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

Dixon and Secretary, Department of Social Services (Social services second review) [2019] AATA 208 (21 February 2019)
Division:GENERAL DIVISION
File Number:2018/1108
Re:Michael Dixon
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell

Date:21 February 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
21 February 2019
INTRODUCTION

On 22 February 2017, Mr Michael Dixon (the Applicant) lodged a claim for the disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T 15, pages 90-119, DSP claim form.
The claim was rejected on 11 August 2017,[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. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 2 January 2018.[3]
[2] Exhibit 1, T Documents, T 21, page 167, Centrelink Notice: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T 27, pages 215-219, Authorised Review Officer 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) who affirmed the decision of the ARO on

10 February 2018.[4]
[4] Exhibit 1, T Documents, T 2, pages 2-9, Decision of the Social Services & Child Support Division.
Following this the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 2 March 2018.[5]
[5] Exhibit 1, T Documents, T 1, page 1, Application for Review.
On 31 January 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence by telephone, under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s claim for DSP form[6] he lists the following disabilities, illnesses or injuries:[7]
-Epilepsy (seizures etc)
-Pancreatitis
-Anxiety
[6] Exhibit 1, T Documents, T 15, pages 90-119, DSP claim form.
[7] Exhibit 1, T Documents, T 15, page 115, DSP claim form.
On 3 April 2017, the Applicant attended a face-to-face appointment with a Job Capacity Assessor (JCA). In a report dated 9 May 2017, the JCA made the following assessments:[8]
§ The Applicant’s epilepsy was a fully diagnosed condition but it was not fully treated and stabilised;
§ The Applicant’s alcohol dependence was a fully diagnosed condition but it was not fully treated and stabilised; and
§ The Applicant’s temporary work capacity was 0-7 hours per week and his baseline work capacity was 8-14 hours per week. However, his capacity for work within 2 years with intervention was 15-22 hours per week.
[8] Exhibit 1, T Documents, T 19, pages, 150-155, Job Capacity Assessment Report.
A decision was made to reject the Applicant’s DSP application on 11 August 2017, on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[9]
[9] Exhibit 1, T Documents, T 21, page 167, Centrelink Notice: Rejection of DSP claim.
On 15 August 2017, the Applicant sought review of the decision and provided a written submission,[10] together with further information in relation to treatment he undertook in June 2017 to August 2017, and proposed future treatment for alcohol dependence.[11]
[10] Exhibit 1, T Documents, T 22, pages 170-174, Review of Decision form, encl: Statement by the Applicant.
[11] Exhibit 1, T Documents, T 23, pages 175-195, Applicant Medical Information.
A file assessment was undertaken by a Job Capacity Assessor, whose professional discipline is listed as a ‘Rehabilitation Counsellor’.[12] The JCA issued a report dated

18 September 2017[13] reaching the same overall conclusion as the previous JCA report dated 9 May 2017.
[12] Exhibit 1, T Documents, T 25, page 196, Job Capacity Assessment Report.
[13] Exhibit 1, T Documents, T 24, pages 196-204, Job Capacity Assessment Report.
On 2 January 2018, an ARO affirmed the decision to refuse the Applicant’s DSP application having made the following key findings:[14]
• You have the following permanent conditions: epilepsy and alcohol dependence.
• Your conditions of epilepsy and alcohol dependence have not been fully treated and stabilised.
• Your total impairment rating is 0.
• You do not have an impairment rating of 20 points or more.
• You do not have a continuing inability to work 15 hours per week or more because of your impairment.
• Your temporary incapacity to work ceased on 29 November 2017.
[14] Exhibit 1, T Documents, T 27, page 216, Authorised Review Officer Decision and Notes.
On 19 December 2017, the Applicant sought review of the DSP refusal decision by the SSCSD. On 29 January 2018, having received an SSCSD hearing date the Applicant provided further information in relation to hospital admissions in early 2018.[15] After the SSCSD Hearing, conducted on 2 February 2018, the Applicant provided further information in relation to treatment he received for alcohol dependency in 2015.[16] On

10 February 2018, the decision under review was affirmed by the SSCSD.[17]
[15] Exhibit 1, T Documents, T 28, pages 220-228, Email to the SSCSD by the Applicant with attachments.
[16] Exhibit 4, Secretary’s Statement of Facts & Contentions, Annexure 1, A11-A125.
[17] Exhibit 1, T Documents, T 2, pages 2- 9, Decision of the Social Services & Child Support Division.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (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 predominate qualification questions before the Tribunal are:
1)Does the applicant have a physical, intellectual or psychiatric impairment;[18]
2)Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[19] and
3)Does the Applicant have a continuing inability to work?[20]
[18] Section 94(1)(a) of the Act.
[19] Section 94(1)(b) of the Act.
[20] 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:
(a) 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
(b) are function based rather than diagnosis based; and
(c) describe functional activities, abilities, symptoms and limitations; and
(d) 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 not do, not on the basis of what the person chooses to do or what others do for them.[21] 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.[22] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[23]
[21] Section 6(1) of the Determination.
[22] Section 6(2) of the Determination.
[23] 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.[24]
[24] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[25]
(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) more likely than not, in light of available evidence, to persist for more than 2 years.
[25] 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 two years.[26]
[26] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[27]
(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.
[27] 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 reliability 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.[28]
[28] 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; then identify the correct impairment rating.[29] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and 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.[30] 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.[31]
[29] Section 10 of the Determination.
[30] Sections 10(3) and (4) of the Determination.
[31] 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.[32]
[32] 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.[33]
[33] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[34]
[34] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[35]
[35] 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 22 February 2017, being the date the Applicant lodged his DSP application, and ending 13 weeks later on 22 May 2017. 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[36] and the Respondent considers the Applicant’s impairments include alcohol dependency,[37] epilepsy[38], pancreatitis[39] and anxiety.[40]
[36] Exhibit 4, Secretary’s Statement of Facts & Contentions, page 4, paragraph 24.
[37] Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 67, paragraphs 35-38.
[38] Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 7-9, paragraphs 39-44.
[39] Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 45-52.
[40] Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 53-59.
The remaining issues for the Tribunal to consider is:
(a) Whether, within the relevant period did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and
(b) If so, did the Applicant have a continuing inability to work?
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Hearing before this Tribunal the Respondent advised that the Applicant had made a further claim for DSP which was granted with a date of effect of 3 August 2018. The Respondent advised that the existence of the Applicant’s conditions was not in dispute, rather the dispute relates to whether the conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Respondent submitted that the subsequent granting of DSP had no bearing on its contentions in relation to the permanency of the Applicant’s conditions during the Relevant Period applicable to the decision currently under review.
At Hearing the Applicant gave evidence under affirmation and openly responded to both questions of the Tribunal and cross examination from the Respondent. I consider that the Applicant gave honest answers to the questions he was asked and am left with no doubt that the Applicant suffers impairments due to the conditions outlined below.
At the Hearing the Applicant gave evidence that, in his view, the functional impairment he suffers, as a result of his conditions, are those set out in the descriptors of the following Impairment Tables:
-20 points, severe impairment: Table 5 – Mental Health Function
-20 points, severe impairment: Table 7 – Brain Function
-5 points, mild impairment: Table 8 – Communication Function
-30 points, extreme impairment: Table 10 – Digestive and Reproductive Function
-10 points, moderate impairment: Table 15 - Functions of Consciousness
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.[41] As such the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and is likely to persist for more than 2 years.[42]
[41] Determination section 6(3).
[42] Determination section 6(4).
At the Hearing the Applicant told the Tribunal that he had not applied to Centrelink in relation to his alcohol use and expressed that he has been to rehabilitation before and ‘paid for that’. The Applicant indicated, on numerous occasions, that he did not consider his alcohol use as a condition which should be considered in isolation. In contrast, the SSCSD decision,[43] and the Respondent’s contentions,[44] both reference a separate alcohol misuse condition for which the contention was that the condition was fully diagnosed but not fully treated and fully stablished at the Relevant Period.
[43] Exhibit 1, T Documents, T 2, pages 2-9, Decision of the Social Services & Child Support Division.
[44] Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 6-7, paragraphs 35-38.
The medical evidence before the Tribunal makes it clear that the Applicant’s alcohol consumption impacted upon his pancreatitis and epilepsy conditions and, as set out below, affected whether those conditions were fully treated and fully stabilised during the Relevant Period. However, for the purpose of this Decision, I intend to deal with the conditions as outlined in the Applicant’s DSP claim form,[45] which accords with the evidence he provided at Hearing. In my view, there is no prejudice to either the Applicant or Respondent if the Applicant’s alcohol condition is not discussed as a separate condition for the purposes of the Relevant Period.
[45] Exhibit 1, T Documents, T 15, page 115, DSP claim form.
I will consider each of the Applicant’s impairments in turn.
Pancreatitis condition
There is a large amount of medical evidence before the Tribunal in relation to the Applicant’s pancreatitis condition. In a letter to Centrelink, dated 24 November 2014,
Dr Samuel Hay advised that the Applicant ‘suffers alcohol dependence with secondary pancreatitis’.[46] Dr Hay confirmed this diagnosis in a Centrelink Medical Certificate dated
[46] Exhibit 1, T Documents, T 7, page 77, Medical Certificate by Dr Samuel Hay, Your Doctors.
[47] Exhibit 1, T Documents, T 8, page 78, Medical Certificate by Dr Samuel Hay.
2 December 2014 in which he diagnosed alcohol dependence with pancreatitis with a date of onset being 25 March 2009, the prognosis being uncertain and treatment being ‘specialist review, inpatient detox program, medication’.[47]

In a Hospital Discharge Referral from John Hunter Hospital, dated 24 May 2016,
[48] Exhibit 1, T Documents, T 16, page 134, Maitland Hospital Discharge Referrals.
Dr Max Ray listed the Applicant’s primary diagnosis as ‘Alcohol-induced acute pancreatitis with pancreatic pseudocyst’.[48]
The Respondent contends that the Applicant’s pancreatitis condition was fully diagnosed[49] at the Relevant Period. The Respondent relied upon multiple Hospital Discharge Referrals relating to the Applicant’s admissions on 29 April 2016,[50]
6 May 2016,[51] 10 May 2016,[52] 21 October 2016,[53] 21 December 2016,[54]
[49] Exhibit 4, Secretary’s Statement of Facts & Contentions, paragraph 45.
[50] Exhibit 1, T Documents, T 16, pages 126-127, Maitland Hospital Discharge Referrals.
[51] Exhibit 1, T Documents, T 16, pages 128-130, Maitland Hospital Discharge Referrals.
[52] Exhibit 1, T Documents, T 16, pages 131-133, Maitland Hospital Discharge Referrals.
[53] Exhibit 1, T Documents, T 16, pages 137-139, Maitland Hospital Discharge Referrals.
[54] Exhibit 1, T Documents, T 16, pages 140-142, Maitland Hospital Discharge Referrals.
[55] Exhibit 1, T Documents, T 16, pages 143-146, Maitland Hospital Discharge Referrals.
[56] Exhibit 1, T Documents, T 20, pages 156-166, Maitland Hospital Discharge Referrals.
[57] Exhibit 4, Secretary’s Statement of Facts & Contentions, page 9, paragraph 46.
30 January 2017[55] and 27 May 2017,[56] all of which make reference to the Applicant’s pancreatitis condition.[57]
Based on the medical evidence before the Tribunal I am satisfied that the Applicant’s pancreatitis condition was fully diagnosed at the Relevant Period.
The Respondent contends that the Applicant’s pancreatitis condition was not fully treated or fully stabilised during the Relevant Period. The Respondent noted that the Hospital Discharge Referrals, outlined in paragraph 41 above, include recommendations to the Applicant that he cease or reduce his intake of alcohol and that he seek help from drug and alcohol services.[58]
[58] Exhibit 4, Secretary’s Statement of Facts & Contentions, page 9, paragraph 47.
From the evidence before the Tribunal, it is clear that the Applicant was still undergoing treatment during, and well after, the Relevant Period that would impact upon the stabilising of his pancreatitis condition.
On 22 June 2017, the Applicant was admitted into a seven-day medicated withdrawal management from alcohol program at Riverland’s Drug & Alcohol Service ahead of a planned admission to the Kadesh Rehabilitation Service for inpatient treatment.[59]
[59] Exhibit 1, T Documents, T 23, page 176, Applicant Medical Information.
In a letter dated 16 August 2017, Mr Craig Perkins, Psychologist/AOD-Counsellor provided that the Applicant had been attending AOD counselling for alcohol dependence, having attended 8 counselling sessions between 7 June 2017 and 16 August 2017.

Mr Perkins confirmed that the Applicant had completed an inpatient detox and had been accepted for admission to the Kadesh Rehabilitation Unit. Mr Perkins further opined that the Applicant’s ‘current medical condition means that he needs to place a complete priority on his recovery’.[60]
[60] Exhibit 1, T Documents, T 23, page 181, Applicant Medical Information.
In a report dated 18 September 2017, the JCA provided, in relation to the Applicant’s alcohol dependency and associated chronic pancreatitis, that:
The diagnosis has been confirmed by a clinician and the client is engaged in ongoing reasonable treatment. Craig Perkins was contacted by telephone on 18/09/2017 and he advised that the client is currently engaged with a 6-8 week live-in rehabilitation program and is highly motivated to maintain current abstinence.[61]
[61] Exhibit 1, T Documents, T 24, page 198, Job Capacity Assessment Report.
The Applicant did attend the Kadesh Rehabilitation service between late

August 2017 and late October 2017.[62]
[62] Exhibit 1, T Documents, T 25 pages 205-210, Kadesh Rehabilitation Services Report – Although the quality of this document is extremely poor it is clear that the Applicant attended the service. Subsequently medical evidence makes reference to the Applicant receiving the treatment and this was confirmed by the Applicant at Hearing.
Further, Hospital Discharge Notes provided by the Applicant show that he continued to have bouts of pancreatitis, requiring hospital admission, well into 2018.[63] Discharge Referral Notes from Coffs Harbour Health Campus, relating to the Applicant’s admission on 18 January 2018, provided that further treatment was required, including a follow up with Dr Yvonne Guttner in clinic at Coffs Harbour Hospital; GP referral to endoscopist for non-urgent EUS removal of gastric stent for pancreatic pseudocyst; and, provided for a new medication regime.[64]
[63] Exhibit 5, Applicant’s Medical Records, Northern NSW and Mid North Local Health District; Exhibit 2, Discharge Referral Notes, Bellinger River District Hospital; Exhibit 1, T Documents, T 28, Email to SSCSD by the Applicant with attachments.
[64] Exhibit 1, T Documents, T 28, pages 222-227, Email to the SSCSD by the Applicant with attachments.
In relation to his pancreatitis condition, the Applicant told the Tribunal at Hearing that he did not know about the condition until he had his first bout and that it was very painful. The Applicant said that he takes the required medication and that once the damage has been done it has been done. He advised that apart from being on Endone there is not much that can be done for the condition other than to eat well and stay well.
Under cross examination, the Applicant was asked whether he considered there to be a link between his alcohol consumption and his pancreatitis condition. The Applicant told the Tribunal that he was not certain, as his father had passed away due to the condition and he was not a drinker. The Respondent asked the Applicant that if the doctors describe the pancreatitis condition as alcohol related and treatment is to cease or reduce alcohol intake, if it is fair to say treatment is rehabilitation. The Applicant stated that doctors always say things are alcohol related “the first thing they say is to not smoke or drink”. The Applicant stated he had already undertaken alcohol rehabilitation in 2015, and again in 2017, and should not have to continue to pay for that.
Based on the evidence before the Tribunal, I find that the Applicant’s pancreatitis condition was not fully treated and fully stabilised during the Relevant Period as the condition required ongoing treatment which included alcohol intake management, changes to medication and multiple hospital reviews.
As I have found that the Applicant’s pancreatitis condition was not fully treated and fully stabilised during the Relevant Period, it is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Epilepsy Condition
In a Medical Report for Job Capacity Assessment, dated 7 August 2012, Dr Robert Luo provided a diagnosis of epilepsy, with date of onset being 2007 when seizures commenced and a neurologist was seen, with treatment being medication (Epilim) and the condition having ‘nil’ impact on the Applicant’s ability to function.[65]
[65] Exhibit 1, T Documents, T 4, pages 60-68, Medical Report - DSP form by Dr Robert Luo, Ashfield
Medhealth Centre.
Based on the report of Dr Luo, and the large quantity of subsequent medical evidence including Centrelink Medical Reports and Hospital Discharge summaries, I am satisfied that the Applicant’s Epilepsy condition was fully diagnosed at the Relevant Period. The Respondent does not dispute this finding.[66]
[66] Exhibit 4, Secretary’s Statement of Facts & Contentions, page 7, paragraph 39.
However, the Respondent contends that the condition was not fully treated or fully stabilised during the Relevant Period, relying upon a number of medical reports.[67] Relevantly, those reports include a:
[67] Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 7-8, paragraph 40.
·Maitland Hospital Emergency Department Discharge Referral, dated
14 January 2016, noting the Applicant's admission after an epileptic seizure and recommending his GP follow up with a referral for Neurologist for review of epilepsy control.[68]
[68] Exhibit 1, T Documents, T16, page 121, Maitland Hospital Discharge Referrals.
·Centrelink Medical Certificate provided by Dr Thet Htwe (General Practitioner), dated 9 March 2016, confirming a diagnosis of epilepsy, that the Applicant was currently on epilim and planned treatment was to follow up with the neurologist at John Hunter Hospital.[69]
[69] Exhibit 1, T Documents, T 12 page 87, Medical Certificate by Dr Thet Htwe, George Street Family Medical Practice.
·John Hunter Hospital Discharge Referral, dated 21 December 2016, noting the Applicant’s admission after a seizure indicating that the Applicant was advised that ‘alcohol intake increases the risk of seizures and medications non-adherence’. The ‘Plan’ upon discharge was:
1.Advised not to drive (does not currently drive anyway).
2.Advised alcohol intake increases risk of seizures and medications non-adherence. Offered drug and alcohol team involvement but declined. He had previous encounters with drug and alcohol and rehabilitation teams.
3.Analgesia with paracetamol and ibuprofen.
4.Seek medical advice if any further concerns.
5.Follow up with GP.[70]
·Report provided by Dr Gonzalo Aguirrebarrena (Consultant in Emergency Medicine) dated 7 March 2017, noting the Applicant was being treated with ‘Keppra 500 mg BD’ for epilepsy and that his ictal episodes are mainly triggered by ETOH intake or withdrawal.
Dr Aguirrebarrena provided that the Applicant was discharged advised to continue his regular treatment and decrease the amount of alcohol intake. [71]
·Report provided by Dr Ferdinand Miteff (Interventional Neurologist), dated 2 August 2017, noting that the Applicant continued to have seizures and bouts of pancreatitis until attending detox. Dr Miteff further noted that, having attended detox and not consuming alcohol for the past 5 weeks, the Applicant had had no further seizures and this coincides with his being compliant to Keppra.[72]
·After conducting a face-to-face interview with the Applicant, the JCA report, dated 9 May 2017, provided the following information:[73]
Client reported that he has had neurologist review while in hospital and reported that he has been on a waitlist for outpatient review of this condition, although reported that he does not have this appointment for several months. Client reported that his medication was changed by a neurologist during a hospital admission a few months ago. Client reported that he is generally good at taking his medication, although advised that he forgets to take his medication occasionally. Client reported that he was initially diagnosed with epilepsy approximately 15 years ago, and reported that over the past couple of years he has been having seizures approximately every 2-3 months, and advised that he generally goes to hospital when he has a seizure and is unwell for 2-3 days at a time. Client advised that heat, fatigue and alcohol use are factors that will cause increased risk of seizure.
[70] Exhibit 1, T Documents, T 16 page 141, Maitland Hospital Discharge Referrals.
[71] Exhibit 1, T Documents, T 18 page 149, Medical Summary by Dr Gonzalo Aguirrebarrena, St Vincent's Hospital.
[72] Exhibit 1, T Documents, T 23, page 180, Applicant Medical Information.
[73] Exhibit 1, T Documents, T 19, page 151, Job Capacity Assessment Report.
As outlined in paragraphs 45 to 48 above, the Applicant underwent rehabilitation for his alcohol dependency between June and October 2017, which extends beyond the Relevant Period.
At Hearing the Applicant told the Tribunal that he has no warning of when a seizure is going to occur. The Applicant has been told to take his medication morning and night and to not stop taking it suddenly. The Applicant indicated that he did not think that his epilepsy condition was related to his alcohol use. The Applicant advised that his medication had been changed from Epilin to Keppra and that this was working better.
On cross examination, the Respondent asked the Applicant, firstly, whether it was fair to say that alcohol use would bring on a seizure if the Applicant was to drink too much, and secondly, if his epilepsy had worsened over time. The Applicant told the Tribunal that he was certain that, when diagnosed, the epilepsy had nothing to do with alcohol use “but that when you have epilepsy the doctors tell you not to drink”. He said that his epilepsy had been the same over time. The Respondent asked the Applicant about the doctor’s report at T18, which provides that his epilepsy episodes are mainly triggered by ETOH intake or withdrawal.[74] The Applicant indicated that he did not agree and that doctors hang onto “the alcohol thing but it is not true”.
[74] Exhibit 1, T Documents, T18 page 149, Medical Summary by Dr Gonzalo Aguirrebarrena, St Vincent's Hospital.
Based on the medical evidence before the Tribunal, and the evidence provided at Hearing by the Applicant, I find that the Applicant’s epilepsy condition was not fully treated and fully stabilised during the Relevant Period as he required ongoing treatment which included alcohol intake management, changes to medication and multiple hospital reviews.
As I have found that the Applicant’s epilepsy condition was not fully treated and fully stabilised during the Relevant Period, it is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Anxiety condition
To be considered fully diagnosed Table 5 of the Impairment Tables, which relates to Mental Health, requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[75]
[75] The Determination, Table 5.
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from a mental health condition during the Relevant Period.
In a Centrelink Medical Certificate, dated 25 March 2014, Dr Jenny Thai, General Practitioner listed the Applicant’s diagnosis as anxiety, depression and alcohol dependence. The date of onset for anxiety and depression being

25 March 2004, with the symptoms being severe ‘which prevent him from being able to look for work and perform work in any capacity’. The prognosis was uncertain, with treatment being ‘specialist review, inpatient detox program, medication’.[76] The information provided by Dr Thai in this Certificate was confirmed by Dr Hay, General Practitioner in a Certificate dated 2 December 2014.[77]
[76] Exhibit 1, T Documents, T 6, page 76, Medical Certificate by Dr Jenny Thai, Your Doctors.
[77] Exhibit 1, T Documents, T8, page 78, Medical Certificate by Dr Samuel Hay.
In a Centrelink Medical Certificate dated 15 June 2015 Dr Cheng, General Practitioner lists the Applicant’s diagnosis as ‘alcohol use related disorder + comorbid anxiety’ being ‘temporary’ with the date of onset being 15 June 2010. Current treatment was listed as ‘Regular counselling’ and planned treatment as ‘Requires inpatient and outpatient treatment in private hospital’. The overall prognosis was that the symptoms of ‘Misuse of alcohol, anxiety’ will affect the Applicant’s capacity to work or stage for 3-12 months.[78]
[78] Exhibit 1, T Documents, T 10, page 85, Medical Certificate by Dr Samuel Cheng, Your Doctors.
In the medical evidence relating to the Applicants 2015 admission to the Northside Group for treatment for alcohol dependence, it is noted on a Nursing Admission Form that the Applicant had depression.[79] Further, a Clinical Care Plan detailed that the Applicant’s presenting problem was ETOH dependence, Anxiety.[80] Further, in a referral to the Northside Group, date 5 June 2015, Dr McGugan lists the Applicant’s past history as including Mild Anxiety.[81]
[79] Exhibit 4, Secretary’s Statement of Facts & Contentions, Annexure 2, A48.
[80] Exhibit 4, Secretary’s Statement of Facts & Contentions, Annexure 2, A50.
[81] Exhibit 4, Secretary’s Statement of Facts & Contentions, Annexure 2, A20.
Outside of these references to the Applicant’s mental health conditions there is no evidence of a formal diagnosis by a psychiatrist or clinical psychologist, or medical evidence of specific treatment or functional impacts of the condition.
The Tribunal notes that Dr Chan, General Practitioner completed a Legal Aid Queensland questionnaire in relation to the Applicant’s mental health condition. The responses provided by Dr Chan were dated 30 August 2018 and do not make reference to the Relevant Period – rather, the Legal Aid letter, which is dated 16 May 2018, makes reference to a new DSP Claim. In relation to diagnosis of a mental health condition,

Dr Chan provided:[82]
Alcohol use disorder was diagnosed officially on admission to Northside Clinic (18/6/15 + 9/7/15) under the care of Dr Stephen Hooker (psychiatrist). He had mental health issue which were managed by his GP from [approximately] 2010 to 2015 related to anxiety/depression and alcohol dependence.
[82] Exhibit 3, Medical Report of Dr Carol Chan, dated 16 May 2018.
The diagnosis above from Dr Chan does not specifically relate to a mental health condition being diagnosed by a psychiatrist or clinical psychologist. The remainder of her responses do not go to the Relevant Period and as a consequence are of no assistance to the Tribunal.
The Applicant told the Tribunal at the Hearing that a Psychiatrist at Northside Clinic put him on tablets called ‘Seroquel’ which he takes of an evening and that he had been seeing Kathleen Lindsay, a Clinical Psychologist in Coffs Harbour, for the past couple of years. The Applicant has provided extensive medical evidence to the Tribunal reflecting his Seroquel prescription and the Tribunal has no reason to doubt that he was seeing Ms Lindsay or had seen a psychiatrist at the Northside Clinic. However, the problem for the Tribunal is that there is no medical evidence of an anxiety or mental health condition diagnosis being provided by either practitioner.
The Respondent contends that there is no evidence of the Applicant’s anxiety diagnosis being confirmed by a clinical psychologist or psychiatrist or that the Applicant undertook psychotherapy or specialist intervention in relation to depression or anxiety during the Relevant Period. As such, the Respondent contends that there is insufficient evidence to conclude that the Applicant’s anxiety was fully diagnosed, treated or stabilised during the relevant period.[83]
[83] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 10 September 2018, paragraphs 58 and 59.
Based on the evidence before the Tribunal, I agree with the Respondent’s contentions and find that the Applicant’s anxiety condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period. Accordingly, the Applicant’s anxiety condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the 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 pancreatitis and epilepsy conditions were fully diagnosed, however were not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

I find that the Applicant’s mental health condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and 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 78 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..........................[SGD]...........................
Associate
Dated: 21 February 2019

Date of hearing: 31 January 2019

Applicant: By phone

Advocate for the Respondent: Mr Rick McQuinlan

[2019] AATA 208

21 February 2019

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Appeal

Standing

Statutory Construction

Date of hearing:	31 January 2019
Applicant:	By phone
Advocate for the Respondent:	Mr Rick McQuinlan