treatment”.[26]

    [25] Exhibit 1, T Documents, T 7, page 57, medical report of Dr Bernard C. T. Kwok dated 6 September 1996.

    [26] Ibid.

32. Dr Giblin commented that while he believed that Mr Curtis would probably follow conservative treatment for a while longer, “his chronic back pain will eventually get the better of him and I believe that he will seek to have surgery”.[27] 

    [27] Exhibit 1, T Documents, T 8, page 59, medical report of Dr Peter E Giblin dated 13 November 1997.

33. Apart from having CT scans in January 2004 (which revealed a large disc extrusion resulting in significant spinal stenosis)[28] and May 2014 (which identified a “complex disc pathology at the L4/5 level”),[29] it appears that Mr Curtis did not consult with a specialist for almost 20 years.

    [28] Exhibit 1, T Documents, T 9, page 60, medical imaging report of Dr Alan Klevansky dated 12 January 2004.

    [29] Exhibit 1, T Documents, T 10, page 61, medical report of Dr Ashley Walton dated 27 May 2014.

34. In June 2015, Dr Sadique referred Mr Curtis to the Gold Coast Hospital and Health Service Neurosurgery Clinic (“GCH Neurosurgery Clinic”) “for further MRI & management”.[30]  The MRI was conducted on 6 January 2016.[31]

    [30] Exhibit 1, T Documents, T 12, page 63, request for consultation Gold Coast Hospital and Health Service Neurosurgery Clinic dated 16 June 2015.

    [31] Exhibit 1, T Documents, T 19, page 112, medical imaging report of Dr Alan Klevansky dated 6 January 2016.

35. Following receipt of the latest MRI results, Dr Sadique provided a further medical report on 18 January 2016. He noted that the CT and MRI “showed complex disc pathology compressing nerve”. He said that, considering the “long course of disability with numerous treatment(s) (Mr Curtis) will not benefit from surgery or further treatment”.[32]

    [32] Exhibit 1, T Documents, T 20, page 115, medical report of Dr Mohammad Sadique dated 18 January 2016.

36. In May 2016, Dr Sadique completed a questionnaire prepared by Basic Rights Queensland, in which he confirmed that Mr Curtis’ back condition was first diagnosed in 1996. He expressed the view that all reasonable treatments could be considered to have been undertaken by “96” (presumably meaning 1996), noting “saw physio, orthopaedic → nil improvement expected”.[33]

    [33] Exhibit 1, T Documents, T 25, page 124, Basic Rights Queensland questionnaire completed by Dr Mohammad Sadique, dated 5 May 2016.

37. In June 2016, Dr Sadique provided another report, reiterating what he said in his January report, but adding his opinion that the condition was fully treated and stabilised.[34]

    [34] Exhibit 2(b), medical report of Dr Mohammad Sadique dated 27 June 2016.

38. Mr Curtis told the SSCSD hearing that he had a follow up appointment scheduled with the GCH Neurosurgery Clinic for July 2016.[35]  However, no medical report of that consultation was produced. At the hearing before me, Mr Curtis said that he did not have a copy of any report from the consultation, but assumed that Dr Sadique would have a copy of any report that issued. When I asked him about the consultation and whether he could recall what was said to him at the time, Mr Curtis responded that he did not think he saw a neurologist or neurosurgeon, but rather, thought the person who saw him was a physiotherapist.

    [35] Exhibit 1, T Documents, T 2, page 8, Social Services & Child Support Division decision and reasons for decision dated 19 May 2016, [29].

39. There is no dispute that Mr Curtis’ back condition was fully diagnosed at the date of claim. However, the question remains whether it was fully treated and stabilised at the time.

40. For the Secretary, it was contended that the condition was not fully treated and stabilised as it had been only minimally treated over the last 20 years.[36] In particular, it was emphasised that, notwithstanding the worsening of the condition over that time,[37] there had been no review of treatment, no review by specialists and no pain management review.

    [36] Exhibit 3, Secretary’s Statement of Facts and Contentions dated 3 November 2016, [40]-[41].

    [37] See Exhibit 1, T Documents, T 14, page 95, Mr Curtis’ claim form dated 28 October 2015.

41. The Secretary also contended that Dr Sadique’s response to the Basic Rights Queensland questionnaire, to the effect that all reasonable treatment of the condition had been undertaken by 1996, was at odds, not only with the opinions of Professor Anthony and Dr Kwok at about that time, but also with Dr Sadique’s own referral to the GCH Neurosurgery Clinic in June 2015.[38]

    [38] Ibid, [39].

42. Mr Curtis maintained that his condition was fully treated and stabilised. In that regard, he relied on Dr Sadique’s letter of 27 June 2016 to that effect, as well as the doctor’s response of 5 May 2016 to the Basic Rights Queensland questionnaire. It was denied that the former was at odds with Dr Sadique’s referral to the GCH Neurosurgery Clinic, as “(t)here is no ongoing treatment because nothing can rectify my condition”.[39] As to the response to the questionnaire, Mr Curtis maintained that the orthopaedic specialists at the time had confirmed that the condition was treated and stabilised from 1996.[40] I address those arguments below.

    [39] Exhibit 2, letter from Mr Curtis to Tribunal dated 15 June 2016 (first page).

    [40] Ibid.

43. The starting point for this discussion is Mr Curtis’ claim that the doctors concluded as early as 1996 that his condition was treated and stabilised. While conservative treatment by medication and physiotherapy was not beneficial, it is clear that surgical treatment at that stage was a live option, with three doctors from different specialties canvassing the prospect. That is contrary to Mr Curtis’ contention, that the specialists agreed that all reasonable treatment had been undertaken. Far from saying that Mr Curtis’ condition was fully treated, Professor Anthony expressly raised the possibility of a laminectomy and removal of the prolapsed disc, so that Mr Curtis “may obtain meaningful and permanent relief of his symptoms”.[41] Dr Kwok noted that surgery carried a success rate of 70 to 80 percent for the relief of leg symptoms, although it was unlikely to eliminate all back pain and Mr Curtis would still likely continue to suffer intermittent back pain.[42] Dr Giblin thought it likely that Mr Curtis would have surgery after trying conservative treatment a while longer.[43]

    [41] Exhibit 1, T Documents, T 5, page 55, medical report of Professor Michael Anthony dated 9 August 1996.

    [42] Exhibit 1, T Documents, T 7, page 57, medical report of Dr Bernard C. T. Kwok dated 6 September 1996.

    [43] Exhibit 1, T Documents, T 8, page 59, medical report of Dr Peter E Giblin dated 13 November 1997.

1. For his part, Mr Curtis denied that the surgery option was a reasonable one. He had long discounted that as an option. Mr Curtis told the SSCSD that, after deliberation, he decided not to proceed with surgery because of the risks involved, including the chance he would be worse off and could lose his ability to walk completely.[44] He stated that his late brother had back surgery and experienced continuing difficulties.[45] At the hearing before me, Mr Curtis expanded on that explanation. While he described the three doctors as being “the top surgeons in Australia”, he said that his sister-in-law, a retired nurse, advised him not to have surgery. The fact that surgery may correct his condition was not considered good enough by Mr Curtis; he was not prepared to entertain the risk. He said that he had also undertaken his own research on the Internet before making the decision, saying that the treatment offered was not satisfactory for him. Mr Curtis also said that he did not choose the surgery option as nothing could rectify his condition.

   [44] Exhibit 1, T Documents, T 2, page 8, Social Services & Child Support Division decision and reasons for decision dated 19 May 2016, [24].

   [45] Ibid, page 9, [33].

2. Regardless of whether Mr Curtis’ decision not to undergo surgery in 1996 or the following years was reasonable or not, it is plain that at that time - and indeed, in the almost two decades that followed - that there were potential options for treatment available to him. Over that time, circumstances changed considerably. Mr Curtis told me that during that time, his degenerative condition worsened significantly. Undoubtedly, avenues for treatment expanded, with advances in medicine and technology to improve procedures and mitigate the associated risks, complications and side effects. It was open to Mr Curtis to explore with his doctors the various treatment options open to him, by seeking ongoing specialist advice and regularly reviewing his treatment regime, while treating symptoms with appropriate medications and pain management techniques. Mr Curtis did none of that, effectively closing his mind to those options and relying on the conclusion he formed some 20 years earlier.

3. While Mr Curtis might be correct that nothing could “rectify” his condition, that is not the test for determining whether a condition is treated and stabilised. One of the factors in considering whether treatment is reasonable is whether it can reliably be expected to result in “a substantial improvement in functional capacity”.[46] Similarly, when considering whether a condition is fully stabilised, the test looks at the question of whether “significant functional improvement” can be expected.[47]

   [46] See Social Security (Tables for the Assessment ofWork-related Impairment for Disability Support Pension) Determination 2011 (Cth), s 6(7)(c).

   [47] Ibid, s 6(6).

4. Nor do I think that Dr Sadique’s letter of 27 June 2016 advances the matter. Apart from some vague and generalised reference, the letter is short on explanation as to why Mr Curtis would not benefit from further treatment or from surgery. In particular, it does not address the comments of the three doctors almost two decades earlier, they being the last available specialist assessments of Mr Curtis’ condition (apart from reports from radiologists). Dr Sadique’s comment also appears inconsistent with his own referral to the GCH Neurosurgery Clinic just over 12 months earlier, when he asked for assistance with the “management” of Mr Curtis’ condition. If Dr Sadique thought that Mr Curtis would not benefit from surgery or further treatment, why did he make the referral at all?  It is also significant that the letter pre-dated the scheduled July appointment with the GCH Neurosurgery Clinic, of which there is no report before the Tribunal.

5. It follows from what I have said that I do not think that Mr Curtis’ condition was fully treated and stabilised at the time of the claim or in the 13 weeks that followed.  For the preceding two decades, his degenerative condition continued to worsen, without him availing himself of appropriate specialist advice on its ongoing management and treatment. In those circumstances, no points can be assigned in respect of that condition.

6. In the event that I am wrong and (contrary to my finding) Mr Curtis’ back condition is held to have been fully treated and stabilised, I briefly consider the impairment rating that would otherwise be assigned under the Impairment Tables.

7. The relevant table to consider would be Table 4 (Spinal Function).

8. Unfortunately, there is limited evidence available concerning the functional impact which this condition had on Mr Curtis at the relevant time. The JCA recorded that Mr Curtis had difficulties in the morning with the activities of daily life due to stiffness and pain. He avoids wearing lace up shoes as he is unable to bend down from the waist. He said that he could do light sweeping and that he self-paces due to endurance limitations when mowing his small front lawn area. He is able to drive an automatic motor vehicle and to turn his head to check his rear vision blind spot.[48]

   [48] Exhibit 1, T Documents, T 17, page 105, Job Capacity Assessment Report dated 9 December 2015.

9. In answering the Basic Rights Queensland questionnaire, Dr Sadique expressed the view that Mr Curtis’ condition attracted 20 points under Table 4, explaining that he was not able to stand or sit for long without pain.[49] At the hearing, Mr Curtis told me that his functional capacity was “all about pain management”, balancing the dosage and frequency of his medication with its effect on him. On a good day, he could “dance a jig”. He uses his medication as a “blocker”, to “take the edge off” the pain.

   [49] Exhibit 1, T Documents, T 25, page 125, Basic Rights Queensland questionnaire completed by Dr Mohammad Sadique, dated 5 May 2016.

10. Having considered the descriptors under Table 4 for severe functional impact (20 points), I do not think that there is sufficient evidence to support that rating within the relevant period. There is no evidence before the Tribunal that Mr Curtis was unable to perform any overhead activities (paragraph (1)(a)) or bend forward to pick up a light object from a table or desk (paragraph 1(c)) within the relevant period. Mr Curtis told the JCA that he was able to turn his heading to check the vision blind spot when driving. While Dr Sadique said that he could not sit for a long time, he did not specify the duration for which Mr Curtis could sit. However, I understood from Mr Curtis that, with medication, he could remain seated for a period in excess of 10 minutes. This is also supported by the observation of the JCA observed that Mr Curtis was able to drive.

11. To summarise, I do not consider that Mr Curtis’ back condition was fully treated and stabilised at the time of claim or in the 13 weeks that followed.  Therefore, no impairment rating could be assigned in respect of it. Even if I am wrong in that conclusion, I do not consider there is sufficient evidence to warrant an assignment of 20 points under Table 4. 

    Depression condition 

12. There is no doubt that the depression condition has been fully diagnosed by Dr Mufti, a psychiatrist.

13. However, what is in contention is whether, within the relevant period, Mr Curtis’ depression condition was fully treated and stabilised.

14. Dr Mufti first saw Mr Curtis on 7 October 2015, just under a month before the claim was lodged. He noted that Mr Curtis had been treated for depression in the past with Sertraline for two months, but that had stopped due to side effects.[50] However, there appears to be some confusion as to what Mr Curtis was taking at the time of the claim. Dr Mufti noted in his report of 5 November 2015 that Mr Curtis was then taking Lovan 20 mg,[51] whereas his medical certificate of a few days earlier recorded that Mr Curtis was being treated with Efexor.[52] To add to the confusion, Dr Sadique recorded in his supporting report that Mr Curtis was taking one 50 mg tablet of Zoloft daily.[53]

    [50] Exhibit 1, T Documents, T 16, page 102, medical report of Dr Fawaz Mufti dated 5 November 2015.

    [51] Ibid.

    [52] Exhibit 1, T Documents, T 15, page 99, medical certificate of Dr Fawaz Mufti, undated.

    [53] Exhibit 1, T Documents, T 13, page 66, medical report of Dr Mohammad Sadique dated 28 October 2015.

15. Although not mentioned by Dr Mufti in his report, Mr Curtis told the JCA that he attended the psychiatrist every four to six weeks. At that time, his next scheduled review was late January 2016, “to review medication and to arrange for psychological counselling referral”.[54]

    [54] Exhibit 1, T Documents, T 17, page 104, Job Capacity Assessment report dated 9 December 2015.

16. A further report was produced by Dr Mufti in February 2016, in which he expressed the opinion that Mr Curtis’ depression condition had “stabilised despite ongoing symptoms which affect his ability to sustain any meaningful employment”.[55]

    [55] Exhibit 1, T Documents, T 21, page 117, medical report of Dr Fawaz Mufti dated (incorrectly) 25 February 2015.

17. Dr Mufti was also asked to complete a Basic Rights Queensland questionnaire. He signed that questionnaire on 12 May 2016[56] and provided an amended version (which corrected a date) dated 2 July 2016,[57] together with a re-dated version of his February 2016 letter.[58]

    [56] Exhibit 1, T Documents, T 26, pages 127-135, Basic Rights Queensland questionnaire by Dr Fawaz Mufti, dated 12 May 2016.

    [57] Exhibit 2(c), Basic Rights Queensland questionnaire by Dr Fawaz Mufti, dated 2 July 2016.

    [58] Exhibit 2(c), medical report of Dr Fawaz Mufti dated 2 July 2016.

18. Although the questionnaire of July 2016 corrected some dates, not all the dates were corrected. In particular, Dr Mufti retained the reference to all reasonable treatment having been undertaken by January 2015. As he only commenced seeing Mr Curtis on 7 October 2015, it is apparent that this reference is incorrect. I assume that he meant to say that all reasonable treatment was completed by January 2016.

19. No mention was made by Dr Mufti of referring Mr Curtis for psychological counselling, which Mr Curtis understood was to occur. However, Mr Curtis told me during the hearing that from about the middle of 2016, he started seeing a psychologist, Ms Erica Begelhole, who was working in the same clinic as his psychiatrist. He estimated he had seen her about 10 to 12 times since the middle of the year (that is, the latter part of 2016).

20. It also appears that since about the middle of 2016, Mr Curtis began seeing a new psychiatrist, Dr Samit Roy, following Dr Mufti’s departure from the clinic. Dr Roy’s report revealed that he advised Mr Curtis to see a psychologist as part of his treatment plan. He thought that Mr Curtis was getting better as far as his depressive disorder was concerned but that his chronic pain was still proving to be a substantial issue for him. He felt that Mr Curtis “would require significant input from a Psychologist and even a Pain Clinic to address that”.[59]

    [59] Exhibit 4(a), medical report of Dr Samit Roy dated 30 October 2016.

21. Having regard to the history I have outlined, I am not convinced that Mr Curtis’ depression condition was fully treated at the time of the claim or during the relevant period following its lodgement. Mr Curtis first saw Dr Mufti a little under a month before the claim was made. Assuming that the doctor saw Mr Curtis every four to six weeks, that means that he would have had only one consultation before the claim, and a further three in the relevant period following. During that time, Mr Curtis was placed on new medication (although there appears to have been some initial confusion, as I have alluded to). As Mr Curtis had previously suffered side effects from other medication, it seems natural that a period of time would have been needed to allow the new treatment regime to be trialled and assessed before it could be settled. Nor did Dr Mufti mention in his reports the psychological review that was to have been commenced. According to Mr Curtis, that commenced in the middle of 2016, some months after the claim and the relevant period. By September 2016, some 10 months after the date of claim, Dr Roy observed that Mr Curtis was getting better, as far as his depressive disorder was concerned. It is apparent from what I have outlined that significant treatment was undertaken for the depression, with a degree of success, after the relevant period. I therefore do not believe that the condition could be said to have been fully treated and fully stabilised within the relevant period. Therefore, no impairment points can be assigned in respect of this condition.

22. In the event that I am wrong, and (contrary to my finding) the depression condition was considered to be fully treated and stabilised, I briefly consider what impairment points would be assigned in this instance.

23. There is limited evidence available of the functional impairment caused by the depression condition. The JCA recorded Mr Curtis as saying that he was on edge at times, worrying about things, and had anxious ruminations. He fatigued easily, which impacted on his concentration, attention and decision making capacity. He complained of a poor sleeping routine due to excessive worrying, resulting in loss of energy and concentration for simple daily tasks.[60]

    [60] Exhibit 1, T 17, page 104, Job Capacity Assessment Report dated 9 December 2015.

24. Dr Mufti assessed Mr Curtis by reference to the six domains of mental health used under Table 5 (Mental Health Function), saying that he suffered moderate functional impact in respect of four of the domains and severe functional impact in respect of the remaining two.[61] As most of the domains were assessed as moderate, it follows that Dr Mufti’s assessment would support an overall moderate functional impact rating under Table 5, resulting in an allocation of 10 impairment points.[62]

    [61] Exhibit 2(c), Basic Rights Queensland questionnaire by Dr Fawaz Mufti, dated 2 July 2016.

    [62] See Guide to Social Security Law, 3.6.3.50.

25. To summarise, I do not consider that Mr Curtis’ depression condition was fully treated and stabilised at the relevant time. As a result, no impairment points can be assigned in respect of it. If I am wrong in that conclusion, I believe, based on Dr Mufti’s assessment, that this impairment would attract no more than 10 impairment points under Table 5.

    Other conditions

26. As mentioned earlier, Mr Curtis noted in his claim form that he also suffered knee problems. The supporting report of Dr Sadique also recorded that Mr Curtis suffered from Gastro-oesophageal Reflux Disease (“GORD”) and was on medication for it. A further report by Dr Sadique in April 2016 stated that Mr Curtis was also suffering from chronic vertigo, for which he had been prescribed Stemetil.[63] I deal with each of those conditions below.

    [63] Exhibit 1, T Documents, T 24, page 123, medical report of Dr Mohammad Sadique dated 14 April 2016.

27. With respect to the condition affecting his knees, Mr Curtis produced a radiology report completed by Dr Shane Thompson in June 2014, in which degenerative cartilage thinning and meniscal damage were observed.[64] A further report completed by Dr Thompson in September 2016 noted that osteoarthrosis was present.[65] Apart from those reports, there was little medical evidence relating to this condition. Consistent with that lack of evidence, Mr Curtis confirmed to the JCA that he had obtained no specific treatment for his knee condition despite suffering from it for a period in excess of 10 years. No future treatment was detailed.[66]

    [64] Exhibit 1, T Documents, T 11, page 62, medical report of Dr Shane Thompson dated 11 June 2014.

    [65] Exhibit 4(d), medical report of Dr Shane Thompson dated 30 September 2016.

    [66] Exhibit 1, T Documents, T 17, page 105, Job Capacity Assessment Report dated 9 December 2015.

28. At the hearing, Mr Curtis told me that the knee condition placed restrictions on his movement, but it was manageable with medication. Significantly, Dr Sadique’s report of October 2015 which accompanied the claim form made no mention at all of the knee condition. Given the lack of treatment over such a long period, I do not consider that this condition could be considered fully treated and stabilised. As such, no impairment rating can be assigned in respect of it. Even if points could be assigned, there is no corroborating medical evidence of the condition’s functional impact. In light of that, Mr Curtis’ concession that the condition was “manageable”, and Dr Sadique’s silence on the matter, I would assign zero points under the appropriate table, Table 3 (Lower Limb Function).

29. Although Mr Curtis did not mention his GORD condition, Dr Sadique recorded it in his accompanying report, noting that Mr Curtis takes Pariet tablets 20 mg daily.[67] Mr Curtis told the JCA that the condition was generally well managed, with minimal impact on functioning.[68] At the hearing before me, Mr Curtis confirmed that the condition could be controlled and that he took his tablet “for insurance”. On that basis, I would assign zero impairment points in respect of that condition under the relevant table, Table 10 (Digestive and Reproductive Function).

    [67] Exhibit 1, T Documents, T 13, page 65, medical report of Dr Mohammad Sadique dated 28 October 2015.

    [68] Exhibit 1, T Documents, T 17, page 104, Job Capacity Assessment Report dated 9 December 2015.

30. The chronic vertigo condition diagnosed by Dr Sadique does not appear to have been confirmed by an ear, nose and throat specialist, as required by the Introduction to the relevant table, Table 11 (Hearing and Other Functions of the Ear). Accordingly, there is insufficient basis to assign any impairment rating under that table.

    Impairment points – summary

31. To summarise, I do not consider that any impairment points can be assigned in respect of the back and knee conditions and the depressive disorder, as those conditions were not fully treated and stabilised within the relevant period. Nor could any points be allocated in respect of the chronic vertigo condition in the absence of supporting evidence of the diagnosis by an ear, nose and throat specialist. The GORD condition was well controlled at the relevant time and had minimal impact on Mr Curtis’ functional capacity; as such, I consider that it attracted a zero impairment rating under the relevant table.

32. It follows from what I have said that, at the relevant time, Mr Curtis had no points under the Impairment Tables and therefore did not satisfy the requirement in s 94(1)(b) of the Act. Accordingly, he did not qualify for DSP.

    Did Mr Curtis have a continuing inability to work?

33. It is unnecessary for me to consider this question in light of my finding that Mr Curtis did not have the requisite number of impairment points. However, I make the following comments for completeness and future guidance for Mr Curtis.

34. As I mentioned earlier, even if I were wrong that Mr Curtis’ back and knee conditions and his depressive disorder were not fully treated and stabilised at the relevant time and that (contrary to my finding) they could attract impairment points, I do not believe that any of them would be considered to have resulted in “severe impairment”, as that term is understood under s 94(3B) of the Act. In other words, none of the impairments would attract 20 points or more under a single table.

35. In those circumstances, Mr Curtis would be required to meet the requirement in s 94(2)(aa) of the Act, that he actively participated in a program of support (“POS”), in order to be regarded as having a continuing inability to work. Generally, that requires a person to participate in a POS for at least 18 months of the 36 months ending immediately before the day on which the claim for DSP is made.[69]

    [69] See Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth), subs 7(1) and (2).

36. According to Mr Curtis’ Employment Services System referral summary, he had not engaged with a designated provider or commenced a POS in the 36 months immediately preceding his claim.[70] He therefore could not satisfy s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (“POS Determination”). Nor is there any suggestion that he could satisfy the other requirements for active participation in s 7 of the POS Determination.

    [70] Exhibit 1, T Documents, T 28, page 145, Program of Support referrals printout.

1. Mr Curtis cannot be found to have a continuing inability to work because he did not actively participate in a POS. Consequently, I do not consider that he could satisfy the requirement in s 94(1)(c) of the Act. He therefore did not qualify for DSP on that basis.

   CONCLUSION

2. To summarise, I do not consider that Mr Curtis qualified for DSP, both because he did not have a total of 20 points or more under the Impairment Tables and because he did not have a continuing inability to work (as he had not relevantly actively participated in a POS). I therefore consider that the decision of the SSCSD was correct.

3. Accordingly, the decision under review is affirmed.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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

Associate

Dated: 12 January 2017

Date(s) of hearing:	8 December 2016
Applicant:	By telephone
Solicitors for the Respondent:	Department of Human Services