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

English and Secretary, Department of Social Services (Social services second review) [2019] AATA 3270 (5 September 2019)
Division:GENERAL DIVISION
File Number:2018/6738
Re:Heidi English
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:5 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
Dragojlovic and Director-General of Social Security [1984] FCA 6
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Jansen [2008] FCAFC 48
REASONS FOR DECISION
Member D Mitchell
5 September 2019
INTRODUCTION

On 26 April 2018, Ms Heidi English (the Applicant) lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T35, pages 114-148, DSP claim form.
The claim was rejected on 22 May 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 17 July 2018.[3]
[2] Exhibit 1, T Documents, T37, pages 152-153, Letter: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T43, pages 165-170, 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 1 November 2018.[4]
[4] Exhibit 1, T Documents, T2, pages 5-13, 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 13 November 2018.[5]
[5] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 18 July 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]
·Neck injury – chronic musculo-ligamentous to the cervical spine
·Constant headache
·Neck and back pain
·Shoulder pain
·Depression and anxiety
[6] Exhibit 1, T Documents, T35, pages 114-148, DSP claim form.
[7] Exhibit 1, T Documents, T35, page 139, DSP claim form.
On 31 May 2018, the Applicant attended an in-person Employment Service Assessment (ESA) with a Rehabilitation Counsellor.[8] The Assessor provided a Report and, based on the available medical evidence, formed the view that with intervention the Applicant had a capacity to work between 15-22 hours per week within 2 years in light, less skilled work.[9]
[8] Exhibit 1, T Documents, T38, page 154, ESA Report.
[9] Exhibit 1, T Documents, T38, pages 154-159, ESA Report.
On 6 July 2018, a DSP Medical Assessment Recommendation was completed by an Assessor, whose professional discipline is listed as Exercise Physiologist.[10] The Assessor recommended:[11]
·The Applicant’s musculo-ligamentous strain of the cervical spine was not fully treated or fully stabilised as there was limited evidence of past treatment and further pending treatment.
·The Applicant’s generalised anxiety disorder was not fully treated or fully stabilised as there were plans for further treatment and an indication by her phycologist, Ms Tina Laird that improvement may occur with further treatment.
[10] Exhibit 1, T Documents, T42, pages 163-164, DSP Medical Assessment Recommendation.
[11] Exhibit 1, T Documents, T42, page 164, DSP Medical Assessment Recommendation.
On 22 May 2018, the Applicant’s claim for DSP was rejected on the basis that she did not have an impairment rating of 20 points or more.[12]
[12] Exhibit 1, T Documents, T37, pages 152-153, Letter: Rejection of DSP claim.
The Applicant sought review of this decision. On 17 July 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[13]
·Your conditions of chronic musculo-ligamentous strain to cervical spine, post-traumatic headache and major depression are not accepted as being permanent as they have not been fully treated and stabilised.
·Your total impairment rating is therefore nil points.
·The decision to reject your claim for Disability Support Pension is correct.
[13] Exhibit 1, T Documents, T43, pages 165-170, ARO Decision and Notes.
On 27 July 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[14] On 1 November 2018, the SSCSD affirmed the decision under review.[15]
[14] Exhibit 1, T Documents, T44, pages 171-172, Application to the SSCSD.
[15] Exhibit 1, T Documents, T2, pages 5-13, 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;[16]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[17] and
3.Does the Applicant have a continuing inability to work?[18]
[16] Section 94(1)(a) of the Act.
[17] Section 94(1)(b) of the Act.
[18] 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 do, not on the basis of what the person chooses to do or what others do for them.[19] 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.[20] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[21]
[19] Section 6(1) of the Determination.
[20] Section 6(2) of the Determination.
[21] 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.[22]
[22] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[23]
(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.
[23] 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.[24]
[24] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[25]
(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.
[25] 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.[26]
[26] 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.[27] 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.[28] 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.[29]
[27] Section 10 of the Determination.
[28] Sections 10(3) and (4) of the Determination.
[29] 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.[30]
[30] 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.[31]
[31] 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.[32]
[32] 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.[33]
[33] 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 26 April 2018, being the date the Applicant lodged her claim for DSP, and ending 13 weeks later on 26 July 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[34] and the Respondent considers the Applicant’s
impairments include musculo-ligamentous strain of the cervical spine,[35] mental health[36] and shoulder conditions.[37]
[34] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 6, paragraph 4.18.
[35] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 6-9, paragraphs 4.19-4.29.
[36] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 9-11, paragraphs 4.30-4.35.
[37] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 11, paragraphs 4.36-4.38.
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 she was asked and was forthcoming in providing her evidence. I accept that the Applicant suffers impairments and has had a particularly difficult time since losing her mother and being involved in two motor vehicle accidents.
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.[38] 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.[39] 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.[40] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[41]
[38] Section 6(3) of the Determination.
[39] Section 6(4) of the Determination.
[40] Section 6(2) of the Determination.
[41] Section 8(1) of the Determination.
Mental Health Condition
The Respondent accepts that the Applicant’s mental health condition was fully diagnosed, however contends that it was not fully treated and fully stabilised during the Relevant Period.[42]
[42] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 9-11, paragraphs 4.30-4.35.
At the Hearing, the Applicant told the Tribunal that she had not intended to include her mental health condition in her claim for DSP as she believes she is entitled to 20 impairment points for her neck injury. She told the Tribunal she agrees that her mental health condition cannot be considered fully treated and stabilised during the Relevant Period.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, while I am satisfied that the Applicant’s mental health condition was fully diagnosed, I am not satisfied that the condition was fully treated and fully stabilised during the Relevant Period. Accordingly, the Applicant’s mental health condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
Shoulder Condition
The Respondent contends that the Applicants shoulder condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period.[43]
[43] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 11, paragraphs 4.36-4.38.
At the Hearing, the Applicant told the Tribunal that her shoulder condition was not part of her original claim for DSP and that she had not had medical intervention for the condition as it was secondary to her neck condition. She told the Tribunal she agrees that her shoulder condition cannot be considered fully diagnosed, fully treated and fully stabilised at the Relevant Period.
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 shoulder condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, the Applicant’s shoulder condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
Neck Condition
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from a neck condition which was fully diagnosed during the Relevant Period. This point is not in contention.[44]
[44] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 6, paragraph 4.19.
The Applicant contends that her neck condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and should be assigned 20 points under the Impairment Tables.[45] At the Hearing, the Applicant told the Tribunal:
[45] Exhibit 4, Applicant’s Submission dated 3 May 2019.
·Her neck condition causes the most pain and causes her to have an inability to perform day-to-day activities.
·She relies on the report of Dr Don Todman, Neurologist, dated 19 May 2016, which she contends states that her neck condition is stabilised.
·Her General Practitioner says her injury is fully diagnosed, fully treated and fully stabilised.
·Ongoing management of her neck condition is pain management and rest. Her husband does the housework – the vacuuming, dusting, cleaning the bathroom and making the bed because she cannot do these things.
·Sitting or standing for more than 10 minutes is painful.
·She takes pain medication when her neck freezes, such as Endone.
·She had a second car accident on 24 July 2018 which has aggravated her previous injury, pinching a nerve on the right side.
·She has not been to a pain management clinic, because her General Practitioner did not think it would help.
·She attended physiotherapy in 2016, which was paid for by the insurance company and once they ceased paying for the treatment she could not afford to continue.
·It costs her $100 for a return ticket on the barge to go to appointments.
·She saw Dr Louise McCormack, Rheumatologist, in 2016.
·She can travel in the car for 30 minutes, but only when she has to. She will take painkillers beforehand, otherwise the pain afterwards is unbearable.
·She can wash her hair, but without force. She cannot put her hair up or hang clothes on the line.
·She can turn her head, or bend her neck without moving her trunk but only slightly when she drives. Most of the time she has to turn from the waist to look over her shoulder.
·She can bend forward to pick up a light object from a desk or table.
·She cannot remain seated for at least 10 minutes, as she has to keep shifting to move her neck.
·She did not have the recommended nerve root block, because she did not want to do it. She relies on Dr Todman’s advice that surgery is a last resort.
·There is no guarantee that a nerve root block would help. She referred to a 2016 report that outlines that the treatment is not safe or efficient for neck injuries.[46]
·She did not have the recommended Neuro medicine scan as she did not want the dye that is required for the test as she understands it to be radioactive and goes into the blood stream. She is concerned, as there is a history of cancer in her family.
·She could possibly study online from home. She would like to hope that she could move her neck more and get back into the workforce.
·Since July 2018, she has re-engaged with physiotherapy and acupuncture because of the second accident.
[46] It is noted that the report that the Applicant referred to was not before the Tribunal. The Applicant was provided with 2 weeks post Hearing to provide the report.

On cross-examination, the Applicant told the Tribunal:
·The first injury to her neck was due to a motor vehicle accident on 25 June 2015.
·She agreed that she was first assessed by Dr McCormack who was a Rheumatologist in December 2015. The medication made her stomach sick, so she used Endone.
·That she confirmed that Dr McCormack recommended she take Lyrica. However, she did not want to take Lyrica as she researched it and found out that it can trigger seizures. She did not tell Dr McCormack her concerns and she did not get the prescriptions for Lyrica filled.
·She did not remember Dr Saman Perera advising her on 18 February 2016 that she should take Lyrica. She accepts she did not get a prescription for Lyrica filled.
·She cannot remember telling Dr Todman that she had tried Lyrica.
·She confirmed that Dr Perera referred her for an MRI, to a spine surgeon and pain specialist at the request from Centrelink Cleveland. He did not feel it was necessary, but did it at her request.
·When she was taken to the referral note dated February 2016, being before her claim for DSP, she said she did not know if the note was accurate as Dr Perera said he had not referred her.
·She confirmed she had not seen a pain specialist or been to a pain clinic.
·When referred to the letter from the Persistent Pain Outpatients Department of the Princess Alexandra Hospital dated 18 June 2018 noting that her referral had been received and that she was triaged to category 3, she said that is the one that Dr Perera said was not his idea, but he did it because she asked.
·When asked about Dr McCormack’s recommendation in 2016 about seeing a pain specialist, she said she could not remember.
·She did not know that there was a reason not to attend a pain management clinic; however Dr Perera said it would not help.
·When referred to Dr Perera’s consultation note dated 21 October 2016 which provided ‘already seen by neurosurgeon, surgeon offered to have injections, then surgery’ that the neurosurgeon had recommended nerve root block and if that worked then surgery would follow. She wants to avoid surgery and will try physiotherapy first.
·When asked about the evidence before the Tribunal only referring to physiotherapy and acupuncture after the second accident, that this was incorrect, she had also had six or eight sessions of physiotherapy after her first accident. She had not had acupuncture as the insurance company would not pay for it.
·She did not see the Neurosurgeon again. She had an MRI but she wanted to discuss other treatments with the Neurosurgeon but did not get through.
·She was referred to Dr Chong because she wanted a second opinion, but she could not afford to see him.
·She did not have normal neck range of movement since her first accident.
·She could not get a referral to the public system at the time. She had been referred to an orthopaedic surgeon on 2 June 2018, but that was at the request of Centrelink. She did not attend the appointment.
·When taken through the reports provided by Dr Perera and his clinical notes that she agrees that Dr Perera made an assessment on 23 February 2018 of her neck function and that she did not ask him to change his report. She explained what the Legal Aid lawyer had told her in relation to how the report should refer to the Impairment Tables. She disagreed that Dr Perera had already made reference to the Impairment Tables when he wrote that her functional impairment was mild to moderate. She disagreed that this would then relate to 5 points under Table 4.
·When taken to Dr Perera’s note made on 15 March 2018 that stated that she had asked him to rewrite the report, she did not accept that she had said that. The Applicant said she just took the Legal Aid ‘stuff’. She confirmed that after her application was refused by the SSCSD on 20 March 2018, Dr Perera provided an additional report dated 25 March 2018 in response to her request for a further report. She could not remember whether she attended an appointment with Dr Perera on 25 March 2018, although Dr Perera’s notes indicated she did not.
·There had not been any significant events between February 2018 and March 2018, rather it: ‘it has been what is has always been. I can’t do what I use to be able to.’
·That she confirmed that she only saw Dr Perera once during the Relevant Period and that was after her second motor vehicle accident.
·She accepted that Dr Perera had written in his clinical notes for her appointment on 25 July 2018 that she had mild but moderate pain.
·She had an MRI on 8 February 2019. She had not seen any other specialist until the physio, as she was going through an insurance claim and needed them to accept liability. Her first appointment with the physiotherapist was a few weeks prior to this Hearing.
·That she confirmed that she does not have a lumbar spine condition diagnosed that would affect her sitting tolerance, but she knows there is pain and believes it is from her cervical spine.
·She had shoulder pain in the Relevant Period. She does not believe that her shoulder pain affects her ability to reach overhead, lift objects or hang washing on the line as the pain is in her left shoulder.
The Respondent contends that the Applicant’s neck condition was not fully treated and fully stabilised during the Relevant Period and rely upon the following:[47]
(a)On 9 December 2015, Dr Louise McCormack recommended that the Applicant start Lyrica at 75mg a day to help her with symptoms (ST3, p143). On 18 February 2016, Dr Perera advised the Applicant to commence Lyrica at 25mg and gradually increase the dose (ST3, p192). The Applicant was re-referred to Dr McCormack on 6 January 2017 which noted that the Applicant was still taking Lyrica (ST3, p65).
(b)Around 21 October 2016, the Applicant’s treating neurosurgeon recommended that the Applicant have steroid injections, then surgery (ST3, p198). The Applicant reported to Dr Perera that she rejected the plan, wanting to have “physio, acupuncture and see”. The Applicant reported on 2 June 2018 that she “decided not to have it” due to “fear of possible complications” (ST3, p206).
(c)Following the neurosurgery appointment, the Applicant was referred to Dr Ian Cheung, orthopaedic surgeon on 21 June 2017 (ST3, p202). The Applicant reported to the ESA that she had not seen an orthopaedic surgeon (T38, p155). The Applicant was re-referred to the orthopaedics department at the Princess Alexandra Hospital (PAH) on 2 June 2018 (ST3, p109).
(d)Although the Applicant was referred to a pain specialist on 18 February 2016 (ST3, p192), the Applicant reported to the ESA that she had not participated in a pain management program or seen a pain specialist (T38, p155). On 18 June 2018, Dr Perera referred the Applicant to the PAH Persistent Pain Management Clinic (T39, p160).
(e)The Applicant was involved in another motor vehicle accident on 24 July 2018 with “mild to moderate pain” which caused Dr Perera to refer the Applicant for a further MRI (ST3, p213).
[47] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 6-7, paragraph 4.19.
The Respondent contends that the Applicant had not engaged with reasonable treatment in relation to her neck condition during the Relevant Period as she had not engaged appropriately with recommended pharmacological treatment, specialist review, a pain management clinic or steroid injections.[48]
[48] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 6-8, paragraphs 4.19-4.25.
In the evidence before the Tribunal, there are numerous referrals and references to pharmacological treatment, specialist review, pain management clinics and steroid injections. There has been evidence relating to the Applicant’s beliefs and concerns in relation to the safety and/or efficacy of these treatment modalities which have led to her not engaging with the recommended treatment options.
The Determination sets out that 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.[49]
[49] Section 6(7) of the Determination.
At the Hearing, the Applicant mentioned the research she had done in relation to the nerve root injections (nerve root block or steroid injections), nuclear medicine and to specific articles upon which she was relying. The Applicant was provided an opportunity to provide this further information. On 24 July 2019, she provided a brief submission and links to various articles.[50]
[50] Applicant’s Submissions dated 24 July 2019.
In the Applicant’s submission dated 24 July 2019, she provided:[51]
Please find attached links to my research on the CT guided Cervical Nerve Root Block and risks associated with Nuclear Medicine.
I chose not to have either of these procedures as I did not feel confident with the outcome. One with the CT guided Cervical Nerve Root Block was that it also as quoted by Dr Richard Laherty of the Greenslopes Specialist Centre that “it may or may not work”, and if it did that it would only be temporary.
In the article from the Anesthesia Patient Safety Foundation, it states in point 2 under the Direct Spinal Cord Injury heading that epidural needle placement should be avoided above C6-C7, the injury to my neck is in the C4 to C6 area of my spine, being above C6.
I was also told on the day of my left shoulder MRI that after the Nuclear Medicine Bone Scan that I should not be around young children or crowded areas for the next 24hrs, but not to worry because I would excrete the radioactive dye from my body via my urine. This is what caused me to do further research into both procedures.
I have a history of cancer in my family on my birth mothers side so avoiding anything that could possibly trigger DNA mutation to lead to cancer is extremely important to myself.
My original GP, Dr Kevin Naicker and my physiotherapist, Stuart Stevenson, who specialises in the Mackenzie method of treating cervical spine injuries have both stated that they believe surgery is not necessary for my injury.
It is from these opinions and my own research that I made an informed decision to not go ahead with either procedure.
[51] Applicant’s Submissions dated 24 July 2019.
On 15 August 2019, the Respondent provided further submissions in reply.[52] The Respondent’s contentions remained unchanged. The Respondent maintained that the Applicant’s neck condition was not fully treated or fully stabilised as the Applicant had not undertaken the recommended referrals to a rheumatologist, orthopaedic surgeon and pain specialist during the Relevant Period. The Respondent stated that the Applicant had not engaged in appropriate pharmacological treatment or other reasonable treatment.[53]
[52] Secretary’s Further Submissions in Reply dated 15 August 2019.
[53] Secretary’s Further Submissions in Reply dated 15 August 2019, page 5, paragraph 22.
In response to the further information provided by the Applicant, the Respondent submitted:
·‘CT scans or steroid injections are diagnostic tests and treatment, respectively, that are regularly performed and carry a low risk to persons.’ This position was supported by the article submitted by the Applicant, ‘The Hidden Dangers of Medical Scans’ which provided that ’the actual danger to an individual receiving a [CT] scan (or even two or three) is relatively low’.[54]
[54] Secretary’s Further Submissions in Reply dated 15 August 2019, page 1, paragraph 4.
·In recommending that the Applicant undertake steroid injections it is highly likely that Dr Richard Laherty, treating Neurosurgeon, considered the benefits to the Applicant in having this procedure outweighed the minimal risks involved.[55] The Applicant did not discuss her concerns with Dr Laherty and had she, either her concerns would have been clarified or an alternative recommendation for treatment may have been proposed.[56]
[55] Secretary’s Further Submissions in Reply dated 15 August 2019, page 2, paragraph 5.
[56] Secretary’s Further Submissions in Reply dated 15 August 2019, page 2, paragraph 6.
·Relying on the decisions of Dragojlovic and Director-General of Social Security [1984] FCA 6 and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Jansen [2008] FCAFC 48 the Applicant’s own belief in the efficacy or non-efficacy or recommended treatment does not amount to a “medical or other compelling reason to refuse treatment”.[57]
[57] Secretary’s Further Submissions in Reply dated 15 August 2019, pages 2-3, paragraphs 7-10.
·Even if there was a compelling reason for the Applicant not to have undertaken the steroid injections, there were other recommendations for treatment which the Applicant has not undertaken.[58] Including:[59]
[58] Secretary’s Further Submissions in Reply dated 15 August 2019, page 3, paragraphs 11-12.
[59] Secretary’s Further Submissions in Reply dated 15 August 2019, page 3, paragraph 13.
(a)Although Lyrica was recommended by her treating rheumatologist, the Applicant did not want to take Lyrica because “it could cause seizures”. Further, despite being given a script for Lyrica by Dr Perera, the Applicant agreed that she did not fill the prescription.
(b)The Applicant had never participated in a pain management program.
(c)The Applicant had not seen a pain specialist.
(d)The Applicant did not see Dr Cheung, because she could not afford to do so.
·There is no medical or compelling reason for the Applicant’s refusal to comply with the recommended treatment with Lyrica, as the Therapeutic Goods Administration factsheet in relation to Lyrica says it is used to treat neuropathic pain and has pain relieving effects. The Factsheet provides that Lyrica belongs to a group of medicines called anticonvulsants which control brain chemicals which send signals to nerves so that seizures do not happen. It also provides that symptoms of an overdose may include seizures, amongst other symptoms.[60]
·In relation to a pain management program or a pain specialist, it has been recognised that “of all approaches to the treatment of chronic pain, none has stronger evidence basis for efficacy, cost-effectiveness, and lack of iatrogenic complications than interdisciplinary care … typical treatment provided includes three common elements: (1) medication management, (2) graded physical exercise, and (3) cognitive and behavioural techniques for pain and stress management.” In relation to the cost of such a program, the Applicant was referred to the Princess Alexandra Hospital’s Persistent Pain Clinic through the public health system.[61]
·The Applicant could have accessed a review by an orthopaedic specialist through the public system.[62]
·There is no corroborating evidence that Dr Kevin Naicker or Mr Stuart Stevenson held the opinion surgery was not an option for the Applicant.[63]
[60] Secretary’s Further Submissions in Reply dated 15 August 2019, page 4, paragraphs 14-16.
[61] Secretary’s Further Submissions in Reply dated 15 August 2019, page 4, paragraphs 17-19.
[62] Secretary’s Further Submissions in Reply dated 15 August 2019, page 5, paragraph 20.
[63] Secretary’s Further Submissions in Reply dated 15 August 2019, page 5, paragraph 21.
While I acknowledge the concerns of the Applicant in relation to treatment of her neck condition, there is no evidence before the Tribunal that there is a medical or other compelling reason to refuse the recommended treatment. In particular, the Applicant has not expressed her concerns to the relevant specialists and has not engaged in reasonable treatment that is available as part of the public health care system. Due to the lack of treatment, together with the exacerbation of the Applicant’s neck condition by the second motor vehicle accident that occurred on 24 July 2018, I am not satisfied that the condition was fully treated and fully stabilised during the Relevant Period.
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 neck condition was fully treated and fully stabilised during the Relevant Period. Accordingly, the Applicant’s neck 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 neck condition was fully diagnosed, however was not 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 mental health condition was fully diagnosed, however was not 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 shoulder 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 impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.............................[SGD]............................
Associate
Dated: 5 September 2019

Date of hearing: 18 July 2019

Applicant: By phone

Advocate for the Respondent: Ms Jacky Vetter

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 3270

5 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	18 July 2019
Applicant:	By phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers