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

Delalic and Secretary, Department of Social Services (Social services second review) [2020] AATA 938 (23 April 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0082
Re:Lebib Delalic
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:23 April 2020
Place:Adelaide

The decision under review is affirmed.
.....................[Sgnd].............................
Senior Member B J Illingworth
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member B J Illingworth
23 April 2020
INTRODUCTION

This is an application for a review of the decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 7 December 2018, affirming the decision of an Authorised Review Officer (“ARO”) dated 27 August 2018, namely that the Applicant was not entitled to receive the Disability Support Pension (“DSP”).
BACKGROUND
On 28 September 2017, the Applicant lodged a claim for DSP. That claim was rejected by an employee of the Department of Human Services (“Centrelink”) on 30 November 2017.
The Applicant applied for internal review of that decision. On 27 August 2018, an ARO affirmed the decision to reject the claim.
On 5 September 2018, the Applicant applied to the AAT1 for a review of the ARO’s decision.
On 7 December 2017, the AAT1 affirmed the decision under review that the Applicant was not entitled to receive DSP.
On 7 January 2019, the Applicant applied to the General Division of the Administrative Appeals Tribunal for a review of the AAT1’s decision.
At the hearing before the Tribunal, the Applicant appeared unrepresented. The Respondent was represented by Ms Lee-Anne Odgers from the Department of Human Services.
The Applicant had no witnesses, including medical practitioners, arranged to give evidence. The Applicant had not participated in a program of support prior to lodging his application for DSP. The Tribunal explained to the Applicant the operation of the legislative framework as it related to his claim for DSP. He was asked if he would like the opportunity of an adjournment to arrange for witnesses to give evidence, including whether he satisfied the exemption not to engage in a program of support. He declined and said that he wished for the hearing proceed.
It was explained to the Applicant that to succeed in the application before the Tribunal, he would need to satisfy the Tribunal that he suffered from a severe impairment within the meaning of s 94 (3B) of the Social Security Act (“the Act”), namely that he suffered an impairment that attracted 20 points or more under a single Impairment Table. Further, that such condition was fully diagnosed, treated and stabilised within the qualification period of 28 September 2017 to 28 December 2017. The Applicant said, and I accept, that he understood his legal obligation. He indicated that in respect of his mental health condition he believed he satisfied the criteria of severe impairment and attracted an assessment of 20 points or more for that single impairment under Impairment Table 5 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).
The Tribunal heard evidence from the Applicant. The Tribunal arranged for Ms Goodwin, the Applicant’s clinical psychologist, to give evidence by telephone. The Respondent called Dr Sandra Armstrong who also gave evidence by telephone.
LEGISLATIVE FRAMEWORK
The legislation relating to qualification for DSP, and the reference to the Impairment Tables, is set out in the provisions of s 94(1) of the Act, which relevantly reads:
94 Qualification for Disability Support Pension
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system.
Section 94(2) of the Act, refers to a person’s continuing inability to work, and reads:
Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases–the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases–either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)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 program of support within the next 2 years.
Further, s 94(3B) of the Act, defines the meaning of a “severe impairment” as follows:
Severe impairment
(iii)A person’s impairment is 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.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points          under one Impairment Table and 10 points under another Impairment Table. The person     has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points          under one Impairment Table and 20 points under another Impairment Table. The person     has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points          each under 2 separate Impairment Tables. The person does not have a severe          impairment.
It follows that if the Applicant has a “severe impairment” within the meaning of s 94(3B) of the Act, namely, an impairment which attracts 20 points or more under a single Impairment Table, then he does not need to have participated in a program of support.
If the Applicant is assigned 20 points under the Determination, but does not have a severe impairment as defined by s 94(3B) of the Act, then the Tribunal must be satisfied that the Applicant has met the requirements of the program of support as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.
Section 94(1)(b) of the Act specifically refers to the Impairment Tables. The Impairment Tables themselves are contained in the Determination.
Pursuant to s 3 of the Determination, “impairment” is defined as ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition’ and “condition” is defined as ‘a medical condition’.
The Determination requires that for an assessment to be made and an impairment rating assigned, a person’s condition must be “permanent”. A condition can be classified as “permanent” if the person satisfies the provisions of ss 6(4), (5) and (6) of the Determination:
6       Applying the Tables
…
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note:      For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:      For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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 there is a medical or other compelling reason for the person not to undertake reasonable treatment
Note:    For reasonable treatment see subsection 6(7).
Subsection 6(7) of the Determination states:
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)Is available at a location reasonably accessible to the person;
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
The information to be taken into account in applying the Impairment Tables are provided pursuant to s 7 of the Determination:
7 Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
Information that must not be taken into account is referred to in s 8 of the Determination:
8Information that must not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note:Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
It is important to note that in assessing any medical evidence concerning the functional impact of the Applicant’s impairments provided after the qualification period, the reports can only be considered if they “cast light on” the functional impact of the impairments as at the qualification period.[1]
[1] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
With respect to functional impact, one must appreciate the purpose of the Determination. In Ulukut and Secretary, Department of Social Services[2] at [5], Senior Member Isenberg helpfully explains the operation of the Impairment Tables in that:
The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination
[2] [2014] AATA 399.
It is also important to only assign a single rating for a common or combined functional impairment as prescribed by subsections 10(5) and (6) of the Determination:
10 Multiple conditions causing a common impairment
…
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
However, per s 10(3) of the Determination, if a single condition causes multiple impairments, each impairment should be assigned a rating and assessed under the relevant Table.
Clause 4 of Schedule 2, of the Social Security (Administration) Act 1999 provides that a person’s qualification for DSP is to be determined during the period commencing from the date of the claim until 13 weeks thereafter. This is known as the “qualification period” during which an Applicant’s entitlement to DSP is to be determined. Hence, for the purposes of this matter, for such condition upon which the Applicant relies as establishing an entitlement to DSP, that condition must be fully diagnosed treated and stabilised within that 13-week period, namely 28 September 2017 to 28 December 2017.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[3], Member Breen said at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks) … If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances. (Emphasis added)
[3] [2012] AATA 922.
Medical reports that come into existence after the qualification period will only be relevant to the extent that such report provide evidence as to the Applicant’s condition during the qualification period.[4]
[4] Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25] – [29].
It should also be noted that the Impairment Tables generally provide that self-reporting of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment and the diagnosis of the condition must be made by an appropriately qualified medical practitioner. Hence, in the case of Mental Health Function under Impairment Table 5, the diagnosis must be made by a psychiatrist or a clinical psychologist.
THE ISSUES BEFORE THE TRIBUNAL
The issues for the Tribunal in this matter are:
(a)Which (if any) of the conditions were fully diagnosed, treated and stabilised within the qualification period;
(b)Which impairment rating should be assigned to the Applicant’s impairments; and
(c)Because the Applicant did not actively participate in a program of support, whether he satisfied the requirement of a severe impairment for a single condition.
THE APPLICANT’S EVIDENCE
The Applicant was born in present day Bosnia in 1968. He married his wife in Bosnia in 1993. The Applicant and his wife subsequently fled from Bosnia to Norway due to the Bosnian war. In Norway, they lived in a refugee camp for approximately two years. In January 1995, the Applicant and his wife arrived in Australia. They have a son who was born in Australia in 1996.
At the time of his arrival in Australia, the Applicant said he ‘was not feeling very good’. He said that he had mental health issues and sought medical help to address these issues. He was prescribed medication which helped him to remain calm and not to anger easily. He was on the DSP for approximately seven years because of his mental health issues, including post-traumatic stress disorder (“PTSD”).
The Applicant felt he was able to work and undertook course in electronic assembly. He was given work experience and then worked in that industry for one year until he was laid off. He then obtained employment for eight years in that field before being made redundant.
The Applicant said he was happy to be made redundant because, at the time, he was feeling insecure and uneasy being around people. He went to his general practitioner and asked to talk to someone. He was referred to a psychologist, but he did not want to tell the psychologist how he was feeling.
In 2013, the Applicant became a franchisee of a cleaning business and commenced working as a cleaner. He said that this job was a good option for him because he did not have to deal with the public much. He started to suffer low back pain, which worsened in late 2013. He came into conflict with the franchisors of his business. He described them as bullies and said that they were dictatorial and controlling. He said that he could not talk back to them and began to lose control. His general practitioner referred him to a clinical psychologist, Ms Sally Goodwin, and she helped the Applicant to deal with his workplace issues. He said they stopped being nasty to him. During this period, he was suffering pain everywhere, including his legs feet and arm.
The Applicant described further problems at work. He began breaking furniture and yelling. He said that it was about this time that he started forgetting things. For example, he explained that he could not remember if he locked the school where he had been cleaning or remember if he had put the cleaning chemicals away. In the early hours of the morning he would become concerned that the children might access the chemicals and he would wake his son to drive him to the school to check that the chemicals were locked away.

His son would do most of the driving as driving more than four or five kilometres caused him discomfort. His son would help him with his cleaning work. The quality of the Applicant’s work dropped off. He received assistance at work from a friend who helped him on the weekends.
The Applicant stopped work in about June 2017. In September 2017, his general practitioner, Dr Tran, referred him to neurologist, Associate Professor Andrew Lee. The Applicant said he decided that he would not stay at work and Associate Professor Lee supported that decision.
Hand and Arm Pain
The Applicant said he suffered from pain in his right hand and right arm as well as paraesthesia in his fingers. He said that using his hand, for example if he was writing or cutting his nails, caused him pain and discomfort. He described stabbing pains in the back of his hand when not using his hand.
In relation to his right hand, the Applicant described it as if he had a wire going through the palm of his hand and striking a nerve. He would suffer pain in the palm of his both hands when driving.
Shoulder and Neck Pain
The Applicant’s shoulder problems began in about 2012 while he was working. He said that he suffered a fibrocystic condition in his right shoulder. The Applicant said that he had an ultrasound and an X-ray on his shoulder.
The Applicant said that when he lifts his arm above his head and brings his arms down, they are heavy. He is still able to hang clothes on his clothesline but after that task is complete, he feels tired. He said he can turn his neck from left to right, but his neck is stiff.
Legs and Feet
The Applicant described experiencing pain in his legs and feet. In particular, he had pain in his right leg which travelled up to his groin. He said the he could not lie down because of the pain he experienced in both of his thighs and would have to stand at night.
The Applicant also described suffering pain in his shins. When the pain was at its worst he felt as if his leg would break when he put weight onto it. He would suffer ‘strong pain’ around his ankle which started in his foot. This pain would last for a few seconds at a time. This was in particular, in relation to his right leg and foot.
Back Conditions
The Applicant gave evidence in relation to his back condition. He said that the condition began in about 2010 and has worsened since then.
Upper Back Pain
The Applicant described experiencing pain in his upper back. He described it as a tearing sensation starting in the area of his shoulder blades which would move to his right breast. He said that Associate Professor Lee sent him to have an MRI. He also had two nerve conduction studies, the first in early 2018; he could not remember the date of the subsequent study. He was not sure of the result of the study, but in any event, it was of no benefit. He said that his conditioned has lessened since he lodged his claim for DSP in September 2017, but it continues.
Lower Back Pain
In respect of his lower back, the Applicant has experienced difficulty when walking, for example if he changes direction he will collapse. He said the pain in his lower back can last up to one month at a time. He has been going to the physiotherapist twice a week, but it has not helped his lower back. It is only been of assistance with respect to his upper body pain which has stopped, namely the pain from a shoulder blade to his right breast.
Pins and Needles
The Applicant described suffering from “pins and needles” (paraesthesia) which would extend all over his body. He said that initially the sensation did not occur often and would only last two or three seconds. As the condition worsened it could last up to half an hour at a time. Generally, the sensation would start in one part of his body and then move to another. At other times, the pins and needles would be all over his body. If this occurred when he was driving, he would have to move his car off the road.
The Applicant thought that the pins and needles may be associated with his pre-existing back conditions. He saw an occupational physician in about 2010.
Migraines
The Applicant said that he suffered from migraines. As a result, he was referred for a CT scan; the doctors could not find a cause for his migraines. He said that this condition was a day-to-day proposition. He still has headaches every day, which makes him angry, but that some days were manageable. In the report of Associate Professor Lee dated 9 August 2017,[5] it is reported that the Applicant’s migraines had stabilised.
[5] Exhibit A: T14, 170-171.
Mental Health Condition
The Applicant described a long history of mental health issues. He first sought help in 1995, following his arrival in Australia. He received help from STTARS [Supporting Survivors of Torture and Trauma] an organisation that assists refugees. He was referred by his general practitioner, Dr Tran, to Dr Michael Lee, who he saw for at least two years and then saw privately on occasions when required. If he stopped taking his medication, it would result in him suffering from diarrhoea, so he would continue to take medication.
The Applicant said he has been seeing a clinical psychologist, Ms Sally Goodwin, about once a month since about 2016. She had been treating him for his symptoms, which included insomnia, nightmares and anger issues.
The Applicant stopped seeing Ms Goodwin but could not remember when that occurred. He said that while she assisted him in his workplace conflict, he felt that he was not getting better. The Applicant was recommended to try hypnotherapy with a new practitioner, which he did in 2018.
The Applicant said that at about this time he was having flashbacks to the Bosnian war. For example, he described being on a tram, and when it stopped and passengers entered, it felt like a group of army members were coming onto the tram. He said his hypnotherapist would hypnotise him but then he could not sleep. He had no memory issues, but he could not sleep. The Applicant saw the hypnotherapist every three weeks and had approximately nine sessions but did not complete the treatment. He could not remember when he was receiving this treatment but thought it might have been after the filing of his application for DSP.
After this, the Applicant returned for psychological treatment with Ms Goodwin. They started talking particularly about his previous problems and he opened up to her more and more. He said previously he would never talk to anybody about issues relating to the Bosnian war, including to his son.
The Applicant said that Ms Goodwin was very positive and gave him tips to assist with his mental health issues. He would engage in walking, meditation, and social activities. It was suggested he undertake work in voluntary services.
The Applicant said that when he first started walking, he could only walk 10 to 50 metres before feeling tired. When he went to the supermarket, he fell because his legs collapsed. He endeavours to exercise every morning and now walks up to 300 metres per day, but this causes him a lot of pain. He said that walking helps with his pain and sleeping. He has increased his intake of medication which has helped him to sleep better but it has not helped with his back pain or his walking or shaking; he is calmer but remains emotional.
In relation to Ms Goodwin, the Applicant said that when he started seeing her, he had been having symptoms such as panic attacks since the Bosnian war; but he did not want to talk to Ms Goodwin about the past.
Functional Impacts
The Applicant sold his car last year; he felt he could no longer drive safely. He said he was falling asleep whilst driving and nearly had an accident. He always felt very tired. The pins and needles he was experiencing were also impacting upon his ability to drive. He had difficulty applying the brake and accelerator and he could not hold them in position.
He said he could not bend down and pick up things from the ground. He had trouble getting in and out of his chair and in the mornings. When going to the toilet, he was unable to clean himself. He explained that he had difficulty washing his hair in the mornings.
STATEMENT OF MR “HD”
Mr HD is the Applicant’s son; he provided a statement dated 27 May 2019[6] which generally corroborated the evidence of the Applicant. He stated that the Applicant started a franchise cleaning business in November 2013. He confirmed that his father’s health began to deteriorate in 2017. He stated that the Applicant was unable to concentrate at work; he became unreliable and began to miss cleaning parts of the facility where he worked.
[6] Exhibit E: Annexure A.
Mr HD described an incident when the Applicant was carrying bucket upstairs and he collapsed. Mr HD began performing his father’s work duties.
Mr HD confirmed that the Applicant had a friend, Ms TG, who would help because his father could not complete a full shift. In 2017 Mr HD described the Applicant as ‘very unstable on a mental level’.[7] He found it hard to get up in the morning. He described unusual behaviour in which the Applicant would be edgy and irritated for no reason and become aggressive. He said the Applicant needed to be reminded to eat and shower and Mr HD had to do the shopping and make sure the bills were paid.
[7] Ibid [13].
STATEMENT OF MS “TG”
Ms TG is a friend of the Applicant. She provided a statement dated 27 May 2019.[8] Ms TG has known the Applicant for five years. She described the Applicant as a good man with a very bad temper and that he angers easily. She described him as having bad dreams about the war and that he gets depressed. He had a bad memory and would forget to eat or forget that he had eaten. She described his difficulties in coping with her children and an inability to handle pressure.
[8] Ibid: Annexure B.
Ms TG said that in about April 2017 the Applicant’s health became worse and he began having difficulties performing his cleaning work. There were contracts that came to an end. Ms TG corroborated that she and the Applicant’s son assisted in performing the cleaning work.
MEDICAL EVIDENCE
In his application for DSP, the Applicant listed his disabilities as follows:
(a)PTSD/Depression and Anxiety;
(b)Chronic rotator cuff strain;
(c)Right median nerve motor neuropathy;
(d)Lumbar spondylosis;
(e)Exercise induced dystonia,
(f)Migraines;
(g)Hernia – inguinal;
(h)Haemorrhoids; and
(i)Left leg shorter.
Regency Medical Clinic History
The Tribunal received a full summary of the Applicant’s medical history from Dr Tran of the Regency Medical Clinic as at 18 September 2017.[9] Dr Tran reported the Applicant’s medical history at that time as migraines, exercise induced dystonia and depression. His past medical history was haemorrhoids, Lichen Planus or itchy reddish-purple skin and PTSD.
[9] Exhibit A: T14, 174.
Medical Reports of Dr Marko Zuvela
The Tribunal received medical reports from Dr Marko Zuvela, the Applicant’s general practitioner.
Report dated 24 October 2018
In a brief report dated 24 October 2018,[10] Dr Zuvela opined that as at September 2017 the Applicant’s conditions were fully treated and stabilised and likely to persist for more than two years. He stated that the Applicant was not fit to undertake employment, education or vocational training since 2017 and all reasonable treatment had been exhausted. He then assigned an impairment rating for the following conditions as follows:
(a)Spinal function: 20 points;
(b)Upper limb function: 10 points;
(c)Mental function: 20 points; and
(d)Lower limb function: 10 points.
[10] Exhibit C: FST32, 252.
In expressing that opinion, Dr Zuvela provided no factual basis to underpin those impairment ratings. He has provided no explanation relative the applicable Tables and the functional impact upon the Applicant’s activity which supports the points he attributed to each condition. His opinion that the Applicant’s medical conditions were fully diagnosed treated and stabilised is contrary to the other evidence before the Tribunal. The report does not assist the Tribunal also gives the Applicant an expectation which, in the circumstances of this matter is unreasonable.
Report dated 9 December 2019
The Tribunal received a report addressed to Centrelink dated 9 December 2019 from Dr Zuvela.[11] He reported the Applicant had been his patient since 1999 and the conditions that had a significant impact on him at the time were:
(a)Major depression, anxiety;
(b)PTSD; and
(c)Chronic discogenic lumbar back pain.
[11] Exhibit A: T14, 177-180.
Further, he reported that the Applicant had the following medical problems which are better managed and impact to a lesser extent on his ability to function:
(a)Tension headaches;
(b)Right rotator cuff injury;
(c)Inguinal hernia;
(d)Haemorrhoids;
(e)Dystonia; and
(f)Carpal tunnel syndrome.
Medical Report of Dr Ivan Siklich
The Tribunal received a report from Dr Ivan Siklich, consultant psychiatrist, dated 24 July 2018.[12] The report was directed to Dr Zuvela at South Road Day Night Surgery.
[12] Exhibit C: FST 29, 245-248.
Dr Siklich reported that the Applicant separated from his wife approximately seven years ago and that he lived alone. It was reported by the Applicant to Dr Siklich that he was experiencing mood changes and that he got angry very easily. The Applicant also reported that he was sleeping poorly and waking frequently due to his back pain. He had poor energy levels and struggled to concentrate. The Applicant reported that he injured his back and shoulder whilst working and that he had pains that moved about his body. He can lose body strength suddenly. He had seen a neurologist, Associate Professor Andrew Lee. Dr Siklich noted that the Applicant had been diagnosed as suffering from exercise induced dystonia.
The Applicant reported to Dr Siklich, consistent with his evidence, that he had attended the practice of clinical psychologist Ms Goodwin for several years but more recently had attended a different psychologist for approximately 10 sessions. He did not find that treatment as helpful as that provided by Ms Goodwin.
Dr Siklich reported that the Applicant ‘has developed lots of ill-defined physical health issues which I suspect a[re] mostly an expression of his psychological distress’.[13] He opined that the Applicant suffered from a major depressive disorder that had been long-standing and of fluctuating intensity. He recommended that the Applicant go back to Ms Goodwin and continue with the treatment provided. He also recommended his dose of medication Cymbalta could be increased. No further appointment was made.
[13] Ibid 247.
Psychological Reports of Ms Sally Goodwin
The Tribunal was provided with several reports from Ms Sally Goodwin, clinical psychologist, which spanned from 2016 to 2019. The Applicant was referred to Ms Goodwin for psychological treatment by his general practitioner, Dr Nguyen, in 2016, prior to the relevant qualification period.
Report dated 19 February 2016
In Ms Goodwin’s report dated 19 February 2016,[14] the Applicant reported that he found dealing with cleaning franchise owners very stressful and that they were critical and demanding of him. He reported concerns about head pain and memory loss which started approximately two months prior. He had a CT scan on his brain, but nothing indicated the reason for his memory problems. Ms Goodwin questioned whether the Applicant’s reported concerns may be indicative of dissociation. The Applicant reported being treated for PTSD about 20 years earlier. Ms Goodwin suggested the Applicant be referred to a neurologist. He reported having vision problems. He completed a brief depression questionnaire, which indicated he had a moderate degree of depression. He had occasional suicide ideations and his sleep was variable. He looked tired.
[14] Exhibit F: Effect Psychology Report dated 19 February 2016.
Reports dated 17 May 2016 and 20 May 2016
In her report dated 17 May 2016,[15] Ms Goodwin noted that the Applicant had been referred to the memory clinic at the Queen Elizabeth Hospital, but the hospital decided not to assess him, the reason for which is unclear. The Applicant was then reporting frequent episodes of forgetfulness, head pain, occasional numbness and dizziness. Again, it was recommended the Applicant have a neurological assessment. It was opined that a neuropsychological assessment could also help determine whether there was an organic issue or whether there were psychological issues underpinning his condition. It was opined that the Applicant’s reported memory problems may be related to his stress and depression. Ms Goodwin also reported that she and the Applicant had been working on cognitive therapy strategies and that she had been teaching him relaxation skills. Ms Goodwin suggested to the Applicant that he explore the idea of commencing antidepressant medication.
[15] Ibid: Effect Psychology Report dated 17 May 2016.
By way of letter dated 20 May 2016 to CNC Consulting,[16] Ms Goodwin requested a memory assessment. Ms Goodwin thought that the Applicant’s symptoms might be indicative of panic type anxiety and depression perhaps to the point of dissociation.
[16] Ibid: Effect Psychology Report dated 20 May 2016.
Report dated 25 October 2016
In her medical report dated 25 October 2016,[17] Ms Goodwin noted the Applicant had not returned to see her since July 2016 and had failed to attend three scheduled appointments. It was thought that the Applicant had not followed up on his neurological assessment. It was reported that when trying to contact the Applicant, Ms Goodman was told he would contact her at some point in the future but has not done so.
[17] Ibid: Effect Psychology Report dated 25 October 2016.
Report dated 17 July 2017
The Applicant was again referred to Ms Goodwin by his new general practitioner Dr Tran to whom she reported on 17 July 2017.[18] She confirmed that his problem when she last saw him was stress related to work, and a preoccupation and worry about his neurological symptoms which included memory loss. In the absence of a neurological or neuropsychological opinion, which was requested by Ms Goodwin in 2016, Ms Goodwin suspected that his condition may relate to anxiety and a previous diagnosis of PTSD.
[18] Ibid: Effect Psychology Report dated 17 July 2017.
Ms Goodwin noted that the Applicant was no longer distressed about his neurological symptoms and his focus had shifted to worrying about his cardiac functioning. He now reported paraesthesia, shaking hands and body weakness associated with a fear of falling and possibly having a heart attack. He was working less and was aiming to stop work. He was also said to be very sleepy and depressed. Ms Goodwin suggested referral for a sleep study.
Report dated 28 November 2017
Ms Goodwin’s report dated 28 November 2017,[19] which was produced during the qualification period, confirmed that the Applicant had completed six clinical psychological sessions. Ms Goodwin also confirmed that she had been seeing the Applicant in relation to his anxiety and depression, which arose out of his work-related issues. She reported that the Applicant continued to struggle and was not working. She believed that the Applicant was unable to cope with work due to his physical and mental health problems.
[19] Ibid: Effect Psychology Report dated 28 November 2017.
However, Ms Goodwin also noted there was some improvement in his mood since he had been placed on antidepressant medication. When she last saw the Applicant, he was more willing to discuss his past, which continued to traumatise him. The Applicant still reported muscle weakness in his legs which occasionally give way. He was seeking a neurological opinion. Ms Goodwin was unsure whether his neurological problems could be explained solely within the context of his psychological distress. She recommended further investigation of his neurological status and an overnight sleep study with the hope of identifying the physical conditions underlying his excessive daytime fatigue and sleep apnoea.
Report dated 19 April 2018

In her report dated 19 April 2018,[20] Ms Goodwin noted that the Applicant had not returned to see her since 11 December 2017 and had cancelled his appointment in January 2018. She reported that follow-up enquiries revealed that the Applicant was seeing another psychologist. She reported that she was somewhat reluctant to support his DSP application, which might be why he did not return to see her. She also speculated that because she had suggested they try to address his PTSD relating to the Bosnian war, this was too overwhelming for him and he was avoiding further contact with her. Having noted he had been previously treated for PTSD Ms Goodwin said that as she got to know him, she realised that this seemed to be a problem that remains.
[20] Ibid: Effect Psychology Report dated 19 April 2018.
Report dated 17 August 2018
The Applicant was referred again to Ms Goodwin for treatment, this time by Dr Zuvela of South Road Day Night Surgery. In her report dated 17 August 2017,[21] Ms Goodwin stated that she had last seen the Applicant in December 2017 and then again on the day of the subject report. He had been seeing a new psychologist for a time, but he had been unhappy with the service.
[21] Ibid: Effect Psychology Report dated 17 August 2018.
Ms Goodwin reported that the Applicant had agreed to work through his traumatic memories of the Bosnian war and its impact on his life. He continued to be depressed and experience chronic pain. He was taking antidepressant medication. Ms Goodwin suggested his fatigue was likely to relate with mental health concerns but also with the possibility of sleep apnoea. She noted the Applicant did not follow through and arrange a sleep study.
Ms Goodwin reported that she planned to work with the Applicant to address his depressed mood and PTSD from a cognitive behavioural therapy perspective.
Report dated 15 October 2018
The Tribunal received a report from Ms Goodwin addressed to Centrelink dated 15 October 2018.[22]
[22] Ibid: Effect Psychology Report dated 15 October 2018.
Ms Goodwin reported knowing the Applicant for approximately two years. He was referred to her for treatment for anxiety and depression. She reported that the Applicant stopped working in September 2017. He was feeling bullied in the workplace and was feeling significantly stressed and depressed at the time and not coping with work. The Applicant reported ‘experiencing a number of physical health problems including chronic pain (in his back, neck and knee) and neurological disturbances which included poor concentration and memory loss.’[23] Ms Goodwin opined that the Applicant’s experience of being bullied at work:[24]
[T]riggered traumatic memories of his time in the Bosnian war … When I first met him he said he had dealt with the trauma in prior treatment with a psychiatrist who had diagnosed him with Post-traumatic Stress Disorder (PTSD) … Associated with this, he has recurrent episodes of depression with occasional suicidal ideation.
[23] Ibid 1.
[24] Ibid.
After detailing some of his mental health and behavioural complaints, Ms Goodwin then said, ‘[h]e has an anxious disposition and this often manifests in worry about his physical health’.[25] She then referred to the Applicant’s complaint about feeling tired, chronic pain, numbness, weakness, dizziness, tremor and forgetfulness and then reported:[26]
My understanding is that he was diagnosed with a benign tremor, migraines and exercise induced dystonia by his neurologist Dr Andrew Lee, but that the cause of his pain and cognitive disturbance remained inconclusive. It is unclear whether his physical health problems are a manifestation of severe psychological distress, are due to excessive health anxiety related to his general anxiety and PTSD, and/or due to physical injuries that have failed to fully resolve.
[25] Ibid.
[26] Ibid.
Ms Goodwin recommended Centrelink seek a medical opinion in relation to his physical health problems and also suggested it would be useful to assess his cognitive functioning, for example, in relation to concentration and memory. She does not perform that function. She opined that the extent and cause of his cognitive problems remained undetermined despite neurological assessment.
Ms Goodwin reported that the focus of her work was managing the Applicant’s distress related to work when he was still working and then on mood management. She then reported:[27]
We have started talking about his traumatic memories, but treatment for PTSD with me has only recently commenced. He has at times dropped out of therapy, presumably due to the distress related to talking about traumatic past events, but he has shown a new commitment recently to resuming psychological treatment. I plan to work more specifically with him on his PTSD using cognitive behaviour therapy which is an evidence-based treatment. He is also taking antidepressant medication which I have encouraged him to continue to take
[27] Ibid 2.
Ms Goodwin said that she had encouraged the Applicant to consider doing some short hours of work and employment or perhaps in a volunteer capacity but opined that he would not be well enough to hold down a full-time job at the time of the report, or potentially in the future, given his chronic physical and mental health problems.
Report dated 15 February 2019
In a brief report to the Applicant’s general practitioner Dr Zuvela dated 15 February 2019,[28] Ms Goodwin advised that the Applicant had completed six clinical psychological sessions and that she had been discussing his memories of the Bosnian war as his PTSD still interferes with his functioning. This treatment was important because the Applicant intended to travel to Bosnia in 2019 to visit his parents and he was anxious about that return.
[28] Ibid: Effect Psychology Report dated 15 February 2019.
Report dated 4 April 2019
In her report dated 4 April 2019,[29] for the purpose of the Applicant’s application for DSP, Ms Goodwin outlined the history of the Applicant’s psychological treatment. She confirmed that in September 2017 the focus of the psychology sessions was on work related anxiety, health anxiety and depression. The Applicant was suffering from depression, despite psychological treatment, and was taking antidepressant medication. Having regard to her ongoing treatment of the Applicant, Ms Goodwin now opined that by late 2017 he was then still suffering from PTSD. His conditions were exacerbated by the incident in the workplace. She reported:[30]
I realise now, in hindsight given further information about the nature of his trauma-related condition as he became more willing to talk about his experience in the Bosnian war, that he was suffering from PTSD all along in addition to depression. I realise also that his various physical health problems are possibly related, at least in part, to the PTSD. I realise now that when I saw him in 2016 and 2017 that PTSD was the likely core presenting problem (main diagnosis) and that when he stopped working in September 2017 he will be unable to work for a long time given the severity of the problem.
[29] Ibid: Effect Psychology Report dated 4 April 2019.
[30] Ibid 3.
It was Ms Goodwin’s opinion that the Applicant was suffering from PTSD and depression when he first applied for DSP in September 2017. She reported that with the benefit of hindsight it would have been reasonable to determine in September 2017 that the Applicant would be unlikely, even with treatment, to have significant functional improvement for at least two years and she therefore supported his application for DSP.
Evidence of Ms Sally Goodwin
Ms Goodwin gave oral evidence to the Tribunal via telephone. She confirmed she first saw the Applicant in 2016 and was treating him for anxiety and depression. The focus of treatment was in relation to his distress with respect to workplace issues. At that time his physical complaints had not been determined. He was suffering from pain at various body sites. The reason for his memory problems was undetermined. Ms Goodwin confirmed that she recommended a neurological assessment, but this did not occur.
Ms Goodwin said the she was not treating the Applicant for PTSD in 2016. She confirmed that Dr Fin Cai, rheumatologist, reported that there was no evidence of tissue injury and his chronic pain was related to his anxiety. Ms Goodwin said that report accorded with her view that the Applicant’s pain problems were related to psychological distress.
Ms Goodwin confirmed that she stopped seeing the Applicant for a period of about eight months between January and August 2018. In respect of the qualification period, she saw the Applicant on 16 September 2017. At that time he was experiencing housing problems and was feeling isolated and lonely. She focused her treatment on supportive counselling and agreed with his plan that he stop working and try and relax. She recommended he use more positive social activities.
In October and November 2017, the Applicant was still having accommodation issues. Ms Goodwin was concerned about his neurological condition. He was still taking medication but suffered nightmares in relation to the war in Bosnia. She talked to him but did not push him about his memories. His general practitioner queried whether he had multiple sclerosis and if stress was a factor in his neurological condition. Around this time, the Applicant started to open up more about the Bosnian war and they began exposure therapy.
On 5 December 2017, the Applicant did not attend his appointment. By 11 December 2017, he was upset because his claim for DSP had been rejected, and this overshadowed his other concerns. He was still depressed. They discussed the need to work on his PTSD but a phone call from his general practitioner interrupted the session and that was not pursued further. The Applicant cancelled his appointment on 25 January 2018, and she did not see him again for eight months.
Ms Goodwin next saw the Applicant on 17 August 2018. They talked more about the Bosnian war with the view to continuing exposure therapy. Since then they have tried to deal with the Applicant’s issues arising out of the Bosnian war. They have also dealt with significant distress related to Centrelink and his inability to return to see his parents in Bosnia.
Ms Goodwin said that there had been no real change in his condition since the qualification period. There were two main issues interrupting that change:
(a)The Applicant’s ongoing significant distress in relation to Centrelink; and
(b)The Applicant’s ongoing distress in relation to his parents who are now elderly.
There has been no progress in his anxiety and his depression fluctuates. Ms Goodwin opined that the Applicant will require two years of further treatment.
In cross-examination, Counsel referred Ms Goodwin to her report dated 28 November 2017, in which she indicated that she was seeing the Applicant for anxiety and depression in the context of work-related stress. She was then taken to her other reports which, in summary, indicated that he was generally depressed, that he had workplace triggered anxiety, that Ms Goodwin had recommended a trial on antidepressant medication and recommended a referral for sleep study. The Applicant said he was coping with his PTSD, and Ms Goodwin agreed that the Applicant was demonstrating thought avoidance.
Ms Goodwin said that her report dated 4 April 2019 was written with the benefit of hindsight. She said in hindsight, the Applicant’s PTSD was present in 2017 but was not picked up on because of his avoidance. They were now pursuing cognitive behavioural therapy and relaxation. Cognitive behavioural therapy is about treating unhelpful beliefs. This was not the treatment the Applicant was receiving 2017. In 2017, the treatment was directed to his depression and anxiety in relation to his work and lifestyle issues.
On 20 August 2019, Ms Goodwin spoke with Dr Sandra Armstrong, medical advisor at the Health Professional Advisory Unit. Dr Armstrong provided a detailed report dated 27 August 2019[31] which was received into evidence. Dr Armstrong also gave evidence before the Tribunal.
[31] Exhibit D: Annexure A.
Dr Armstrong’s report opined that following assessment of the evidence and her conversation with Ms Goodwin she detailed six descriptors each of which were put to Ms Goodwin for comment. They are as follows:[32]
(a)Self-care and independent living: Ms Goodwin told me that [the Applicant] could live independently, but he relies on his son for emotional and practical support. His son receives a carer allowance in respect of caring for his father, but lives separately. Moderate functional impact.
(b)Social/recreational activities and travel: Ms Goodwin told me that he doesn’t socialise and could perhaps travel a few kilometres in an unfamiliar area. I note that [the Applicant] is planning to visit Bosnia to visit his elderly parents, although he is anxious about visiting them due to his traumatic memories. Moderate functional impact.
(c)Interpersonal relationships: Ms Goodwin said he has a few friends, although they are not close friends and he sees them occasionally. [The Applicant] has maintained a relationship with his son. Moderate functional impact.
(d)Concentration and task completion: Ms Goodwin told me that his concentration can drift off in sessions and he does report reduced concentration. I note the medical evidence indicates that [the Applicant has reported significant memory problems for some time, but he has not had formal neuropsychological testing due to the excessive cost of these. Moderate functional impact.
(e)Behaviour, planning and decision-making: Ms Goodwin was not sure to what extent his decision-making was impaired, but he can be irritable. His anger issues have not resulted in any significant consequences for him. Ms Goodwin did indicate that [the Applicant] relied on his son for practical support, which I presume could include help with decision-making. Moderate functional impact.
(f)Work/training capacity: Ms Goodwin told me that his attendance at sessions can be sporadic and he would not be reliable at attending work. [the Applicant] would have difficulties with others giving him orders or criticising him. He believes he is completely disabled and Ms Goodwin felt he was quite genuine about this. She told me that his mindset was not shiftable about returning to work. Severe functional impact.
[32] Ibid 4-5.
In relation to those descriptors, Ms Goodwin said that she agreed with the comments and assessments in paragraphs relating to self-care and independent living, concentration and task completion and work/training capacity. As for the comments relating to social/recreational activities and travel, Ms Goodwin said the Applicant was unable to travel to Bosnia. He hopes to get there one day but he is not ready yet. He has a few friends, but they are not intimate. He will go to the pub. He is impaired in respect to socialising. She would say that currently his condition is of severe functional impact. As for the comments relating to interpersonal relationships, Ms Goodwin said that the Applicant goes out occasionally, including to the pub. He sees a friend who he has been seeing for a while. He gets angry quickly. She opined he suffered severe functional impact. As for the paragraph relating to concentration and task completion, Ms Goodwin said that the Applicant needs neuropsychological testing to determine whether there is a medical reason for his loss of memory, namely, whether it is brain related or emotional distress.
Ms Goodwin said that in 2017, at the time of the qualification period, she thought that the Applicant could have undertaken part-time work. At that time, she was treating him for depression, and she felt that it was important that he return to work or actively look for work. She had hoped that he could undertake non-physical part-time work with an empathetic employer. However, it turned out that he was far more impaired than she originally thought.
Medical Report of Associate Professor Andrew Lee
The Tribunal received a report from Associate Professor Andrew Lee, neurologist, dated 9 August 2017. In this report, Associate Professor Lee said that the Applicant’s main problem was with musculoskeletal pain. The Applicant complained of having sore muscles when he got up. At times he had paraesthesia in his fingers. Associate Professor Lee suspected that the Applicant’s musculoskeletal pain may be related to his physical work and was referring him to rheumatologist, Dr Cai. In relation to the Applicant’s exercise induced dystonia, Associate Professor Lee reported that his cramping of muscles which occurs after working had resolved to a significant extent on medication, Sinemet. The Applicant’s migraines were reported to be stable. In relation to the Applicant’s right median nerve mononeuropathy it was reported that the MRI scans were incomplete, and the Applicant was asked to have the scan completed, but that he preferred not to as it was uncomfortable. This was contrary to the Applicant’s evidence, that he had two nerve conduction studies. Associate Professor Lee did not believe this condition was causing the Applicant’s inability to work. In relation to the Applicant’s social issues, it was reported that his musculoskeletal pain prevented the Applicant from working and, hence, Associate Professor Lee supported the Applicant in his application for DSP.
Medical Report of Dr Fin Cai
The Tribunal received a medical report of Dr Fin Cai, rheumatologist, dated 28 August 2017.[33] Dr Cai reported that the Applicant had developed generalised aches and pains involving both his muscles and joints over the past 12 months, short-term memory loss, generalised pins and needles and cramps in his calf muscles during and after his cleaning work. Dr Cai reports that an ECG was performed by the Applicant’s general practitioner some months earlier during an attack of aches and pains. The Applicant reported the results were normal. Dr Cai said the reported pain symptoms were short lived and lasted up to a few seconds at a time and that the Applicant sustained a mechanical fall onto his left knee about five months earlier. Dr Cai referred to medication being taken for his exercise induced dystonia and migraine and general aches and pains, which had also possibly alleviated his depressed mood. It was reported that the Applicant was not concerned about his generalised pain but more concerned regarding his tiredness.
[33] Exhibit A: T14, 172-173.
Dr Cai reported that there was no clinical evidence of connective tissue disease or inflammatory rheumatic disorder in relation to the Applicant’s generalised pain associated with lethargy. Dr Cai suspected that most of the Applicant’s symptoms were related to his depression and encouraged him to see his general practitioner and psychologist for ongoing management and restart gentle exercise for management of his lethargy. He had a blood test in December 2016 which revealed a reduced Vitamin D level, which may contribute to lethargy or non-specific myalgia. Dr Cai recommended this be retested by his general practitioner when he had his next blood test. There was a prior nerve conduction study that suggested a right median nerve motor neuropathy with a follow-up appointment in 2018 to monitor this condition.
Medical Report of Dr Sandra Armstrong
In her medical report dated 27 August 2018, Dr Sandra Armstrong provided a detailed overview of the Applicant’s medical conditions and various reports.
Post-traumatic Stress Disorder, Depression and Anxiety
Dr Armstrong reported that the Applicant has a long history of PTSD and depression. A psychological assessment in August 2000 said that the Applicant met the DSM IV diagnostic criteria for severe major depression disorder with chronic PTSD. He was having treatment at STTARS and was prescribed medication. His symptoms were improving. Dr Armstrong reported that the letters written by Ms Goodwin prior to the end of the qualification period did not seem to indicate a specific psychiatric diagnosis. She further notes that on 18 September 2017, his then general practitioner, Dr Tran, reports a diagnosis of PTSD and depression and a 9 December 2017 medical report by Dr Zuvela indicated a diagnosis of major depression, anxiety and PTSD. A report by Dr Siklich dated 24 July 2018 indicated that the Applicant had a major depressive disorder, which was long-standing and fluctuating intensity, but did not mention diagnosis of PTSD. Dr Armstrong reports that the letter from Ms Goodwin did not confirm a diagnosis of PTSD until her report dated 17 August 2018, which was nearly eight months after the end of the qualification period. Nonetheless, Dr Armstrong opined that the Applicant’s depression and PTSD were fully diagnosed as at the qualification period, having regard to the long history of previous diagnosis of PTSD, but not fully stabilised.

The Applicant’s chronic rotator cuff strain has not been specifically referred to in evidence as a cause or contributor to the Applicant’s upper limb function. There is no corroborating evidence by an appropriately qualified medical practitioner with respect to that diagnosis and its functional impact upon the Applicant. The Applicant described the consequence if he lifted his arm above his head, namely his arms become heavy. He also said he could hang out washing on the clothesline, but he feels tired afterwards. He has a stiff neck. However, the evidence is unclear whether the issues he complains of with respect to his upper limb function is caused or contributed by his shoulder, or spinal condition or whether such functional impairment is a sequela to his mental health condition. The Applicant has not specifically referred to shoulder pain or discomfort when describing this functional impairment. Accordingly, there is no evidence before the Tribunal that the condition was fully diagnosed, treated and stabilised and enlivened an entitlement to an assessment on the relevant Impairment Table.
Exercise Induced Dystonia
In his report dated 9 August 2017, Associate Professor Lee reported that the Applicant’s exercise induced dystonia had resolved to a significant extent. There was no evidence before the Tribunal that this condition was having any or significant effect on the Applicant during the qualification period entitling him to an assessment on the relevant Impairment Tables.
Migraines
Associate Professor Lee also reported that the Applicant’s migraines were stabilised in August 2017. The Tribunal notes that Applicant’s evidence that he was sent for a CT scan which was normal. He said in evidence that his now a day to day proposition but that he still had headaches every day. There is insufficient evidence to enliven an assessment on the relevant Impairment Table. In any event, this is a condition that is arguably a sequela to his mental health condition and before any assessment could be made his mental health condition needed to be fully diagnosed, treated and stabilised.
Hernia – Inguinal, Haemorrhoids and Left Leg Shorter
The Applicant’s hernia, haemorrhoids, and left leg shorter conditions have not been referred to in evidence and there is no corroborating evidence from an appropriately qualified medical practitioner, including with respect to the impact those conditions had on the Applicant during the qualification period. There is no evidence that the conditions were fully diagnosed, treated and stabilised and do not enliven an entitlement to an assessment on the relevant Impairment Tables.
Hand and Arm Pain including Right Median Nerve Motor Neuropathy
The Applicant said he suffers pain in his right hand and arm and in particular suffers from paraesthesia. He said paraesthesia would occur in non-specific parts of his body for a short period of time and could move to another part of his body. At times, the paraesthesia would be his whole body. There was no medical diagnosis corroborating this complaint. To the extent that there was corroborating evidence in relation to the Applicant’s arm, Dr Cai confirmed that a nerve conduction study suggested right arm median motor neuropathy within the right forearm, but there was no evidence about the functional impact this was having on his arm other than the Applicant’s complaint about its impact when writing. It should also be noted that Associate Professor Lee reported that he asked that Applicant to repeat the nerve conduction study because the first was incomplete as the Applicant was unable to remain still due to pain. The Applicant declined to have the second study. Hence, the evidence, at its highest, was only a suggestion of right arm median motor neuropathy and given the inconclusive nature of the evidence and the Applicant’s refusal to have a second conduction study. This condition was not fully diagnosed treated and stabilised in the qualification period. It is also unclear whether the Applicant’s mental health condition was having an impact on this condition.
Conclusion
The Applicant complained of a range of medical conditions which were ill defined and with varying levels of severity that changed over time. These conditions were arguably impacted upon by his mental health condition. It is unfortunate that prior to or during the qualification period the Applicant terminated his treatment with Ms Goodwin and that when treated he was not frank with her about the impact that the Bosnian war continued to have upon him. The Applicant has not satisfied the Tribunal that he has a fully diagnosed, treated and stabilised condition that attracts a severe impairment rating of 20 points or more, nor is the Tribunal satisfied of the evidence that he had a fully diagnosed, treated and stabilised condition that attracted any impairment rating. This is particularly so given the impact his mental health condition was having upon him during the qualification period.
It is now approximately 31 months since the Applicant lodged his claim for DSP. He has continued to consult Ms Goodwin since August 2018. As Dr Armstrong observed, the Applicant may now be in a better position to file a fresh claim for DSP should his condition now be fully diagnosed, treated and stabilised and its impact upon his other medical conditions and his continuing inability to work is capable of an assessment.
DECISION
The decision under review is affirmed.

164. I certify that the preceding one hundred and sixty three (163) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.....................[Sgnd]..............................
Associate
Dated: 23 April 2020

Date of hearing:

13 January 2020

Applicant:

Self-represented

Advocate for the Respondent:

Lee-Anne Odgers, Department of Human Services

[2020] AATA 938

23 April 2020

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal

Standing

Date of hearing:	13 January 2020
Applicant:	Self-represented
Advocate for the Respondent:	Lee-Anne Odgers, Department of Human Services