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

Dilger and Secretary, Department of Social Services (Social services second review) [2019] AATA 3902 (26 September 2019)
Division:GENERAL DIVISION
File Number:2019/0042
Re:Patrick Dilger
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:26 September 2019
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[SGD]..............................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
26 September 2019
INTRODUCTION

On 14 February 2018, Mr Patrick Dilger (the Applicant) lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T55, page 316, Centrelink Mainframe screen prints: customer contact notes from 11 January 2018 to 25 September 2018.
The claim was rejected on 3 July 2018,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. The decision was reviewed by an Authorised Review Officer (ARO) who affirmed the decision to refuse the application for DSP on 25 September 2018.[3]
[2] Exhibit 1, T Documents, T46, pages 278-279, Letter: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T50, pages 284-289, ARO Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on 5 December 2018.[4]
[4] Exhibit 1, T Documents, T2, page 7, Decision of the SSCSD; Exhibit 7, Written reasons for decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 3 January 2019.[5]
[5] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.
On 21 August 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s DSP claim form[6] she lists the following disabilities, illnesses or injuries:[7]
·PTSD
·Lower back injury L5 S1 fusion in 2001
·Upper back injury 2014
·Facial reconstruction 2007
[6] Exhibit 1, T Documents, T42, pages 236-264, DSP claim form.
[7] Exhibit 1, T Documents, T42, page 258, DSP claim form.
On 26 June 2018, the Applicant attended a face to face assessment with a Job Capacity Assessor (JCA).[8] On 2 July 2018, the Assessor and contributing assessor, whose professional disciplines are listed as Mental Health Nurse and Registered Occupational Therapist respectively, provided a report[9] recommending the following:[10]
(a)The Applicant’s spinal disorder was fully diagnosed, treated and stabilised (FDTS) and an impairment rating of 5 points under Table 4 and 0 points under Table 2 of the Impairment Tables was appropriate.
(b)The Applicant’s PTSD was not fully diagnosed as no diagnosis had been made by a psychiatrist or a clinical psychologist.
(c)The Applicant’s traumatic brain injury was fully diagnosed but not fully treated and stabilised as the available medical evidence did not confirm that the Applicant has engaged in all reasonable treatments and recent ophthalmology assessment regarding his blurred vision.
(d)The Applicant had a capacity to work between 15 – 22 hours per week within 2 years with intervention in light less skilled work such as console operator, retail and customer service.
[8]     Exhibit 1, T Documents, T45, page 268, JCA Report.
[9]     Exhibit 1, T Documents, T45, pages 268-277, JCA Report.
[10]    Summary of JCA findings outlined in Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, pages 1-2, paragraph 3.2.
On 3 July 2018, the Applicant’s claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more.[11]
[11] Exhibit 1, T Documents, T46, pages 278-279, Letter: Rejection of DSP claim.
The Applicant provided additional information and sought review of this decision. On 25 September 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[12]
·You have the following permanent condition: a Spinal Disorder
·Your condition of Traumatic Brain Injury is not accepted as being permanent as it has not been fully treated and stabilised.
·Your condition of Post-Traumatic Stress Disorder is not accepted as being permanent as it has not been fully diagnosed.
·You do not have an impairment rating of 20 points or more.
[12] Exhibit 1, T Documents, T50, page 285, ARO Decision and Notes.
On 26 September 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[13] On 5 December 2018, the SSCSD affirmed the decision under review.[14]
[13] Exhibit 1, T Documents, T51, pages 290-291, Application to the SSCSD.
[14] Exhibit 1, T Documents, T2, page 7, Decision of the SSCSD; Exhibit 7, Written reasons for decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[15]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[16] and
3.Does the Applicant have a continuing inability to work?[17]
[15]    Section 94(1)(a) of the Act.
[16]    Section 94(1)(b) of the Act.
[17]    Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(i)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(ii)are function based rather than diagnosis based; and
(iii)describe functional activities, abilities, symptoms and limitations; and
(iv)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[18] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[19] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[20]
[18]    Section 6(1) of the Determination.
[19]    Section 6(2) of the Determination.
[20]    Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: if the person’s condition causing the impairment; is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[21]
[21] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[22]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[22] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[23]
[23] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[24]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[24] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[25]
[25] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[26] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[27] Where multiple 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.[28]
[26]    Section 10 of the Determination.
[27]    Sections 10(3) and (4) of the Determination.
[28]    Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[29]
[29] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[30]
[30] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[31]
[31] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[32]
[32] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 14 February 2018, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 16 May 2018. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[33] The Respondent considers the Applicant’s impairments include traumatic brain injury,[34] PTSD[35] and spinal conditions.[36]
[33]    Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, page 7, paragraph 4.18.
[34]    Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, pages 7-8, paragraphs 4.19-4.28.
[35]    Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, pages 8-10, paragraphs 4.29-4.39.
[36]    Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, pages 10-11, paragraphs 4.40-4.43.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross-examination from the Respondent. I consider that the Applicant gave honest answers to the questions he was asked and was forthcoming in providing his evidence. I accept that the Applicant suffers impairments and that despite any functional impacts they cause him, he has a strong focus on being active in the parenting of his three children. It was clear to the Tribunal that the Applicant’s wife offers him significant support and that he is dedicated to his family. This should be commended.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[37] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[38] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[39] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[40]
[37]    Section 6(3) of the Determination.
[38]    Section 6(4) of the Determination.
[39]    Section 6(2) of the Determination.
[40]    Section 8(1) of the Determination.
Spinal Condition
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant has a longstanding spinal condition that relates to both upper and lower back injuries. Further there is no doubt that this condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned impairment ratings under the Impairment Tables. This point is not in contention.[41]
[41] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, page 10, paragraph 4.40.
The Respondent contends that the Applicant’s spinal condition can, at most, be assigned 5 impairment points under Table 4 of the Impairment Tables. In support of this contention, the Respondent relies upon the following:[42]
[42] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, pages 10-11, paragraphs 4.41-4.42.
(a)The Applicant's functional abilities following assessment at the Back/Pain program at the Sunshine Coast Rehabilitation Service (March 2015) were as follows:
(i)sitting for 45 minutes;
(ii)standing for 15-20 minutes;
(iii)walking for 15 minutes;
(iv)capable of full squat;
(v)cycling up to 20 minutes per day (T37, p222).
(vi)can lift his son from the ground who is 6kg (T37, p224).
(b)The Applicant's reporting to the JCA (July 2018) that he:
(i)is able to sit for 60 minutes,
(ii)is able to stand for 30 minutes;
(iii)is able to lift / carry less than 10kg;
(iv)requires rest periods when walking through the shopping mall;
(v)is able to bend to his knees and twist at the waist;
(vi)is able to use stairs, however finds this difficult;
(vii)is able to move his head in all directions, although this is painful;
(viii)is independent with self-care and home duties (T45/270).
At the Hearing, the Applicant told the Tribunal that:
·His spinal condition has gotten worse over the last year.
·When travelling in the car, he needs to stop every 30-45 minutes for a break and that it is easier for him to drive as then he concentrates on driving rather than his pain.
·He is unable to get things out of overhead cupboards. He uses a step rather than reaching.
·He cannot turn his head or bend his neck without moving his trunk.
·He can bend forward to pick up a light object from a desk or table; however, he bends his knees to pick things up. He cannot tilt, so he leans against the table.
·He can remain seated for at least 10 minutes however it depends on the chair and he needs to move around while seated.
·He sometimes loses feeling in his hands.
·He can do buttons up when forced to do so.
·He has problems picking up coins, however he can do it.

On cross-examination, the Applicant told the Tribunal that:
·He had surgeries in 2000 and 2001, facet joint injections, radio frequency treatment (which was unsuccessful), rehabilitation at the Sunshine Coast Rehabilitation Service in March 2015 and on discharge he was observed to be able to sit for 45 minutes.
·He told the JCA in June 2018 that he could sit for 60 minutes, stand for 30 minutes and that was correct at the time.
·There had been no further injury to his back between 2015 and the JCA report however his back had got worse.
·He confirmed the information provided in the back/pain program from the Sunshine Coast Rehabilitation Services dated 16 March 2015 (details set out in Respondent’s contentions in paragraph 33 above).
·In 2015 he could lift his son who was six kilograms at the time from the floor to his waist and from his waist to his shoulder, he helped cooking and still helps cooking now, he tinkered around with old cars to the limited extent he was able to – it calms him down – he still tinkers in his shed now.
·He was able to drive in 2018 and he drives to Pelican Waters, but needs to stop along the way. His car is automatic and has mirrors that check blind spots and he can put on his own seatbelt.
·He had told the JCA that he could do up buttons and zippers and lift a two-litre bottle of milk.
Table 4 of the Impairment Tables looks at functional impacts upon spinal function and provides the following descriptors:

5

There is a mild functional impact on activities involving spinal function.

(1)       The person has some difficulty in:

(a)       activities over head height (e.g. activities requiring the person to look upwards); or

(b)       bending to knee level and straightening up again without difficulty; or

(c)       turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)       The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)       the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)       the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)       the person is unable to bend forward to pick up a light object placed at knee height; or

(d)       the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)       The person is unable to:

(a)       perform any overhead activities; or

(b)       turn their head, or bend their neck, without moving their trunk; or

(c)       bend forward to pick up a light object from a desk or table; or

(d)       remain seated for at least 10 minutes.

The Respondent contends that there is no corroborating evidence that indicates that the Applicant meets the 10 point descriptors under Table 4 of the Impairment Tables.
In a letter dated 7 February 2018 Dr Colan McGree, general practitioner, opined that the symptoms and functional impact of the Applicant’s lower back injury in 2001, resulting in L5/S1 fusion, was “severe pain and unable to Lift, bend, carry, stand or sit for long periods of time”.[43]
[43] Exhibit 1, T Documents, T43, page 265, Medical report: Dr Colan McGree.
In the JCA report dated 2 July 2018 the Assessor noted that the Applicant “reported physical limitations including: sitting 60 minutes, standing 30 minutes, lifting/carrying less than 10 kg and requires rest periods when walking through the shopping mall. He is able to bend to his knees and twist at the waist. The client reports he is able to use stairs, however, this is difficult and he avoids it. The client reports he is able to move his head in all directions although this is painful. Client indicates the pain disturbs his sleep. The client confirms that he is independent with self-care and home duties”.[44]
[44] Exhibit 1, T Documents, T45, page 270, JCA Report.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and that the condition can be assigned an impairment rating under Table 4 of the Impairment Tables.
Based on the evidence before the Tribunal as it relates to the Relevant Period, I find that Applicant’s spinal condition can be assigned 5 points on Table 4 of the Impairment Tables. I acknowledge that the Applicant advised the Tribunal that his back has worsened since the Relevant Period and that he provided further reports from Dr McGree dated 14 March 2019[45] which are supportive of this conclusion. However, the Tribunal is limited to considering the evidence before it in relation to the Applicant’s situation during the Relevant Period. There is no corroborating evidence that the Applicant meets either the 10 point or 20 point descriptors under Table 4 of the Impairment Tables. Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[46] This does not mean that the Applicant’s functional impairments may not attract more than 5 points under Table 4 at a point in time after the current Relevant Period.
[45] Exhibit 4, Residual Functional Capacity Form completed by Dr Colan McGree.
[46] Section 8(1) of the Determination.
Traumatic Brain Injury Condition
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant’s traumatic brain injury condition was fully diagnosed at the Relevant Period. This point is not in contention.[47]
[47] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, page 7, paragraph 4.19.
The report of Ms Debbie Anderson, clinical neuropsychologist, dated 16 November 2007 sets out the diagnosis and prognosis at that time.[48]
[48] Exhibit 1, T Documents, T23, pages 132-137, Neuropsychology report: Ms Debbie Anderson.
The Respondent contends that the Applicant’s traumatic brain injury condition was not fully treated or fully stabilised at the Relevant Period on the basis that there is no independent evidence after 2007 in relation to treatment, rehabilitation or further neurologist assessment.[49]
[49] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, page 7, paragraph 4.20.
The Respondent also contends that there is insufficient evidence to support a finding that the Applicant had undertaken reasonable treatment in relation to his reported migraine or vision symptoms as there is no evidence of up-to-date neurological assessment, targeted pharmacology for migraines or any recent ophthalmology assessment for blurred vision.[50]
[50] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, page 7, paragraph 4.21.
At the Hearing, the Applicant told the Tribunal:
·He had fluid in his brain which was leaking from his ear and he was placed on medication to stabilise this.
·He saw a neurologist for WorkCover twice, but have not seen anyone since.
·He has blurred vision which is worse in his right eye and he wears glasses as a result.
·He has memory issues, so he does memory activities. He needs to write down and record things otherwise he does not retain the information.
·He gets migraines and has nerve pain in his face.
·He takes OxyContin, Endone and Lyrica for pain.
·He could complete most day-to-day tasks, however he goes everywhere with his wife who assists him. He makes decisions, problem solves and plans together with his wife as he can get confused.
On cross-examination, the Applicant told the Tribunal that:
·He has not seen a neurologist recently or undertaken any neurological assessments as he cannot afford it. He needs to follow up a referral to the public system with his doctor.
In a letter dated 7 February 2018, Dr McGree lists treatment and care as facial reconstruction, specialist reviews, rehabilitation. He then lists symptoms and functional impact as PTSD, short term memory loss, blurred vision, headaches and migraines. He does not address current or ongoing treatment.[51]
[51] Exhibit 1, T Documents, T43, page 265, Medial report: Dr Colan McGree.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am not satisfied that the Applicant’s traumatic brain injury condition was fully treated and fully stabilised during the Relevant Period.
Accordingly, the Applicant’s traumatic brain injury condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
PTSD Condition
The Respondent contends that the Applicant’s PTSD condition was not fully diagnosed during the Relevant Period as there is no definitive evidence that the condition has been diagnosed by a psychiatrist or a clinical psychologist.[52]
[52] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, pages 8-9, paragraphs 4.29-4.32.
The Respondent contended that the report of Ms Anderson dated 10 November 2017 noted active PTSD, is not sufficient for the purposes of Table 5 of the Impairment Tables.[53]
[53] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, page 8, paragraph 4.30.
In a letter dated 24 August 2018 Mr Graham Killoran, consulting psychologist, provided that the Applicant was referred to him in October 2017 for psychological treatment for PTSD and stated:[54]
Although he has made some progress it is my assessment he is still suffering from PTSD. [The Applicant] will require ongoing psychological help for the foreseeable future.
[54] Exhibit 1, T Documents, T47, page 280, Psychology report: Graham M Killoran.
At the Hearing, the Applicant told the Tribunal that:
·He has not been able to get information in relation to the diagnosis of his PTSD as this was done by Dr Flanagan as part of his WorkCover claim and he only saw him during 2007-2008 when the sessions were covered by WorkCover.
·The only treatment he has received is from Dr McGree and he is on a new medication as the other medication was not controlling his mood. He was getting frustrated. It is a 200 km trip to see Dr McGree.
On cross-examination, the Applicant told the Tribunal that he:
·Has seen a clinical psychologist, however he was only referred to her after February 2019.
·Saw Dr Flanagan in 2007, however there are no reports as WorkCover will not release any.
·Had not seen a psychiatrist between 2007 and 2019 other than Dr Andersen in 2007.
·Was referred to Mr Killoran, in 2017 and he last saw him on 24 August 2018. He wanted to see a long-term person who would stay in town.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am not satisfied that the Applicant’s PTSD condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. There is a lack of evidence before the Tribunal that supports a diagnosis from a psychiatrist or clinical psychologist during or prior to the Relevant Period. While the Tribunal acknowledges the reference to the WorkCover doctor, there is no supporting evidence. Further, even if I could find that the Applicant’s PTSD condition was fully diagnosed, the evidence before the Tribunal does not establish that all reasonable treatment had been undertaken or that the condition was stable during the Relevant Period.
The Tribunal notes that the Applicant provided further reports from Dr McGree dated 14 March 2019[55] which address the Applicant’s PTSD condition, however this document has no weight in this matter as it does not reference the Relevant Period nor does it reference a diagnosis by an appropriately qualified medical practitioner as required by the Determination.
[55] Exhibit 4, Residual Functional Capacity Form completed by Dr Colan McGree; Exhibit 5, Questionnaire – Mental Health completed by Dr Colan McGree.
Accordingly, the Applicant’s PTSD condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
Continuing Inability to Work
As I have found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and could be assigned 5 impairment points under Table 4 of the Impairment Tables.
I find that the Applicant’s PTSD condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables. I am unable to assign impairment points for the condition.
I find that the Applicant’s traumatic brain injury condition was fully diagnosed, but was not fully treated and fully stabilised during the Relevant Period. Therefore, the condition could not be considered permanent for the purposes of applying the Impairment Tables. I am unable to assign impairment points for the condition.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

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

..........................[SGD]...............................
Associate
Dated: 26 September 2019

Date of Hearing: 21 August 2019

Applicant: By phone

Advocate for the Respondent: Ms Jacky Vetter

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 3902

26 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of Hearing:	21 August 2019
Applicant:	By phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers