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

[2022] AATA 4659

Cutugno and Secretary, Department of Social Services (Social services second review) [2022] AATA 4659 (23 December 2022)

Division:GENERAL DIVISION

File Number(s):2021/7281      

Re:Michael Cutugno  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Senior Member B Cullen

Date:23 December 2022

Place:Brisbane

The decision under review is affirmed.

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

Senior Member B Cullen

Catchwords

SOCIAL SECURITY — Disability Support Pension — where Applicant does not meet the 20-point impairment rating — decision under review affirmed.

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Cases

De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1; [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris (2007) 97 ALD 534; [2007] FCAFC 130

Secondary Materials

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION

Senior Member B Cullen

23 DECEMBER 2022

Consideration

BACKGROUND

1. On 11 May 2021, Mr Cutugno (‘the Applicant’), lodged a claim for disability support pension (‘DSP’) with the Respondent in respect of “bilateral shoulder pain and recurrent dislocation in both shoulders”.[1]

   [1]   Exhibit 1, T Documents, T5, Claim for Disability Support Pension, pages 41-44.

2. On 17 May 2021, a Medical Eligibility Assessment Recommendation concluded that there was insufficient medical evidence to determine that the Applicant’s condition was fully diagnosed, treated and stabilised.[2]

   [2]  Exhibit 1, T Documents, T6, Disability Support Pension Medical Eligibility Assessment Recommendation, pages 45-46.

3. Following provision of further medical evidence, a further Medical Eligibility Assessment Recommendation took place, which included an injury to the Applicant’s left knee as a medical condition.[3] This assessment concluded that that the applicant was “manifestly medically ineligible” as both medical conditions were not fully diagnosed, treated and stabilised.[4]

   [3]  Exhibit 1, T Documents, T8, Disability Support Pension Medical Eligibility Assessment Recommendation, pages 53-54.

   [4]   Ibid.

4. The Applicant’s claim for DSP was rejected by Services Australia on 8 June 2021, on the basis that the Applicant did not have an impairment rating of at least 20 points.[5]

   [5]   Exhibit 1, T Documents, T11, Letter from the Agency to the Applicant – ‘Rejection of your claim for Disability Support Pension’, page 94.

5. On 9 June 2021, the Applicant’s DSP claim and file was reassessed by a rehabilitation counsellor and registered psychologist for the purposes of a Job Capacity Assessment Report (‘JCA’). The JCA found that the Applicant’s bilateral shoulder condition was fully diagnosed, but not fully treated and stabilised. The JCA did not consider the left knee injury.[6]

   [6]   Exhibit 2, Supplementary T Documents, ST4, Job Capacity Assessment Report, pages 21-27.  

6. On 13 July 2021, the decision to reject the Applicant’s claim for DSP dated 11 May 2021 was affirmed by an Authorised Review Officer (‘ARO’).[7] The ARO determined that the Applicant’s bilateral shoulder condition and left knee injury were fully diagnosed, but not fully treated and stabilised. Further, the ARO considered depression as a third medical condition, but determined that it was not fully diagnosed, treated and stabilised.[8]

   [7]   Exhibit 1, T Documents, T12, Decision and Notes of the Authorised Review Officer, pages 95-99.

   [8]   Ibid, page 96.

7. The Applicant sought review of the decision by the AAT1, which affirmed the decision under review on 23 July 2021.[9]

   [9]   Exhibit 1, T Documents, T13, Request for Statement from the Administrative Appeals Tribunal, pages 100–101.

8. The AAT1 found that the Applicant’s bilateral shoulder condition was diagnosed, but not fully treated and stabilised; the left knee condition was not fully treated, diagnosed and stabilised, and did not consider the depressive condition.[10]

   [10]  Exhibit 1, T Documents, T2, Decision of the Social Services & Child Support Division, pages 6-7.

   Decision under review

9. On 30 June 2021, the Applicant applied to the Tribunal for review of the AAT1 decision.[11]

   [11]  Exhibit 1, T Documents, T1, Application for Review, page 1.

10. The decision now under review is a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (‘AAT1’) dated 23 July 2021, which affirmed a decision of Services Australia (the Agency) to reject the Applicant claim for the Disability Support Pension (‘DSP’) lodged on 11 May 2021.[12]

    [12]  Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions (’SFIC’), pages 6–16.

11. The Tribunal held a hearing on 23 May 2022, where the Applicant appeared by telephone. The Applicant wanted to ensure that the Tribunal understood that his shoulder condition was bilateral, meaning that both shoulders were impacted.[13] The Applicant also wanted to ensure that the Tribunal had a copy of a report from Dr Philip Nyst, Consultant Psychiatrist, dated 13 February 2022.[14] As it appeared that the Applicant may have inadvertently provided Dr Nyst’s report to the Respondent only, the Tribunal briefly adjourned the matter to enable Dr Nyst’s report to be filed with the assistance of the Respondent, The Tribunal has considered Dr Nyst’s 13 February 2022 Report in making a decision about the Applicant’s claim for DSP.

    [13]  Transcript P3 at [4] – [18].

    [14]   Exhibit 5, Report of Dr Philip Nyst, dated 13 February 2021.

    Issues

12. Whether, at the date of claim of 11 May 2021, or within thirteen (13) weeks thereafter:

    (a)the Applicant had a physical, intellectual or psychiatrist impairment(s) for the purpose of section 94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’); and

    (b)If so, whether the Applicant's condition(s) were fully diagnosed, fully treated, and fully stabilised (‘FDTS’) and caused impairment(s) which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) for the purpose of section 94(1)(b) of the Act; and

    (c)If so, whether the Applicant had a 'continuing inability to work' as defined in section 94(2) of the Act for the purpose of 94(1)(c) of the Act.[15]

    Relevant Legislation[16]:

    ·Social Security Act 1991 (Cth).[17]

    ·Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011.[18]

    ·Social Security (Administration) Act 1999 (Cth).[19]

    ·Social Security (Active Participation for Disability Support Pension) Determination 2014.[20]

    ·Guide to Social Security Law (‘Guide’).[21]

    [15]    Exhibit 4, Respondent’s SFIC, page 1, [2].

    [16]    Ibid, page 3, [15].

    [17]    Act No. 46 of 1991, C2022C00165, registered 11 May 2022.

    [18]    F2011L02716, registered 16 December 2011.

    [19]    Act No. 191 of 1999, C2022C00161, registered 2 May 2022.

    [20]    F2015L00001, registered 2 January 2015.

    [21]    Refer to Exhibit 4, Respondent’s SFIC, page 3, [16].

13. The date for determining whether the Applicant meets the Section 94 Requirements is the date of his claim (11 May 2021), unless the Applicant becomes qualified within thirteen (13) weeks of lodging the claim, in which case, his start date is the day he becomes qualified.[22] Therefore, in-order-to qualify for DSP, the Applicant must have met the Section 94 Requirements between 11 May 2021 and 10 August 2021 (‘the Qualification Period’).

    [22]   See ss 41 and 42, and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

14. When making a decision about whether the Applicant meets the Section 94 Requirements, the Tribunal can only consider medical evidence that relates to the functional impact of the Applicant’s impairments after the Qualification Period to the extent that it “may cast light on” the functional impact of the impairments within the Qualification Period.[23]

    DID THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?

    [23]   See Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404, [1], and on appeal, Secretary, Department of Employment and Workplace Relations v Harris (2007) 97 ALD 534; [2007] FCAFC 130; Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1; [2015] FCA 1123.

    What is an Impairment?

15. The Determination contains the rules for applying the Impairment Tables and defines “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” to mean “a medical condition”.[24]

    [24] Determination, s 3.

    Consideration of Impairment

16. At the hearing, and in its Statement of Facts and Contentions, the Respondent accepted that the Applicant had impairments consisting of fibromyalgia and psychiatric conditions, which satisfied section 94(1)(a) of the Act during the Qualification Period.[25]

    [25]   Exhibit 4, Respondent’s SFIC, page 6.

17. Considering the above evidence, the Tribunal finds that during the Qualification Period, the Applicant had a bilateral shoulder condition, left knee pain and depression, which are impairments for the purposes of the Act. Therefore, the requirements in section 94(1)(a) of the Act have been met.

    DO THE APPLICANT’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?

    How are Impairment Ratings Assessed?

18. The Impairment Tables are used to assess whether a person satisfies the qualification requirement in section 94(1)(b) of the Act.[26] They are function-based,[27] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[28]

    [26] Determination, ss 4(2) and 5(2)(a).

    [27] Determination, s 5(2)(b) and (c).

    [28] Determination, s 5(2)(d).

19. An Impairment Rating can only be assigned to an impairment if:[29]

    ·the condition causing that 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 (2) years.

    [29] Determination, s 6(3).

20. The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[30]

    [30]   De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368, [12].

21. The Applicant’s conditions can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[31]

    ·The condition has been “fully diagnosed” by an appropriately qualified medical practitioner;

    ·The condition has been "fully treated”;

    ·The condition has been “fully stabilised”; and

    ·The condition is more likely than not, in light of the available evidence, to persist for more than two (2) years.

    [31] Determination, s 6(4).

22. In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”,[32] the following is to be considered:[33]

    ·Whether there is corroborating evidence for 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 (2) years.

    [32] For the purposes of ss 6(4)(a) and (b) of the Determination.

    [33] Determination, s 6(5).

23. A condition is fully stabilised[34] if:[35]

    (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 (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 two (2) years is not expected to result, even if the person undertakes reasonable treatment;[36] or
    

    [34] For the purposes of ss 6(4)(c) and 11(4) of the Determination.

    [35] Determination, s 6(6).

    [36]   For “reasonable treatment”, see s 6(7) of the Determination.

    (ii) There is a medical or other compelling reason for the person not to undertake reasonable treatment.

24. In relation to the Applicant’s impairments, the Respondent’s position at hearing was that:

    ·The Applicant’s bilateral shoulder pain and recurrent shoulder dislocation was fully diagnosed, but was not fully treated and stabilised in the qualification period, and therefore did not satisfy s.94(1)(b) of the Act;

    ·The Applicant’s left knee pain was fully diagnosed, but was not fully treated and stabilised in the qualification period, and therefore did not satisfy s.94(1)(b) of the Act; and

    ·The Applicant’s depression could not be regarded as fully diagnosed, treated and stabilised during the Qualification Period; and

    ·As none of the Applicant’s conditions were fully treated and fully stabilised during the Qualification Period, they cannot be assigned a rating under the Impairment Tables.

    The Applicant’s Medical Conditions

    Bilateral shoulder pain and recurrent shoulder dislocation

25. The key medical evidence before the Tribunal in relation to the Applicant’s Bilateral Shoulder Condition is summarised in the table following:

Date	Doctor/Reference	Substance of Report
6 July 2017 and 6 December 2017	CT Scans (T10 at 82-83)	Scans reveal small defects within the right and left posterolateral humeral heads suggestive of Hill-Sach lesions and healed old Bankart lesions of the glenoid and os acromiale in the right shoulder.
17 November 2017 and 24 November 2017	Progress Notes (T10 at 57-58) and Report by Dr Mark Robinson, Orthopaedic Surgeon (T10 at 76-77).	Confirm diagnosis of bilateral anterior shoulder dislocations. Reports that when Applicant dislocates shoulder, he has occasional symptoms of paraesthesia in fingers. Applicant referred to physiotherapy for improvement of shoulder function, and also referred for MR arthrogram of both shoulders and CT scan.
15 December 2017	Total and Permanent Incapacity Report by Dr Mark Robinson (T7 at 48-49)	Notes Applicant’s treatment consists of physiotherapy. States that further investigation was being undertaken to determine whether surgery would be of any benefit.
1 February 2018	Report Dr Andrew Pluta (T7 at 50-52)	Applicant’s treatment is physiotherapy, medication and further specialist opinion.
8 March 2018	Report Dr Mostyn Yong (T10 at 81)	Comments in report back to Dr Pluta include: “I am pleased to report that he has had no further dislocations following commencement of physiotherapy. To this end, we would like him to continue with the physiotherapy.” “We will see him in 6 months’ time. If the recurrent dislocations occur between now and then, for the right shoulder, we would continue to arthroscopic stabilisation + labral repair and Remplissage and for the left shoulder due to his greater bone loss for bony transfer [sic].”
20 September 2018	Report by Dr Mark Robinson, (T10 at 60-61).	Comments include: “No dislocations since PT over the past year, Pt has also stopped heavy lifting, no shoulder pain today; no ue [upper extremity] numbness/paraesthesia, d/ced from PT 3 month ago; continues PT exercises at home.” As Applicant had no further dislocations, discharged from Orthopaedic Clinic, and to continue home physiotherapy exercises and return to Orthopaedic Clinic if any dislocations occurred.
9 June 2021	Job Capacity Assessment Report (ST4 at 22).	Comments include: “Customer confirms no further contact with the medical profession. This is because he was able to lift his arms above his shoulders and he knows the conservative band stretching treatment and he continues to perform exercises. Customer confirmed there is no recommended pain medication and he prefers no medication. Customer reports he expects surgery in the future: ‘surgeon talks about scrapping [sic] something out but this will not make a lot of difference’. Customer reports no counselling support of his reported pain associated low moods.”
10 June 2021	Medical Certificate, Dr Andrew Pluta (T9 at 55).	Reports that past surgical treatment achieved “poor result” and Applicant is planned for medical review, to be prescribed.
19 August 2021	Medical Certificate, Dr Andrew Pluta (T15 at 103).	Reports that past surgical treatment achieved “poor result” and Applicant is planned for medical review, to be prescribed.
9 November 2021	Medical Certificate, Dr Andrew Pluta (ST5 at 28).	Reports that past surgical treatment achieved “poor result” and Applicant is planned for medical review, to be prescribed.
1 December 2016 – 16 November 2021	Medicare Report (ST6 at 30-37) and (ST7 at 38-43).	Report does not contain evidence of Applicant engaging in any physiotherapy following discharge from Dr Robinson’s Orthopaedic Clinic in September of 2018.
17 November 2021	PBS Claims History for period from 1 December 2016 – 16 November 2021. (ST6 at 30).	Report indicates Nil pharmaceutical claims during period.

1. The Respondent accepts that the Applicant’s bilateral shoulder pain and recurrent shoulder dislocation condition was fully diagnosed the Qualification Period. The Tribunal finds, on the basis of Dr Robinson’s September 2018 diagnosis, that the Applicant’s bilateral shoulder pain and recurrent shoulder dislocation condition was therefore fully diagnosed at the time of his claim for DSP.

   Was the diabetes condition fully treated and stabilised?

2. The Respondent’s position in relation to the Applicant’s bilateral shoulder pain and recurrent shoulder dislocation condition is that there is insufficient evidence relevant to the Qualification Period to determine that it was fully treated and stabilised.

3. In order to afford the Applicant with procedural fairness, the Tribunal explained to the Applicant that it did not have any evidence that he had returned to the Orthopaedic Clinic for any treatment. The following exchange took place in the hearing[37]:

   [37]  Transcript at P-18 – P-19.

   “SENIOR MEMBER:  So at paragraph 43 of the respondent’s statement of facts, issues, and contentions, okay, they say that they agree that you were under the care of Dr Robinson from 24 November 2017 to 20 September 2018, okay.

   MR CUTUGNO:  Yes.

   SENIOR MEMBER:  But they don’t have any ‑ they point out, and this is what I’m asking about, that there is no information after that indicating that you returned after 20 September 2018.

   Is that correct, Mr Harvey?

   MR HARVEY:  That is correct.

   SENIOR MEMBER:  Okay.  So that’s an important issue which is why I’m, sort of, belabouring it.  Because ‑ ‑ ‑

   MR CUTUGNO:  Yes, of course.

   SENIOR MEMBER:  You know, that relates to whether I could find that the condition had been fully treated and stabilised, because I need to base that conclusion on some evidence, okay, and I don’t think I have any evidence that you went back there after that period in September 2018.

   MR CUTUGNO:  No, and it was quite a ‑ yes, it was quite a substantial bit of time, and then I remember I had another appointment with him.  So maybe I just don’t have anything on that, but I did actually see him so as what he was saying is, you know, “No surgery for you, because it’s” ‑ you know.

   SENIOR MEMBER:  Okay, so the difficulty with that ‑ and I don’t have a view yet ‑ but the difficulty with it is that if there is no evidence that you followed that up, and there doesn’t appear to be, okay, that would make it difficult for me to find that in that 13‑week qualification period, which is between 11 May 2021 and August 10, 2021, okay, that the condition had been fully treated and stabilised, okay.  Because there is nothing between that period in 2018 leading up to that qualification period, or during the qualification period, which means that there is a pretty serious gap in the information, or there just is no information.

   MR CUTUGNO:  Yes.

   SENIOR MEMBER:  Do you understand the issue?

   MR CUTUGNO:  Of course, absolutely, yes.

   SENIOR MEMBER:  Yes.  Okay, so that’s the concern, and if you, kind of, don’t get over that hurdle, you know, it would make it difficult for the tribunal to make the finding that you would like me to.

   MR CUTUGNO:  Yes, of course.

   SENIOR MEMBER:  That’s not to say that, you know, you don’t have shoulder difficulties, it’s just that it has to fit within that really narrow window, because there is a time ‑ you know, there is a time for everything.  So I need to tick off all of the boxes on having all of the information in the right period of time.

   MR CUTUGNO:  Yes, of course.  I fully understand.  That ‑ yes, I can only say by word, without documentation, that I went back, which is obviously none of the words here, but yes, I fully understand.”

1. There is no evidence before the Tribunal that the Applicant has engaged in physiotherapy through a practitioner following Dr Robinson’s advice when he was discharged from the Orthopaedic Clinic. Although the Applicant has self-reported that he has engaged in the exercises prescribed in his own environment, this is not corroborated through any medical reports, physiotherapy reports, or in the Applicant’s Medicare and PBS history. When considering self-reports, the Introduction to Table 2 of the Impairment Tables, Rule 6(5)(1) requires that there is corroborating medical evidence.  

2. The Applicant has now been prescribed with a cannabinoid for treatment of his shoulder condition. However, the evidence before the Tribunal is that this was prescribed on
   23 March 2022, which is well outside the Qualification Period that ended on 10 August 2021.

3. The Tribunal considers that adherence to recommended physiotherapy and follow-up following the Applicant’s discharge from the Orthopaedic Clinic could have result in significant functional improvement of the Applicant’s shoulder condition. There is an absence of any evidence supporting adherence to Dr Robinson’s recommendations, besides the Applicant’s self-reports of at-home exercises, which is not adequate for the reasons explained above.

4. On the basis of the evidence available to it, the Tribunal finds that the Applicant’s bilateral shoulder pain and recurrent shoulder dislocation condition was not fully treated and stabilised in the Qualification Period. Given this finding, the Tribunal cannot assign an impairment rating to the IDDM condition under the Impairment Tables.

   Left knee pain

5. The medical evidence before the Tribunal in relation to the Applicant’s left knee pain is summarised in the table following.

Date	Doctor/Reference	Substance of Report
13 September 2017	MRI Examination by Radiologist Dr Carl Cua (T4 at 40)	Reports horizontal oblique tear of the posterior horn of the meniscus extending to the body segment with a tiny, microscopic parameniscal cyst and mild prepatellar bursitis.

1. The Respondent accepts that the Applicant’s Mental Health condition was fully diagnosed during the Qualification Period, in view of Dr Cua’s Radiologic Report.

2. Therefore, the Tribunal finds that the Applicant’s left knee condition was fully diagnosed at the time of his claim for DSP.

   Was the left knee pain condition fully treated and stabilised?

3. The Respondent’s position in relation to the Applicant’s left knee pain condition is that it was not fully treated and stabilised during the Qualification Period.

4. The Applicant’s Medicare and PBS Records reveal no engagement with any physiotherapists or specialists, or efforts to seek treatment in the relevant period. There is no evidence of the Applicant having sought treatment for the condition. The 19 May 2021 DSP Medical Eligibility Assessment Recommendation indicated that the Applicant’s knee condition was likely to result in functional improvement within 24 months.[38]  

   [38]  Exhibit 1, T Documents, T8 Disability Support Pension Medical Eligibility Assessment Recommendation, pages 53-54.

5. The Guide[39], states that when determining whether a condition is fully treated:

   “A condition is considered fully treated if, based on the above considerations, it is determined that the person has received all reasonable treatment or rehabilitation for the condition. Treatment includes medical treatment and other appropriate therapy (eg. Physiotherapy) involving rehabilitation aimed at restoring mental or physical function, but usually does not extend to rehabilitation involving specific vocational programmes. It should also be considered whether treatment is still continuing or is planned in the next 2 years. This is because the stability of a condition may depend on whether reasonable treatment has been undertaken, is being undertaken, or is planned to be undertaken.”

   [39] Guide at 3.6.3.05 - Guidelines to the Rules for Applying the Impairment Tables. (>

   The Applicant has worked as a carpet layer, which required him to use his knee to operate equipment. On a practical level, the Tribunal can understand how this could be difficult over a longer term given the physicality involved in the carpet laying trade. However, in the absence of medical evidence indicating that the Applicant sought treatment for his left knee condition following diagnosis, the Tribunal is unable to make a finding that the condition was fully treated and stabilised.

6. On the basis of the evidence available to it, the Tribunal finds that the Applicant’s left knee pain condition was not fully treated and stabilised in the Qualification Period. Given this finding, the Tribunal cannot assign an impairment rating to the left knee condition under the Impairment Tables.

   Depression

7. The medical evidence before the Tribunal in relation to the Applicant’s depression is summarised in the table following:

Date	Doctor/Reference	Substance of Report
10 June 2021	Medical Certificate, Dr Andrew Pluta (T9 at 55).	Applicant has depression with “poor motivation, poor energy”. Current and planned treatment “for review and plan medical Rx, to be decided”.
12 August 2021	Medical Certificate, Dr Andrew Pluta (T14 at 102).	States that Applicant is “Clinically and psych Stable”.
19 August 2021	Medical Certificate, Dr Andrew Pluta (T15 at 103).	Applicant has depression with “poor motivation, poor energy”. Current and planned treatment “under assessment”.
9 November 2021	Medical Certificate, Dr Andrew Pluta (ST5 at 28).	Applicant has depression with “poor motivation, poor energy”. Current and planned treatment “for review and plan medical Rx, to be decided”.
13 February 2022	Dr Phillip Nyst, Consultant Psychiatrist (Exhibit 5)	Comments include: “Situational crisis as a result of recent losses” “He has a good relationship with his GP and should continue to see his GP or at least a fortnightly basis. He should also have a Mental Health Care Plan completed and be referred to a psychologist with skills in adjustment disorder and with skills in the management of substance abuse.”
23 March 2022	Dr David de Bhal (ST9 at 46).	Report ‘exacerbation of existing, under assessment, will last 3-12 months’ with current treatment and medication to be decided.

Was the Applicant’s depression fully treated and stabilised?

1. The Respondent’s position in relation to the Applicant’s depression is that there is insufficient medical evidence to enable the Tribunal to find that the condition was fully diagnosed, treated and stabilised during the Qualification Period.

2. The AAT1 did not make a decision in relation to the Applicant’s depression.[40] It is important to bear in mind the significance that attaches to the Qualification Period in this area of law. The evidence from both Dr de Bhal and Dr Nyst falls well outside the Qualification Period. The medical certificates from Dr Pluta indicate that a diagnosis was still forthcoming.

   [40]  Exhibit 1, T2 Decision of the Social Services & Child Support Division, pages 3-7.

3. The Introduction to Table 5 - Mental Health Function requires that a diagnosis of a mental health condition must be made by either a psychiatrist or another medical practitioner with evidence from a clinical psychologist. As Dr Pluta is neither a registered psychiatrist or clinical psychologist, the Tribunal cannot accept the medical certificates as supporting that a definitive diagnosis of depression had been made during the Qualification Period.

4. For these reason, the Tribunal finds that the Applicant’s depression was not fully diagnosed, treated and stabilised in the Qualification Period. Given this finding, the Tribunal cannot assign an impairment rating to the depressive condition under the Impairment Tables.

   CONCLUSION

5. Having made the decision that none of the conditions were fully treated and stabilised in the Qualification Period, the Tribunal is unable to assign any of the conditions an Impairment Rating.

   DECISION

6. The Applicant’s claim fails because his impairments did not attract 20 or more points under the Impairment Tables, therefore, he did not qualify for DSP during the Qualification Period under section 94(1)(b) of the Act.

7. The decision under review is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Cullen

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

Associate

Dated: 23 December 2022

Date of hearing:	23 May 2022
Date final submissions received:	23 May 2022
Applicant:	In-person via Telephone
Respondent’s Representative:	Samuel Harvey & Alicia Henderson (Services Australia)