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

Dubrovsky and Secretary, Department of Social Services (Social services second review) [2020] AATA 3372 (2 September 2020)
Division:GENERAL DIVISION
File Number:2019/5744
Re:Paul Boris Dubrovsky
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:2 September 2020
Place:Brisbane

The decision under review is affirmed.
................[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
2 September 2020
INTRODUCTION

On 12 June 2018, Mr Paul Dubrovsky (the Applicant) lodged a claim for the disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T 29, pages 234-266, DSP claim form.
The Applicant’s claim was rejected on 20 November 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. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 7 March 2019.[3]
[2] Exhibit 1, T Documents, T35, pages 358-359, Centrelink Notice: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T40, pages 370-377, 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

19 August 2019.[4]
[4] Exhibit 1, T Documents, T2, pages 6-12, 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 11 September 2019.[5]
[5] Exhibit 1, T Documents, T1, pages 1-5, Application for Review.
BACKGROUND AND CLAIM HISTORY
On 29 July 2016, the Applicant had a fall down stairs and sustained multiple traumatic injuries including a frontal lobe extra-dural haematoma, and multiple skull, orbital, facial, ribs and sternal fractures. He required reconstruction and internal fixation of the face and orbital fractures, and evacuation of the extra-dural haematoma.[6]
[6] Summary taken from Exhibit 1, T Documents, T39, page 367, Health Professional Advisory Unit Opinion.
The Applicant made a claim for DSP dated 3 November 2016 (the 2016 Claim).[7] On the Applicant’s claim for DSP form[8] he lists his disabilities, illnesses or injuries as ‘brain injury’.
[7] Exhibit 1, T Documents, T13, pages 167-196, DSP claim form.
[8] Exhibit 1, T Documents, T13, page 192, DSP claim form.
In support of his application and throughout the claim process the Applicant provided a number of medical certificates and reports from his treating general practitioners and specialists, together with Queensland Health Discharge Summaries in relation to his admissions to hospital.[9]
[9] Found at Exhibit 1, T Documents: T4, T5, T6, T7, T8, T9, T10, T11, T12, T14, T15, T16, T17, T18, T19.
On 9 January 2017, a decision was made to reject the 2016 Claim for DSP.[10] This decision was reviewed by an ARO and affirmed on 30 August 2017 on the basis that the Applicant’s considered conditions were found not to be fully diagnosed, fully treated and fully stabilised and as such he did not have an impairment rating of 20 points or more under the Impairment Tables.[11]
[10] Exhibit 1, T Documents, T20, page 208, Decision of Authorised Review Officer.
[11] Exhibit 1, T Documents, T20, pages 207-212, Decision of Authorised Review Officer.
The Applicant made a further claim for DSP on 12 June 2018 (the 2018 Claim).[12] It is this 2018 Claim for DSP that is the subject of the application before this Tribunal. On the Applicant’s claim for DSP form[13] he lists his disabilities, illnesses or injuries as ‘epilepsy, double vision, hallucinations, brain damage resulting in coordination problems, speech problems, memory loss, loss in time.’
[12] Exhibit 1, T Documents, T29, pages 234-266, DSP claim form.
[13] Exhibit 1, T Documents, T 29, page 259, DSP claim form.
In support of this application and throughout the assessment and review process the Applicant provided a number of further medical reports and certificates.[14]
[14] Found at Exhibit 1, T Documents; T21, T22, T23, T24, T25, T27, T28, T30, T31, T32, T33.
On 13 November 2018, the Applicant attended a face to face Job Capacity Assessment (JCA) with an assessor whose professional discipline is listed as an ‘occupational therapist’.[15] In the resulting report, dated 19 November 2018,[16] the Assessor concluded the Applicant’s:
(a)Traumatic Brain Injury was fully diagnosed but was not fully treated and fully stabilised as further specialist review by neurosurgery and ophthalmology was pending and likely to significantly improve the Applicant’s functional capacity.[17]
(b)Alcohol Dependence condition was fully diagnosed but was not fully treated and fully stabilised as limited treatment had taken place and further alcohol rehabilitation was likely to improve the Applicant’s functional capacity.[18]
(c)Psychological condition, being anxiety and depression was not fully diagnosed, fully treated and fully stabilised as there was no evidence of diagnosis by a psychiatrist or clinical psychologist and specialist intervention was likely to significantly improve the Applicant’s functional capacity.[19]
(d)Capacity for work within 2 years with intervention as 15-22 hours per week.[20]
[15]    Exhibit 1, T Documents, T34, page 350, Job Capacity Assessment Report.
[16]    Exhibit 1, T Documents, T34, pages 350-357, Job Capacity Assessment Report.
[17]    Exhibit 1, T Documents, T34, page 351, Job Capacity Assessment Report.
[18]    Exhibit 1, T Documents, T34, page 352, Job Capacity Assessment Report.
[19]    Exhibit 1, T Documents, T34, page 352, Job Capacity Assessment Report.
[20]    Exhibit 1, T Documents, Page 354, Job Capacity Assessment Report.
The Applicant’s 2018 Claim was rejected on 20 November 2018,[21] 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 Applicant sought review of that decision.[22]
[21] Exhibit 1, T Documents, T 35, pages 358-359, Centrelink Notice: Rejection of DSP claim.
[22] Exhibit 1, T Documents, T36, 360-362, Centrelink Notice: Rejection of your claim for DSP – annotated by Applicant and T37, page 363, Centrelink Notice: Information about a recent decision.
On 5 December 2018, a DSP Medical Eligibility Assessment Recommendation was made by an assessor whose professional discipline is listed as a ‘registered nurse’. The Assessor undertook a file review and recommended that the Applicant’s claim be rejected on the basis that the JCA Report of 13 November 2018 was a current and valid assessment.[23]
[23] Exhibit 1, T Documents, T38, pages 364-365, Disability Support Pension Medical Eligibility Assessment Recommendation.
The Applicant’s claim was further referred to the Health Professional Advisory Unit (HPAU) for opinion in relation to the appropriate impairment rating that should be assigned. The HPAU had before it the medical evidence provided up to that date by the Applicant, together with documents that formed part of the Respondent’s databases, they also spoke to Dr Ruth Hopgood, the Applicant’s general practitioner.[24]
[24] Exhibit 1, T Documents, T39, page 366, Health Professional Advisory Unit Opinion.
The HPAU provided a report outlining their opinion dated 1 March 2019.[25] The HPAU provided:[26]
… The medical evidence indicates that [the Applicant] had a Traumatic Brian Injury [TBI] in July 2016, which has resulted in diplopia, dysarthria, mobility issues and probable epileptic seizures. He also has pre-existing issues with alcohol use, depression and anxiety.
[25] Exhibit 1, T Documents, T39, pages 366-369, Health Professional Advisory Unit Opinion.
[26] Exhibit 1, T Documents, T39, pages 366-367, Health Professional Advisory Unit Opinion.
The HPAU assessed the Applicant’s:
(a)alcohol use disorder as fully diagnosed, noting he has a long history of binge alcohol use, but considered that the condition was not fully treated and fully stabilised as he had not received any treatment for alcohol dependence for several years. He indicated on a relevant triage form that he is pre-contemplative (no intention of changing his behaviour for the foreseeable future and may not see it as a problem). It was noted that it was unclear what functional impact the Applicant’s alcohol use disorder had at the time of his claim.[27]
[27]    Exhibit 1, T Documents, T39, page 367, Health Professional Advisory Unit Opinion.
(b)depression and anxiety as not fully diagnosed as the neuropsychological assessment performed by Dr Torbey who is a clinical psychologist and clinical neurophysiologist did not specify a psychiatric diagnosis. It noted that Dr Torbey had recommended a psychiatric assessment of which the Applicant had refused.[28]
(c)traumatic brain injury (TBI) as fully diagnosed, fully treated and fully stabilised as at the time of claim it has been nearly 2 years after his original injury and considered that his TBI was unlikely to significantly improve.[29] It opined that the TBI left the Applicant with a number of residual difficulties of which it assessed at the time of claim as follows:[30]
·Diplopia for which the Applicant does not want further surgery, which is reasonable in the circumstances and is considered fully diagnosed, fully treated and fully stabilised. No impairment rating can be assigned using Table 12 of the Impairment Tables in the absence of supporting evidence from an ophthalmologist. The Applicant was yet to have an ophthalmology review. If a rating could be assigned the maximum rating would be 5 points.
·Speech difficulties which evidence indicates has improved so an impairment rating is not warranted.
·Mobility issues being a cerebellar gait were fully diagnosed, fully treated and fully stabilised. As the Applicant does not use a walking aid and there is no medical evidence to indicate that he has difficulty standing for more than 10 minutes the appropriate impairment rating under Table 3 of the Impairment Tables is zero points.
·Loss of consciousness, which the most likely diagnosis is epileptic seizures was fully diagnosed however was not fully treated and fully stabilised as the evidence indicates that the Applicant was non-compliant with appropriate medication during the period.
·Memory and concentration difficulties being cognitive issues were fully diagnosed but not fully treated and fully stabilised as:
The 18/10/17 neuropsychology assessment report by Dr Torbey states that he reported significant difficulties including recalling events, and with concertation planning and organisation. However, this report indicates that [the Applicant’s] “overall results indicate his cognitive abilities were largely intact with several areas of strength”. Dr Torbey states his reported cognitive deficits might have been impacted by this alcohol dependence, depression and other mental health issues. Dr Torbey indicated that he was likely to benefit from further assessment, including a psychiatric or psychological assessment. A neuropsychology assessment is usually seen as the “gold standard” assessment of cognitive issues.
If a rating could be allocated the maximum rating would be 10 points on Table 7 of the Impairment Tables.
[28]    Exhibit 1, T Documents, T39, page 367, Health Professional Advisory Unit Opinion.
[29]    Exhibit 1, T Documents, T39, page 367, Health Professional Advisory Unit Opinion.
[30]    Exhibit 1, T Documents, T39, page 367-369, Health Professional Advisory Unit Opinion.
The HPAU provided the following summary:[31]
I consider that for varied of reasons, none of [the Applicant’s] medical conditions can be allocated an impairment rating. This situation may change if he were to undergo psychiatric assessment and management. As he has not been assigned a severe impairment rating the issue of a “continuing inability to work” does not need to be considered. However, I acknowledge that Dr Hopgood believes he would have significant difficulties obtaining suitable employment due to his medical issues.
[31] Exhibit 1, T Documents, T39, page 369, Health Professional Advisory Unit Opinion.
On 7 March 2019, an ARO affirmed the decision to refuse the Applicant’s 2018 Claim for DSP, [32] making the following findings:[33]
·You have the following permanent condition: a mobility disorder.
·Your conditions of a traumatic brain injury, a vision disorder, epilepsy, alcohol dependence and depression and anxiety are not accepted as being permanent as they have not been fully treated and stabilised.
·You do not have an impairment rating of 20 points of more.
[32] Exhibit 1, T Documents, T 40, pages 370-377, Authorised Review Officer Decision and Notes.
[33] Exhibit 1, T Documents, T40, page 371, Authorised Review Officer Decision and Notes.
The Applicant sought review of the ARO decision by the SSCSD.[34] He submitted further statements and medical evidence.[35]
[34] Exhibit 1, T Documents, T41, pages 378-379, Request for Statement.
[35] Exhibit 1, T Documents, T2, pages 12-80, Attachments A1 to A68, T42, page 380, Medical Certificate of Dr Hopgood, T43, pages 381-384, Submission by Applicant, T45, page 386, Medical Certificate of Dr Hopgood.
On 19 August 2019, the SSCSD affirmed the decision to refuse the Applicant’s claim for DSP adopting the findings of the ARO.[36]
[36] Exhibit 1, T Documents, T2, pages 6-12, Decision of the SSCSD.
By way of application dated 11 September 2019, the Applicant sought further review of the decision by the General Division of this Tribunal. In the lead up to the Hearing the Applicant provided a number of further medical reports dated after April 2019.[37] Further documents were also provided by the Respondent dated between 2016 and 2020.[38]
[37] Exhibit 4, Medical Evidence provided to the Tribunal by the Applicant on 23 October 2019.
[38] Exhibit 2, Supplementary T Documents filed by the Respondent on 24 February 2020.
On 6 November 2019, the Applicant lodged a further claim for DSP (the November 2019 Claim),[39] providing further medical evidence. Based on the available evidence and as a result of the Respondent’s assessment process of the November 2019 Claim, the Applicant’s traumatic brain injury and psychological condition were found to be fully diagnosed, fully treated and fully stabilised and assigned zero impairment points under Table 7 and 20 impairment points under Table 5 of the Impairment Tables.[40]
[39] Exhibit 2, Supplementary T Documents, ST37, pages 73-84, Claim for DSP.
[40] Exhibit 2, Supplementary T Documents, ST40, pages 88-97, Job Capacity Assessment Report and ST41, pages 98-105, Disability Medical Assessment.
On 6 February 2020, the Applicant was granted DSP with date of effect being 6 November 2019, the day on which he made his 2019 Claim for DSP.[41]
[41] Exhibit 2, Supplementary T Documents, ST43, pages 110-112, Your DSP.
A Hearing was conducted 13 August 2020, to consider the Applicant’s 2018 Claim. At Hearing the Applicant was self-represented, and was assisted by his mother Ms Wendy Watkins (Ms Watkins). Both the Applicant and Ms Watkins appeared by telephone and gave evidence under affirmation. The Respondent was represented by Ms Gillian Gehrke.
The Tribunal considers that the Applicant and Ms Watkins openly responded to questions from the Tribunal and the Respondent and gave honest answers to the questions they were asked.
The Tribunal accepts that the Applicant suffers impairments and acknowledges that the Applicant’s life materially changed as a result of his fall in July 2016. The Applicant’s experiences in relation to having the resulting conditions treated and adapting to his new circumstances have, and no doubt will, continue to cause him a great deal of pain and frustration. Those not directly connected with the Applicant have no possible mechanism to fully understand the challenges that have been faced and continue to face the Applicant.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his 2018 Claim or within 13 weeks thereafter.
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 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.
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;[42]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[43] and
3.does the Applicant have a continuing inability to work?[44]
[42]    Section 94(1)(a) of the Act.
[43]    Section 94(1)(b) of the Act.
[44]    Section 94(1)(c) of the Act.
Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[45]
[45] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[46] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.
[46] Sections 6(3) and (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:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and,
(c)whether treatment is continuing or planned in the next two years.[47]
[47] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[48]
(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.
[48]    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.[49]
[49] Section 6(7) of the Determination.
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.[50] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[51]
[50] Section 6(2) of the Determination.
[51] Section 8(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 (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; 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 POS 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.[52]
[52] 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.[53]
[53] 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 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.[54]
[54] 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 12 June 2018, being the date, the Applicant lodged his 2018 Claim for DSP, and ending 13 weeks later on 11 September 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.[55]
[55] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 6, paragraph 36.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and
2. If so, did the Applicant have a continuing inability to work?
EVIDENCE
As referred to in the Background and Claim History set out above there is a significant amount of medical evidence before the Tribunal. There is no dispute in this matter that the Applicant has suffered with long term alcohol use disorder, depression and anxiety and that subsequent to his fall in July 2016 he acquired a traumatic brain injury which resulted in a number of additional conditions presenting themselves. As such the Tribunal does not consider it necessary to outline each medical certificate or report and notes that the HPAU opinion was based on the review of the material available prior to March 2019. For the reasons set out below the Tribunal agrees with the opinions expressed in the HPAU opinion.
The Tribunal notes that the medical certificates provided by Dr Hopgood, the Applicant’s general practitioner between February 2017 and August 2018 consistently:[56]
·diagnosis the main medical condition impacting upon the Applicant as being ‘Head Injury’ with symptoms including diplopia, headaches, memory loss, mobility issues, chest pain, unsteady on feet, seizures, hallucinations and planned treatment including possible further surgery, neuropsychological assessment, EEG, neurological assessment, ophthalmology review, medication; and
·showed other medical conditions impacting upon the Applicant as including depression and anxiety.
[56] Exhibit 1, T Documents, T15, page 200, Medical Certificate of Dr Hopgood, T17, page 204, Medical Certificate of Dr Hopgood, T19, page 206, Medical Certificate of Dr Hopgood, T24, page 223, Medical Certificate of Dr Hopgood, T25, page 224, Verification of Medical Conditions completed by Dr Hopgood, T27, page 230, Medical Certificate of Dr Hopgood, T228, pages 231-233, Verification of Medical Conditions completed by Dr Hopgood, T32, page 344, Medical Certificate of Dr Hopgood; Exhibit 2, Supplementary T Documents, ST2, page 3, Medical Report of Dr Hopgood, ST3, page 4, Medical Certificate of Dr Hopgood, ST5, page 6, Verification of Medical Conditions completed by Dr Hopgood.
The Applicant underwent an EEG on 2 May 2017[57] and a neuropsychological assessment on 18 October 2017.[58]
[57] Exhibit 1, T Documents, T18, page 205, EEG Report of Dr Ventzi Bonev.
[58] Exhibit 1, T Documents, T21, page 213, Medical Report of Dr Elizabeth Torbey.
As a result of the neuropsychological assessment, Dr Elizabeth Torbey, clinical psychologist and clinical neuropsychologist provided a report dated 18 October 2017.[59] Dr Torbey provided the summary and conclusions:[60]
…….
Overall, the results of the current assessment indicate that [the Applicant’s] cognitive abilities are largely intact, with several areas of strength, although there was some evidence of mild impairment within his complex processing speed and some aspects of executive functioning …..
His identified cognitive deficits might be explained by his recent TBI (i.e. the injury to his frontal lobes), although his history of alcohol dependence may also be contributing to his current performances, particularly given the subtle changes in his central pons seen on his recent MRI Brain that were thought to be unrelated to his TBI but instead may reflect a possible metabolic insult (of which I understand is often seen in patients with a history of alcohol dependence, periods of withdrawal, and/or replenishment of nutrition). [The Applicant’s] responses on the questionnaire also indicated that he is currently experiencing a significant degree of depression sand other mental health concerns, and it would be expected that such psychological difficulties (which are also associated with deficits in e.g. processing speed) may have also impacted on his performance.
Furthermore, the origin and nature of [the Applicant’s] reported seizure-like episodes remain somewhat unclear – including whether they were occurring prior to his fall (and if so, whether they were possibly associated with his alcohol dependence and withdrawal) or if they commenced after his TBI as he initially alleged. He has also reported experiencing possible hallucinations since the injury, of which the basis also appears unclear, and he would likely benefit from further assessment regarding this. Nonetheless, it is evident that these issues, in addition to his current depression and anxiety concerns, continue to have a significant impact on [the Applicant’s] quality of life and daily functioning (despite his relatively intact cognitive abilities).
[59] Exhibit 1, T Documents, T22, pages 214-221, Medical Report of Dr Elizabeth Torbey.
[60] Exhibit 1, T Documents, T22, pages 220-221, Medical Report of Dr Elizabeth Torbey.
Dr Torbey recommended that the Applicant “may benefit from referral to a psychiatrist (or potentially a neuropsychiatrist, given the complexities in his neurological presentation) for further assessment and opinion of his current hallucination experiences and also a psychologist for evidence-based psychological intervention aimed at addressing his current depression and anxiety concerns via a Better Access to Mental Health Care Plan from his GP.”[61]
[61] Exhibit 1, T Documents, T22, page 221, Medical Report of Dr Elizabeth Torbey.
The Applicant attended a feedback session with Dr Torbey on 23 November 2017.[62] In the report of the same date, Dr Torbey provided:[63]
Key recommendations discussed with [the Applicant] were to consider undergoing another EEG to possibly clarify the nature of his seizure episodes, as well as to consider engaging with a psychiatrist and/or psychologist for further Ax and treatment of his current mental health concerns. Importance of remaining abstinent from ETOH given his vulnerable brain was also discussed.
He reported that he did not wish to engage with a psychiatrist or psychologist at present time (and felt his Lexapro was sufficient treatment for him), but that he was willing to undergo a further EEG.
[62] Exhibit 1, T Documents, T23, page 222, Medical Report of Dr Elizabeth Torbey.
[63] Exhibit 1, T Documents, T23, page 222, Medical Report of Dr Elizabeth Torbey.
In a report dated 29 June 2018, Dr Sachin Mishra, neurologist advised Dr Hopgood that the Applicant had been seen on 28 June 2018 in relation to his seizures and that it had been discussed that he needed to be on an anti-epileptic medication and agreed to take Phenytoin. Dr Mishra asked Dr Hopgood to commence and monitor the dose of Phenytoin for the Applicant.[64]
[64] Exhibit 2, Supplementary T Documents, ST7, pages 9-10, Medical Report, Dr Mishra.
Discharge summaries in relation to hospital admissions in July, November and December 2018 and the report dated 14 December 2018 of Dr Yang, neurology registrar indicate that the Applicant was either non-compliant with taking the prescribed anti-epileptic medication or that the dosage at the time was not at the optimal level .[65] Dr Hopgood indicated to the HPAU that after a bad seizure in early December 2018 the Applicant was compliant with the medication.[66]
[65] Exhibit 2, Supplementary T Documents, ST8, pages 11-14, Discharge Summary: Gold Coast Hospital and Health Service, ST9, pages 15-23, Discharge Summary: Gold Coast Hospital and Health Service, ST10, pages 24-28, Discharge Summary: Gold Coast Hospital and Health Service, ST11, pages 29-34, Discharge Summary: Gold Coast Hospital and Health Service, ST12, pages 35-36, Medical Report of Dr Yang.
[66] Exhibit 1, T Documents, T39, page 366, Health Professional Advisory Unit Opinion.
The medical evidence indicates that the Applicant did not see an ophthalmologist, psychiatrist, clinical psychologist, psychologist or undergo any alcohol dependency treatment within a reasonable time prior to or during the Relevant Period.
At Hearing the Applicant described waking up on 29 July 2016, 15 metres from his front door in the rain with his skull broken in 7 places, bleeding on his brain and a number of other fractures. Since that day the Applicant has also developed epilepsy and said he had, had more surgery and been in hospital more times than he can count.
The Applicant told the Tribunal that he understands that there are legal rules that have to be followed in relation to granting the DSP, however he sees those rules as being mechanical and said that they do not take the realities of individual cases into account.
The Applicant told the Tribunal that after his fall in July 2016 he has had everything he loves taken away from him, he said he previously enjoyed spear fishing, surfing, scuba diving and held a dive master licence, however, now could never go in the water again. He also previously enjoyed skateboarding, mountain bike riding and occasionally sky diving, however he could never do those things again. He previously worked as a boat building and had a courier company however cannot longer use power tools or drive. He said he previously enjoyed intimacy however his permanent brain damage had also taken his ability to be intimate away from him.
The Applicant told the Tribunal about an incident that occurred in June 2019 of which led to him sustaining further injuries and undergoing multiple surgeries.
The Applicant said that it is possible that his fall in July 2016 was the result of his first epileptic seizure as it is like it wiped his memory clean. His keys, wallet and phone were on his coffee table so he was not going anywhere or returning from somewhere, there were no indications that he had been involved in a fight or been attacked, he however has no memory of what occurred. The Applicant said that from that time he has had memory issues to the point that he said he can hardly remember what he did yesterday.
The Applicant’s memory concerns made it difficult for him to provide information in relation to the Relevant Period and to that extent Ms Watkins was able to assist the Tribunal.
It was clear to the Tribunal that the Applicant and his mother share a special bond, with him referring to her as his “best friend” and her displaying what can only be described as the tenderness of a mothers unconditional love.
In relation to the Applicant’s conditions the Applicant and Ms Watkins told the Tribunal that:
·He had engaged with rehab twice in relation to his alcohol use however could not remember when that was.
·He has had anxiety for a long time and it had been treated with Lexapro. The Lexapro is effective in managing his anxiety. Since 2019 he had engaged with clinical psychologists and treatment for his mental health concerns.
·He had his most recent appointment with an ophthalmologist last week. Prior to his fall he had perfect eyesight but now he needs glasses, experiences blurred and double vision. He has had multiple operations in relation to his eyes since his fall.
·He did not during the Relevant Period or now use a walking aid. He is able to walk but does things in small bursts, he does not think he can stand up for 10 minutes however can go to the kitchen and come back and sit down. They go on small walks together of around 5 minutes and the Applicant leans on Ms Watkins when he needs to. Most of the time through the Applicant said it is doable.
·It is amazing what you can get use to when everything changes.
·When he has a seizure, his speech goes out the window but most of the time it is fine.
·It is as if another door to his brain has been opened, so when he looks at a tree he does not just see a tree and not give it another thought rather he thinks about how it started out and grew and he feels he over analyses everything.
·Initially he was trialled on Epilim for his epileptic seizures however this medication took him to dark places and made him have crazy thoughts so he stopped talking it and told Dr Hopgood he would prefer to just deal with the seizures. He was then prescribed Dilantin, which he confirmed was the same as phenytoin. The Dilantin does not cause him any side effects and slows down his seizures, he said he never misses taking his medication now and other than perhaps missing it a couple of time he had always taken it religiously. They now have the dosage of Dilantin right after trying different morning and night combinations.
·Just prior to the fall he had received news that Ms Watkins was unwell which was very distressing for him.
·When he moved back to the Gold Coast he lived with his Grandmother who he cared for until she passed away in 2019. They had a very close relationship.
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
It is important to keep in mind that the Tribunal is limited to considering the Applicant’s conditions during the Relevant Period. In this case the Relevant Period is between
12 June 2018 and 11 September 2018. This limitation relates to the diagnosis of the conditions, progress of treatment and how the conditions impacted upon the Applicant at that time.
From the outset the Tribunal notes the Applicant’s views in relation to the mechanics of the legislative requirements relating to the granting of DSP and appreciates his understanding that the Tribunal is however bound to applying the law in a situation where there are no discretionary powers to step outside of the requirements as prescribed.
The Tribunal notes that there is a significant amount of medical evidence before it that relates both to the Relevant Period and beyond. The evidence in relation to referrals for treatment, treatment and relating medical certificates and reports that are beyond the Relevant Period offer limited assistance in relation to supporting the Applicant’s 2018 Claim for DSP. The assessment of eligibility for DSP is a point in time assessment, as seen in the Applicant’s case where he was found not to be eligible for DSP at a particular time, however after further diagnosis, treatment and stabilisation of his conditions he was found to be eligible at a later date. As such unless evidence refers to the Relevant Period and provides reference to the treatment and stability and resulting functional impact of the conditions it offers little weight.
Having considered the material before it as a whole the Tribunal formed the view that this is a case where the Applicant made a claim for DSP because he is dealing with a number of ongoing medical conditions, was unable to undertake work and felt that he had little hope of ever doing so again, however the claim was made too early. The Applicant had not during the Relevant Period fully engaged in all recommended or reasonable treatment. The Tribunal notes that the evidence indicates that such engagement occurred after major incidents that occurred in December 2018 and June 2019.
The Tribunal accepts that during the Relevant Period the Applicant was dealing with a number of medical conditions while continuing to adapt to how his life had changed after the fall that occurred in July 2016. The Tribunal accepts the opinion provided by the HPAU in relation to the status of the Applicant’s conditions for the purposes of the Relevant Period. Consequently, for the reasons set out below the Tribunal finds that the Applicant’s impairments did not attract 20 impairment points under the Impairment Tables during the Relevant Period and as such he did not meet the requirements of section 94(1)(b) of the Act.
There is no evidence before the Tribunal that the Applicant’s depression and anxiety had been diagnosed by a psychiatrist or clinical psychologist during the Relevant Period, as such although they are long standing conditions, they cannot be assigned an impairment rating on Table 5 of the Impairment Tables. Further the evidence before the Tribunal provides that the Applicant despite numerous recommendations did not want to engage in treatment for these conditions during the Relevant Period. The Tribunal accepts that Applicant was managing these conditions with medication.
The Tribunal accepts the Applicant’s alcohol use disorder condition was a long standing condition that was fully diagnosed at the Relevant Period. Based on the evidence before it the Tribunal finds that this condition was not fully treated and fully stabilised during the Relevant Period and therefore could not be assigned an impairment rating under the Impairment Tables.

The HPAU has grouped the Applicant’s traumatic brain injury together with the resulting sequela conditions. The Respondent contended that if the Tribunal were to find the Applicant’s traumatic brain injury to be fully diagnosed, fully treated and fully stabilised during the Relevant Period that it cannot be assigned an impairment rating under the Impairment Tables. The Respondent contends that:[67]
… the symptoms of the Applicant’s traumatic brain injury overlap with the symptoms of the Applicant’s other conditions (namely his psychological condition, alcohol dependence, epilepsy and visual problems), and that these other conditions were not FDTS during the qualification period.
The Secretary notes that subsection 6(3) of the Rules provide that an impairment rating can only be assigned if the condition causing the impairment is ‘permanent’, that is, the condition is FDTS.
The Secretary also notes that subsection 10(5) of the Rules provides that where two or more conditions cause a common or combined impairment, as single rating should be assigned in relation to that common or combined impairment under a single Table. Subsection 10(6) of the Rules provides that 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.
[67] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 70-71.
The Respondent relied upon the report of Dr Torbey dated 18 October 2017 and contended that the Applicants traumatic brain injury was not fully treated and fully stabilised during the Relevant Period and that no impairment rating can be assigned. The Respondent further contended that in the alternative that if the Applicant’s traumatic brain injury was considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period it cannot be assigned an impairment rating due to the overlapping symptoms of this condition and the Applicant’s other non-fully diagnosed, fully treated and fully stabilised conditions.[68]
[68] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 12, paragraphs 75-76.
The Tribunal prefers the view of the HPAU and accepts that the Applicant’s traumatic brain injury was fully diagnosed, fully treated and fully stabilised at the Relevant Period and that it in of itself caused sequela conditions. The Applicant’s traumatic brain injury occurred almost 2 years prior to the 2018 Claim for DSP and was unlikely of itself to improve. The Tribunal considers that further treatment in this regard is more likely to relate to the resulting conditions and to that extent agrees with the contentions of the Respondent that these conditions have an interdependency and overlapping symptoms and as such the Applicant’s traumatic brain injury cannot be assigned an impairment rating in the absence of at least his depression, anxiety and other psychological concerns being fully diagnosed, fully treated and fully stabilised.
The Tribunal accepts that the Applicant’s cognitive issues were fully diagnosed during the Relevant Period, relying on the reports provided by Dr Torbey. The Tribunal finds that this condition was not fully treated and fully stabilised during the Relevant Period as Dr Torbey makes a correlation between the Applicant’s cognitive deficits, alcohol use disorder, depression and other mental health issues and would benefit from further assessment by a psychiatrist or clinical psychologist.
The Tribunal agrees with the HPAU opinion that the Applicant’s diplopia condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period, however in the absence of supporting evidence from an ophthalmologist an impairment rating cannot be assigned under Table 12 of the Impairment Tables. The evidence is clear that the Applicant was in the process of being referred to an ophthalmologist however no such review was undertaken during the Relevant Period.
The Tribunal accepts that the Applicant’s cerebellar gait condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and while impacting upon his mobility did not during the Relevant Period attract an impairment rating higher than zero on Table 3 of the Impairment Tables. At Hearing the Applicant provided evidence that he did not use a walking aid however was unable to stand for more than 10 minutes during the Relevant Period. While the Tribunal has no reason to doubt the Applicant’s evidence the Introduction to Table 3 of the Impairment Tables requires that there must be corroborating medical evidence in order for an impairment rating to be assigned. The Tribunal does not have any such evidence before it.
Based on the evidence provided by the Applicant at Hearing and the opinion of the HPAU the Tribunal finds that the Applicant’s speech condition cannot be assigned an impairment rating under the Impairment Tables.
The Tribunal accepts that the Applicant’s epilepsy condition was fully diagnosed during the Relevant Period however based on the medical evidence before the Tribunal finds that it was not fully treated and fully stabilised. The evidence provided that the Applicant had engaged with a neurologist during the Relevant Period, with follow up outside of the Relevant Period. His medication was being monitored and increased as required both during and after the Relevant Period. Therefore, this condition cannot be assigned an impairment rating under the Impairment Tables.
The Tribunal acknowledges the difficulties that have been faced by the Applicant since his fall in July 2016 and in no way doubts the functional impacts the resulting conditions together with his pre-existing conditions had during the Relevant Period. However, based on the evidence before it, the Tribunal finds that the Applicant’s conditions could either not be assigned an impairment rating or an impairment rating above zero during the Relevant Period. It is clear that further medical episodes have occurred since the date the Applicant made his 2018 Claim for DSP, he has engaged with further treatment and as a consequence a further claim made some 16 months after his 2018 Claim for DSP was granted.
Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?
As the Tribunal has 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.
The Tribunal does however note that the Applicant had completed a program of support prior to making his 2018 Claim for DSP[69] and that the medical evidence before the Tribunal indicates that the Applicant met the criteria of section 94(2) of the Act and had a continuing inability to work.
[69] Exhibit 3, Secretary’s Statement of Facts & Contentions, Attachment B – POS Calculation.
CONCLUSION
The Tribunal acknowledges that the Applicant’s life completely changed in a blink of an eye on 29 July 2016. The Applicant’s quality of life and sense of self was materially altered. The Tribunal accepts that as a result of the fall in July 2016 the Applicant was left to deal with numerous medical conditions, a large number of tests, surgeries, doctor and specialist consultations. In considering and applying the medical evidence before it to the legislative requirements, the Tribunal finds that the Applicant’s conditions, either due to where he was up to in his treatment progress or because of a lack of the required corroborating medical evidence did not during the Relevant Period attract 20 points or more under the Impairment Tables.
Based on the evidence before it, the Tribunals find that during the Relevant Period:
(a)the Applicant had impairments for the purposes of section 94(1)(a) of the Act; and
(b)those impairments did not attract 20 impairment points under the Impairment Tables, consequently the requirements of section 94(1)(b) of the Act were not met.
Accordingly, the decision under review is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.....................[SGD]...................................................
Dated: 2 September 2020

Date of Hearing: 13 August 2020

Applicant: By telephone

Solicitors for the Respondent:
Ms Gillian Gehrke

Services Australia

[2020] AATA 3372

2 September 2020

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