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

Frumar and Secretary, Department of Social Services (Social services second review) [2020] AATA 544 (13 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7350
Re:Daniel Frumar
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Chris Puplick AM
Date:13 March 2020
Place:Sydney

The decision under review is affirmed.
..........................[SGD]..............................................
Senior Member Chris Puplick AM
CATCHWORDS
SOCIAL SECURITY – disability support pension – fibromyalgia – chronic fatigue syndrome – migraines – irritable bowel syndrome – whether impairments are 20 points or more under the Impairment Tables – decision affirmed
LEGISLATION
Social Security Act1991 (Cth) s 94
Social Security (Administration Act) 1999 (Cth) (Administration Act) s 42
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Shi v Migration Agents Registration Authority [2008] HCA 31
Summers and Secretary, Department of Social Services [2014] AATA 165
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Chris Puplick AM
13 March 2020

This is an application to the Tribunal to review a decision made by the Social Security and Child Support Division of this Tribunal (AAT1) on 1 November 2019.
The Applicant is Mr Daniel Frumar and in these proceedings the Respondent is the Secretary, Department of Social Services (the Department).
History of proceedings
On 23 September 2019 the Applicant lodged an application for the disability support pension (DSP). That claim was assessed by the Respondent and on 5 October 2019 was rejected. That rejection decision was reviewed by an authorised review officer (ARO) of the Department who affirmed it on 17 October 2019.
The Applicant sought to have that decision reviewed by the AAT1 which on 1 November 2019 affirmed it.[1] The Applicant then applied, on 12 November 2019, to have the decision of the AAT1 reviewed by this Tribunal. The hearing of that application took place on 6 March 2020.
[1] Section 37 Tribunal Documents at [5]-[9]. It is unusual that a hearing of an appeal against a departmental decision should take place in the AAT1 during the actual qualifying period (see below) of the determination.
Before considering the matters raised in the application it is necessary to set out in some detail the legislative scheme and operational requirements related to the DSP.
The disability support pension scheme
In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Social Security Act1991 (Cth) (the Act). Section 94 has three distinct limbs:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;…
In essence, these requirements or criteria amount to this:
·the person has a physical, intellectual or psychiatric condition;
·the person’s medical condition(s) rates 20 points or more on the Impairment Tables (which are specific criteria, set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables) made under section 26 of the Act, established to assess the level of impairment). Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;
·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system;
·the person has turned 16; and
·the person is an eligible citizen or qualifying resident.
Failure to meet any one of these requirements is fatal to an applicant’s claim for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These important terms are defined in the Impairment Tables[2] as follows:
[2] Impairment Tables, section 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.
A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
Generally the Tribunal is required to make its findings on the evidence which is before it at the time of its final decision-making.[3] This is not the case when considering DSP applications. In these cases the Tribunal must have regard to the applicant’s status at the time when they made the application and in the 13 week period thereafter.[4]
[3] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [page 11]; Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
[4] Social Security (Administration Act) 1999 (Cth) (Administration Act) section 42 and Schedule 2.
In this instance that means a period from 23 September 2019 to 23 December 2019 which is referred to as the “qualifying period”.
The Applicant’s impairments
The Applicant claims, and the Respondent accepts, that he had the following impairments during the qualifying period:
·fibromyalgia with associated chronic fatigue syndrome (CFS);
·anxiety and depression;
·migraines; and
·irritable bowel syndrome (IBS).
The Respondent’s position
It is the Respondent’s contention that, during the qualifying period, the conditions of fibromyalgia (and CFS) and anxiety may have been fully diagnosed but neither of them was fully stabilised and fully treated. In relation to the conditions of migraines and IBS the Respondent contends that neither was fully diagnosed, as a consequence of which they could not have been fully treated and stabilised. Hence the Applicant cannot be assessed on the Impairment Tables in respect of any of them. In turn this leads to the Applicant not having the necessary 20 points to further consider their eligibility for DSP.
The Respondent thus posits that the Applicant does not meet the requirements of section 94(1)(b) of the Act.
In addition, the Respondent asserts that the Applicant did not have a continuing inability to work (CITW). This is because he did not satisfy the POS requirements (section 94(2)(aa) of the Act) which required that, as of 23 September 2019 (the date of the original claim) the Applicant had not participated in a POS within the three year period preceding that date.
The Respondent thus posits that the Applicant does not meet the requirements of section 94(1)(c) of the Act.
The role of the Tribunal
The Tribunal is required to undertake its own independent assessment of each of the claimed conditions, as they were during the qualifying period. In undertaking such an assessment the Tribunal has regard to the evidence contained in the Tribunal Documents, the evidence presented at the hearing and the provisions of the Impairment Tables themselves. In this matter the Applicant was unrepresented and the Tribunal has taken this into account in its assessment processes.
Assessment of the impairments
The medical evidence consists primarily of reports from general practitioners, H Johnson and S Greengarten; from Dr E Jacobson, a consultant psychiatrist and from Professor N McGill, a consultant rheumatologist. In addition there are a collection of PBS (Pharmaceutical Benefits Scheme) and MBS (Medical Benefits Scheme) records and records produced by the South Pacific Private Hospital.
The Tribunal also has a lengthy assessment report from the Department’s Health Professional Advisory Unit (HPAU) compiled by Dr Sandra Armstrong dated 4 February 2020. This report provides extensive details of the Applicant’s medical history dating back to September 2015.[5]
[5] Respondent’s Evidence at Tab [4].
Fibromyalgia and related chronic fatigue syndrome
In order to assess the extent to which the Applicant has received treatment for fibromyalgia and its associated manifestations, it is necessary to describe the condition and the general principles of its management.
“Fibromyalgia is a common chronic pain syndrome associated with significant morbidity and societal impact…The most characteristic feature of fibromyalgia syndrome is widespread pain and tenderness, often accompanied by extreme fatigue, poor-quality sleep, cognitive dysfunction and psychological distress…
This constellation of symptoms occurs due to alterations in sensory processing pathways in the nervous system, changes collectively referred to as ‘central sensitisation’.
Patients with fibromyalgia develop excessive sensitivity, resulting in normally non-noxious stimuli being amplified and experienced as painful or unpleasant. Fibromyalgia is therefore also associated with related conditions associated with sensory amplification, including irritable bowel syndrome, chronic headache, restless leg syndrome, multiple chemical sensitivities and autonomic dysfunction.
Our understanding of the pathogenesis underlying fibromyalgia and the development of central sensitisation is evolving. Genetic susceptibility and familial associations are well recognised, and up to 50% of an individual’s risk may be attributable to genetic factors, such as polymorphisms that affect neurotransmitter function. Additional environmental and personality factors affecting responses to physical and psychological stress augment this predisposition to increased central sensitivity, and in most patients, a defined triggering event (e.g. medical illness, trauma or psychological stress) can be linked to the onset of overt fibromyalgia.”[6]
[6] Kathryn Connelly, Emma Guymer and Geoffrey Littlejohn: “Fibromyalgia – Diagnosis and management in general practice”, (August 2018) MedicineToday 19(8) at [33]; Applicant’s Evidence at [A3].
There appears to be no standard treatment for fibromyalgia:
“There is no single treatment for fibromyalgia and effective management requires a multimodal and holistic approach, considering an individual patient’s symptom profile, treatment priorities and reversible factors exacerbating disease. The aims of management are improvement in symptoms, function and quality of life. Best results occur with multidisciplinary management, which may include input from medical specialists such as a rheumatologist or pain specialist and allied health practitioners such as a psychologist or physiotherapist. The need for a co-ordinated approach and long-term support places the GP in an ideal position to build a strong therapeutic relationship and act as a central point of contact for patients with fibromyalgia.”[7]
[7] Ibid at [35], [37].
The Mayo Clinic states:
“In general, treatments for fibromyalgia include both medication and self-care. The emphasis is on minimising symptoms and improving general health. No one treatment works for all symptoms.”[8]
[8] Mayo Clinic: Search Mayo Clinic: Fibromyalgia at [1]; Applicant’s Evidence at [A3].
The Clinic recommends treatment regimens which include medications (including pain relievers, antidepressants and anti-seizure drugs); therapy (including physical and occupational therapy and counselling); home remedies (such as reduced stress, enhanced sleep, regular exercise and healthy living) and alternative remedies (including acupuncture, massage therapy and yoga/tai chi).
There is no doubt that the Applicant suffers from fibromyalgia and that he has been fully diagnosed with this condition. This is accepted by the Respondent and the details of the diagnosis are set out in its Statement of Facts and Contentions thus:
3.2 A report from Dr Salie Greengarten dated 20 August 2018 reported that Mr Frumar had fibromyalgia, had been referred to a specialist and was unable to concentrate and study.[9] In a report dated 17 June 2019, A/Prof Neil McGill (consultant rheumatologist) reported that Mr Frumar:[10]
[9] Section 37 Tribunal Documents at [111].
[10] Section 37 Tribunal Documents at [113]-[114].
(a)had experienced lower back pain and general exhaustion after running on a treadmill in February 2019 and that, since the onset of his symptoms, he had suffered with progressive fatigue;
(b)found it difficult to get out of bed and had widespread pain and tenderness with slight paraesthesia;
(c)ceased work as a mortgage broker in Melbourne three weeks prior to the report due to his symptoms, had quit smoking and no longer drank alcohol; and
(d)was able to walk on his forefeet and on his heels and had a full range of joint movement, but demonstrated widespread allodynia (central pain sensitisation).
3.3 A/Prof McGill noted that, “with the exception of fairly sudden deterioration, the history and clinical findings were typical of fibromyalgia/chronic fatigue” and that a letter from Dr Robert Lefkovits dated May 2019 queried whether the symptoms started after a holiday in Thailand in August 2018. A/Prof McGill recommended the Fatigue Clinic in the same building as his practice, and recommended a practitioner in Melbourne for Mr Frumar. A/Prof McGill did not recommend medication, but recommended a rheumatology psychiatrist in Sydney, and that Mr Frumar do “a little walking and to very slowly progress the exercise”.
3.4 Dr Harry Johnson (general practitioner) provided reports dated 10 October 2019, 14 October 2019 and 30 October 2019, which reported that Mr Frumar: [11]
(a)had seen a number of specialists in Australia and the UK to treat his fibromyalgia with chronic fatigue but “nothing had improved the situation”;
(b)was unable to perform light physical activities and required assistance to walk around shopping centres and use public transport;
(c)had global pain which impacted his ability to perform light household activities; and
(d)was unable to sustain any work related tasks for a continuous shift of at least two hours.
[11] Section 37 Tribunal Documents at [120], [127]-[128].
The question therefore becomes one of whether or not the condition of fibromyalgia is fully treated and fully stabilised.
In contending that it is not, the Respondent draws attention to a number of inconsistencies in the Applicant’s submissions which were identified by Dr Sandra Armstrong who prepared a report for the HPAU in February 2020. Dr Armstrong reported as follows:[12]
(a)She had contacted Dr Johnson on 9 January 2020, who informed her that he had begun seeing Dr Frumar in October 2019 and had seen him nine times since then, and that the references in his report to specialists seen in the UK and Australia, and to Mr Frumar’s inability to undertake light physical work, was on the basis of self-reporting.
(b)She considered that Mr Frumar’s fibromyalgia with chronic fatigue was fully diagnosed as of the qualification period on the basis of the letter from A/Prof McGill dated 17 June 2019, given the various inconsistencies with date of diagnosis in the evidence before the assessor;
(c)That, while the ARO and AAT1 decisions refer to three attendances at a fatigue clinic, the SPPH notes refer to two visits to the clinic and Mr Frumar’s MBS records do not reveal any visits to a fatigue clinic. Dr Armstrong contacted the UNSW Fatigue Clinic on 4 February 2020 and was informed that attendees are required to provide GP mental health and exercise physiologist care plans and that visits are billed to medicare with a gap of $68 if a visit with a psychologist is required.
(d)As to medication, Dr Armstrong noted that the European League against Rheumatism (EULAR) recommended that antidepressant medication and pain modulating medication could be useful in treating fibromyalgia and that, while Mr Frumar’s PBS history indicates that he had accessed such medications, he had not had an adequate trial of all of the recommended medications.
(e)Mr Frumar’s PBS record indicate that he had seen A/Prof McGill on one occasion only and that his response to any treatment programme or medications was not reviewed.
[12] Respondent’s Statement of Facts and Contentions at [3.7].
This leads the Respondent to the following conclusions:[13]
(a)While Mr Frumar’s self-reporting indicates that he may have attended a pain or fatigue clinic 2-3 times, he had not continued to attend, nor completed, the clinic. The Secretary contends that attendance at a pain clinic, particularly the Fatigue Centre (now the UNSW Fatigue Clinic) as recommended by A/Prof McGill, is reasonable treatment that Mr Frumar could undertake and that the visits are billed to Medicare with a gap of $68 per session if a psychologist is seen. Accordingly, the Secretary contends that there is no medical or other compelling reason for Mr Frumar not to undertake the treatment.
(b)There is no evidence of the outcome of acupuncture treatment or hydrotherapy, as noted by Dr Johnson in his report dated 3 December 2019, or evidence of any other treatment undertaken, such as physiotherapy; and
(c)The evidence indicates that Mr Frumar’s response to the treatment recommended, namely attendance at a fatigue clinic, physiotherapy and medication prescribed for his fibromyalgia has not been reviewed and, therefore it is unable to be ascertained whether any further reasonable treatment is unlikely to result in a significant functional improvement.
[13] Ibid at [3.8].

There are a number of other matters to take into consideration.
In January 2020 the Applicant was voluntarily admitted to the South Pacific Private Hospital in Curl Curl, NSW. His intake history records as follows:
“Daniel is a 42 year old unemployed male living with his parents. He presents with depression and anxiety, His condition is precipitated by a diagnosis of fibromyalgia approx. 18 months ago which resulted in him ceasing employment and returning back to Australia from the UK approx. 12 months ago. He reported current suicidal ideations, but has no history of attempts or self-harming behaviour. He has no legal issues and is not a smoker.
Daniel regularly referenced his fibromyalgia and the difficulty he has had in managing his physical health.
Daniel was friendly throughout assessment although flat in affect. He was overinclusive in speech and used the phrase “because of my condition…” approx. 20-30 times throughout assessment. Daniel was willing to answer all questions but had limited insight into his condition, only able to draw surface level associations between his mental and physical health. He seemed highly motivated to improve his physical health and would benefit from an inpatient admission.”[14]
[14] Supplementary Tribunal Documents at [155].
In his evidence to the Tribunal, the Applicant indicated that he had attended the St Vincent’s Hospital Clinical Genomics centre on 29 January 2020 where he agreed to and undertook a series of genetic tests.[15] The Applicant stated that these were in order to establish his degree of genetic predisposition to his condition; to allow better selection of appropriate medication; and to support the possibility of his attending the Mayo Clinic in the United States for specialist treatment there.
[15] Applicant’s Evidence at [A2].
The Applicant also indicated that he was seeking access to the prescribing of medical marijuana which, he believed, might assist with the management of both his pain and his irritable bowel syndrome as well as his primary condition.[16]
[16] Ibid at [A5].
It is evident that the Applicant is still seeking a variety of treatments to help him cope with the obvious pain and distress which his fibromyalgia causes him. It is also obvious that he has not been entirely compliant with some of the treatments which have been recommended for him in the past, nor has he made effective use of the assistance which is available through the various pain and fatigue clinics, on the basis of his reported advice to Dr Cotiga that he stopped attending “as they (the clinics) could not offer anything more”.[17] His claims of being unable to afford (financially) such access is qualified when considering the arrangements made by these clinics to assist people with financial issues and in light of the Medicare rebates.[18] Finally, he does not seem to have followed up on any of Dr Johnson’s suggestions of seeking assistance through the National Disability Insurance Scheme (NDIS).[19]
[17] Supplementary Tribunal Documents at [262].
[18] Section 37 Tribunal Documents at [9] paragraph [22] and Respondent’s Statement of Facts and Contentions at [3.8(a)].
[19] Supplementary Tribunal Documents at [260].
It must thus be accepted that the condition of fibromyalgia, while fully diagnosed, is not fully treated and stabilised in the way described and required in the Impairment Tables.
However, there appears to be a logical dilemma here. If any condition is without cure and without what might be described as a standard form of treatment(s), how can such a condition ever be fully treated and stabilised? If there is an endless possibility of treatments, none of which is ever fully effective and all of which might be tried (perhaps with no benefit), depending on the specific situation and susceptibilities of the individual patient, does this not lead to a classic “Catch-22” situation?[20]
[20] In 1961 Joseph Heller published a novel which is now regarded as something of classic: Catch 22. A Catch-22 is a paradoxical situation from which an individual cannot escape because of contradictory rules or limitations. Joseph Heller: Catch 22 (Corgi Books, London, 1970 edition) page [54].
In the event that this might be the case, and the Tribunal’s conclusion that the fibromyalgia is fully diagnosed but not fully treated and stabilised is in error, it seems prudent to consider what impairment rating the Applicant might attain in those circumstances.
This requires reference to Impairment Table 1 (Functions Requiring Physical Exertion and Stamina). The relevant descriptors, based upon the Applicant’s evidence to the Tribunal are as follows:

41.     5

42.     There is a mild functional impact on activities requiring physical exertion or stamina.

43.      (1) The person:

44.      (a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

45.      (i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

46.      (ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

47.      (b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

48.     10

49.     There is a moderate functional impact on activities requiring physical exertion or stamina.

50.      (1) The person:

51.      (a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

52.      (i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

53.      (ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

54.      (b) is able to:

55.      (i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

56.      (ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

57.     20

58.     There is a severe functional impact on activities requiring physical exertion or stamina.

59.      (1) The person:

60.      (a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

61.     (i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

62.      (ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

63.      (iii) use public transport without assistance; or

64.      (iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

65.      (b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

The Respondent sought information from the Applicant by way of cross-examination to establish the extent to which his condition of fibromyalgia impacted on his ability to undertake all or any of the tasks outlined in the Table at the 5, 10 or 20 point level.
His evidence was to the effect that he had some difficulty in walking without the use of a walking stick on some occasions, but was able to walk short distances without the assistance of another person[21] and was occasionally able to drive himself. He does not use public transport. He is able to look after his own basic physical needs in terms of dressing, grooming and hygiene. He does not undertake “heavy” domestic tasks such as cleaning or bed-making and his meals are generally prepared by his mother. He reported that he is unable to sit and work at a computer for any length of time. He was able to attend the hearings of the Tribunal without excessive difficulty and was able to remain seated throughout most of its proceedings. He is able to take his dog for walks in the evenings. While at the South Pacific Private Hospital he undertook regular beach walks.
[21] Summers and Secretary, Department of Social Services [2014] AATA 165 at [17].
The Tribunal notes the letter from Dr Johnson in which he assesses the Applicant as reaching the 20 point threshold on the Impairment Tables,[22] but is unable to agree with this assessment. The Respondent concedes that if the Applicant is to be so assessed, then a rating of no more than 5 points should be assigned.[23] Again, the Tribunal does not agree with this. In its assessment the Applicant would rate a score of ten points.
[22] Section 37 Tribunal Documents at [129].
[23] Respondent’s Statement of Facts and Contentions at [3.9].
Anxiety and depression
A report by Dr Errol Jacobson (consultant psychiatrist) dated 27 September 2019 (within the qualifying period) indicates that the Applicant had been diagnosed with clinical anxiety and depression.[24] Dr Jacobson states that he “will continue to assess (the Applicant) on a regular basis.” The Respondent’s Statement of Facts and Contentions seems to interpret this statement as being that “he (i.e. Dr Jacobson) will continue to see him on a daily basis”.[25] This is clearly not correct. In other evidence the Applicant reports that he was seeing Dr Jacobson on a “fortnightly basis since June 2019.”[26] Records show four consultations between 1 August 2019 and 23 October 2019.[27]
[24] Section 37 Tribunal Documents at [112].
[25] Respondent’s Statement of Facts and Contentions at [3.11]. Emphasis added.
[26] Section 37 Tribunal Documents at [121]. Emphasis added.
[27] Respondent’s Statement of Facts and Contentions at [3.12(b)].
Equally, there is some confusion about the treatment either prescribed for or undertaken by the Applicant. Dr Jacobson reports that the Applicant “takes the antidepressant medication Cymbalta 60 mg”[28] whereas in his PBS/MBS record there is evidence that he was prescribed Duloxetine (the brand name for Cymbalta) only once (on 10 October 2019) and that was for the 30mg preparation.[29] The Applicant himself indicates that he underwent a “medication review” which resulted in his dosage being increased in July 2019.[30] On the other hand there is further evidence from Dr L Costiga, a psychiatrist at the South Pacific Private Hospital, that the Applicant had difficulty managing a dosage of 60mg and that this was reduced to 30mg in December 2019.[31]
[28] Supplementary Tribunal Documents at [264]. Cymbalta is a brand name for Duloxetine.
[29] Respondent’s Statement of Facts and Contentions at [3.12(a)]. Supplementary Tribunal Documents at [259].
[30] Section 37Tribunal Documents at [121].
[31] Supplementary Tribunal Documents at [262].
From all of this, Dr Armstrong, in her report for HAPU concludes that she “presumes” that the Applicant “was non-compliant with Dr Jacobsen’s prescription of Duloxetine 60mg.”[32] The Tribunal would not come to the same presumption but does agree that the evidence is not suggestive of there being a stable regime of pharmacological treatment for the Applicant’s issues of anxiety and depression.
[32] Supplementary Tribunal Documents at [257].
Apart from seeing Dr Jacobson, the Applicant also saw a psychologist, Stephen Albert on seven occasions between 8 July 2019 and 29 August 2019.[33] The SFIC is in error in describing Mr Albert as “another psychologist” as Dr Jacobson is a consultant psychiatrist.[34] There is no evidence before the Tribunal in relation to any treatment that may have been provided or recommended by Mr Albert.
[33] Supplementary Tribunal Documents at [259].
[34] Respondent’s Statement of Facts and Contentions at [3.12(b)].
The Tribunal has recorded, above, the details of the Applicant’s admission to the South Pacific Private Hospital and his treatment there for his fibromyalgia. Incidental to this treatment his conditions of anxiety and depression were also addressed.
Clinical notes from the hospital reveal that the Applicant’s goals of admission were, inter alia: “to treat the anxiety and depression and address underlying trauma.”[35] The treatment plan is recorded as being: “increase Duloxetine dose back to 60mg, but attempt splitting the dose in two, 30mg BD in an attempt to better manage SE, Daniel agreeable.”[36]
[35] Supplementary Tribunal Documents at [169].
[36] Ibid at [170].
In evidence to the Tribunal the Applicant stated that he had derived “some” benefit from his time at the Private Hospital, although he expressed some serious difficulties with some of the named staff members and flatly denied some details which are contained in the hospital records. He advised that his treatment at the hospital was covered primarily by payments from the Hospital Contribution Fund (HCF) private health insurance company and that he was waiting for advice from them about the coverage available for him to return to the hospital for a further period of admission and treatment.
This clearly indicates that the Applicant is planning for further treatment to address his issues of anxiety and depression and hence these conditions cannot be defined as being “fully treated”. They are, rather, under continuing treatment. This means that they are not fully treated and fully stabilised in accordance with the requirements of the Act. They thus cannot then progress to be assessed for any rating under the Impairment Tables.
Migraines
The Tribunal has been presented with no medical evidence from any of the parties in relation to this condition hence it cannot be accepted as being fully diagnosed, fully treated or full stabilised. The Tribunal does however, recognise that headaches are a common complaint associated with fibromyalgia. Nevertheless, the Tribunal cannot assign this separate condition any points on the relevant Impairment Tables.
Irritable bowel syndrome
The Tribunal has been presented with no direct medical evidence from any of the parties in relation to this specific condition hence it cannot be accepted as being fully diagnosed, fully treated or full stabilised. It thus cannot rate any points on the Impairment Tables. The only material before the Tribunal is a colonoscopy report dated 13 February 2020 from Professor Michael J Solomon, a colorectal surgeon, which found on examination that: “The mucosa of the rectum and colon was normal. The ileum and ileocaecal valve was normal.” Follow-up action was indicated to be for a repeat of the procedure at age 50.[37]
[37] Applicant’s Evidence at [A1].
Considerations
The Tribunal accepts that the Applicant suffers considerable stress, pain and discomfort as a result of his fibromyalgia but equally finds that none of the Applicant’s conditions meet the requirement to be fully diagnosed, treated and stabilised during the qualifying period.
In the event that the Tribunal is in error on that point regarding the fibromyalgia, then it would assign a rating of no more than 10 points on the Impairment Table.
In either case the Applicant fails to reach the 20 points required (either on an individual or combined basis) to qualify for the DSP.
It is thus not necessary to consider any of the POS issues which would arise were this threshold to have been met.
The Applicant is, of course, able to seek to make a further application for the DSP at any time should his condition fail to improve or worsen.
DECISION
The decision under review is affirmed.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chris Puplick AM

...........................[SGD].............................................
Associate
Dated: 13 March 2020

Date(s) of hearing: 6 March 2020

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Services Australia

[2020] AATA 544

13 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	6 March 2020
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Services Australia