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

Goward and Secretary, Department of Social Services (Social services second review) [2021] AATA 1849 (23 June 2021)
Division:GENERAL DIVISION
File Number:2020/4793
Re:Ruthie Goward
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:23 June 2021
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
23 June 2021
INTRODUCTION

On 30 January 2020, Ms Ruthie Goward (the Applicant) lodged a claim for the disability support pension (DSP).[1] On the Applicant’s claim for DSP form she lists her disabilities or medical conditions that significantly affect her ability to work to include: “Chronic bilateral arm, leg and lower back pain, lumbar spondylosis and degenerative disc disease, high blood pressure.”[2]
[1] Exhibit 1, T Documents, T18, pages134-164, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents, T18, page 159, Claim for Disability Support Pension.
The Applicant’s claim was rejected on 10 February 2020,[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[3] Exhibit 1, T Documents, T21, pages 172-173, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision and on 13 March 2020 an Authorised Review Officer (ARO) affirmed the decision. The ARO found that the Applicant’s condition of “low back pain with lumbar spondylosis (degenerative disc disease)” was not permanent as they formed the view that the condition had not been fully treated and fully stabilised.[4]
[4] Exhibit 1, T Documents, T25, pages 181-186, 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). On 7 July 2020, the SSCSD found that the Applicant’s low back pain with lumbar spondylosis was fully diagnosed but was not fully treated and fully stabilised, affirming the decision to refuse her claim for DSP.[5]
[5] Exhibit 1, T Documents, T2, pages 5-8, 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 4 August 2020.[6]
[6] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 17 June 2021, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of her 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) Act1999 (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;[7]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[8] and
3.does the Applicant have a continuing inability to work?[9]
[7]     Section 94(1)(a) of the Act.
[8]     Section 94(1)(b) of the Act.
[9]     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”.[10]
[10] 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.[11] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.
[11] 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.[12]
[12] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[13]
(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.
[13]    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.[14]
[14] 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.[15] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[16]
[15] Section 6(2) of the Determination.
[16] 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.[17]
[17] 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.[18]
[18] 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.[19]
[19] 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 30 January 2020, being the date, the Applicant lodged his claim for DSP, and ending 13 weeks later on 30 April 2020. 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.[20] The Respondent considers the Applicant’s impairments for the purpose of the claim for DSP in question consist of functional neurological disorder (FND),[21] cervical spine[22] and lumbar spine conditions.[23]
[20]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 54.
[21]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraphs 55-57.
[22]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 58-64.
[23]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 65-74.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and
2. if so, did the Applicant have a continuing inability to work?
CONSIDERATION
The Applicant has made a number of claims for DSP over the past 10 years or so, however until late 2019 had not met the residency requirements to be eligible to be granted the DSP. The matter before this Tribunal is limited to the claim made by the Applicant on 30 January 2020, should the Applicant be dissatisfied with the outcome of any previous or subsequent claims for DSP that she may have made she needs to seek review of such decisions in the appropriate manner.
By way of background, the Applicant reported being involved in an accident in 1983 when she was hit by a car when crossing a road. The Applicant reported that the primary injury was to her right shoulder and that she had no real issues for 10 years but in 1993 she experienced a severe episode of back pain.[24]
[24] Exhibit 1, T Documents, T10, page 79, Job Capacity Assessment Report dated 27 May 2015.
At the conclusion of a face to face assessment of the Applicant on 26 May 2015, a Job Capacity Assessor (JCA), whose professional discipline is listed as a registered occupational therapist found that the Applicant’s intervertebral disc disorder was fully diagnosed, fully treated and fully stabilised and recommended that she should be assigned 20 points under Table 4 (relating to spinal function) and 10 points under Table 3 (relating to lower limb function) of the Impairment Tables.[25] As the Applicant did not meet the residency requirements at that time, her claim was refused.
[25] Exhibit 1, T Documents, T10, pages 78-88, Job Capacity Assessment Report dated 27 May 2015.
Since 2015, and in particular since 2018 the Applicant has had her spine conditions reviewed by a number of specialists and has engaged in some treatment for these conditions. The Tribunal must also examine the evidence from that period to date. The Tribunal cannot just accept the findings of the 2015 JCA Report, it must make a full assessment of the material before it as it relates to the Relevant Period. It is obvious in this case that the Applicant’s conditions and the management of those conditions have changed since 2015. As set out above the Tribunal is looking at the Applicant’s conditions during the Relevant Period, being 30 January to 30 April 2020.
At Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal. The Tribunal considers that the Applicant was open with her answers to the questions she was asked and was forth coming in providing her evidence. The Tribunal accepts that the Applicant’s health is deteriorating and that her mobility issues impact upon her ability to undertake daily activities. It was clear to the Tribunal that the Applicant would like to work, however is unable to do so due to her poor health.
At Hearing the Applicant agreed that her blood pressure is well controlled by medication and as such was not the medical reason as to why she is seeking the DSP. The Applicant agreed that her blood pressure was not the subject of the present application.
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
Spine conditions
It is not in contention that the Applicant’s cervical spine and lumbar spine conditions (collectively spine conditions) were fully diagnosed during the Relevant Period.[26] The Applicant’s degenerative disc disease was diagnosed by Dr P O’Hare in a CT report dated 6 November 2014.[27] That diagnosis has since been confirmed by Dr Tim Han[28] and the doctors at the neurosurgery clinic.[29]
[26]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 58 and 65.
[27]    Exhibit 1, T Documents, T7, pages 61-63, Report of Dr P O’Hare.
[28]    Exhibit 1, T Documents, T12, pages 102-105, Applicant’s GP Management Plan dated 21 September 2018.
[29]    Exhibit 1, T Documents, T16, page 128, Report of Dr Alan Lackey; T22 pages 174-176, Report of           Dr Sean Stephens and Exhibit 6, HPAU Additional Documents, A1, pages 2-4, Clinical information        from Royal Brisbane and Women’s Hospital.
What is in contention is whether the Applicant’s spine conditions were fully treated and fully stabilised during the Relevant Period and if so what impairment rating can be assigned under the Impairment Tables.
At Hearing the Applicant told the Tribunal that:
·This claim was not a new claim, it was the same claim that she had made in 2015. The claim does not relate to a new condition, she is just following up on her 2015 application.
·Since 2015 she had been exempted by Centrelink from working on the basis of the findings in 2015 that her degenerative disc disease was fully diagnosed, fully treated and fully stabilised.
·The only reason she did not get the DSP at that time was because she did not meet        the residency requirements. She does not understand now why the Respondent is         saying her condition is not fully treated and fully stabilised, as if that is the case why           had Centrelink not assisted her to find work earlier, she was willing to look for work          but Centrelink had told her she was not able to work.
·Her health has declined. It declined rapidly after having the nerve root injections at          the end of 2019.
·Since the nerve root injections, she no longer has pain caused by her degenerative         disc disease. It is far worse, she now has weakness. With the pain she was able      to push through and still do things, however with the weakness she is unable to do            things at all, she can now not stand for more than 10 minutes.
·She had been seeing the doctors since 2018 as she was declining and wanted options to ensure she could stay independent. Now she has FND as well which is worse and she is unable to drive herself and needs people to help her.
·She saw the specialists to maintain her functionality not to treat her.
·Degenerative means going downhill, it will not improve.
·She had been to physiotherapy when she could on a health care plan as she could not afford to go outside of that plan.
·The only physiotherapist she has seen was Ms Young.
·She was doing home based exercises but they were not assisting.
·She took the medication the doctors told her to.
·She has not attended a pain management clinic as she does not have pain.
·During the Relevant Period she could wash her hair and put clothes on the line as she could push through the pain, now she is too weak and cannot stand for long.
·During the Relevant Period it was not her back that was affecting her, it was the weakness she was experiencing.
·When asked why the specialists continued to recommend that she engage with physiotherapy and a pain management clinic up to November 2020, that the doctors did not believe her that she went downhill and had no pain.
·Her application related only to her degenerative disc disease so she does not see why any reference is being made to her FND condition as it was only diagnosed earlier this year. She has since been admitted to hospital for four weeks and attended rehabilitation to help her learn how to deal with her current health issues.
There is a large number of medical reports before the Tribunal in relation to the diagnosis and treatment of the Applicant’s spine conditions. Of note that evidence has been summarised and analysed by Dr Samira Peera, medical advisor who provided the Respondent with a Health Professional Advisory Unit (HPAU) report dated 29 January 2021.[30] In her report Dr Peera considered the medical evidence that was available to the Respondent up to the time of referral of the file to her and also to another bundle of evidence she sourced which includes clinical information and records of various practitioners, discussions with the Applicant’s present treating general practitioner, Dr Jesus Donado, the Applicant’s Medicare Patient History Report and PBS Patient Summary and other Centrelink related medical reports or applications.[31]
[30] Exhibit 5, HPAU Report, pages 1-24.
[31] Exhibit 6, HPAU Additional Documents, A1-A21, pages 1-192.
Having reviewed the material in total, the Tribunal considers that the summary provided by Dr Peera has comprehensively and accurately set out the medical evidence before the Tribunal. Consequently, the Tribunal does not consider it necessary to duplicate that evidence in this decision, rather refers to the HPAU Report of Dr Peera for a comprehensive analysis.
The documentary evidence before the Tribunal indicated that:[32]
·Recommended treatment for the Applicant’s cervical spine condition in the lead up to, during and after the Relevant Period was physiotherapy,[33] a home based monitored exercise program[34] and medication.[35]
·The Applicant only attended physiotherapy on three occasions in 2018[36] and during the Relevant Period, if the Applicant was engaging in a home based exercise program it was not monitored.[37]
·These outlined treatments were reasonable treatments for the Applicant to engage in and were likely to result in significant functional improvement to a level enabling the Applicant to undertake work in the next 2 years.[38]
·The Applicant’s had nil to minimal issues relating to her cervical spine during the Relevant Period.[39]
·Recommended treatment for the Applicant’s lumbar spine condition in the lead up to, during and after the Relevant Period was CT guided L4 Root Block injections,[40] hydrotherapy,[41] physiotherapy,[42] home based monitored exercise program,[43] neurosurgical referral,[44] pharmacology to treat long term lumbar pain,[45] attendance at a pain management clinic or review by a pain management specialist[46] and possible surgical intervention.[47]
·The Applicant only attended physiotherapy on three occasions in 2018[48] and during the Relevant Period did not engage with appropriate pharmacology,[49] a pain management clinic or specialist[50] or a monitored home base exercise program.[51]
·The Applicant underwent CT guided L4 Root Block injections on 28 November 2019 and 5 December 2019.[52] It was noted that the nerve root injections provided the Applicant with excellent pain relief but that the Applicant reported that the procedure caused her to have reduced mobility and high blood pressure. The Applicant’s reduced mobility was considered not be a result of the injections or her spine conditions.[53]
·Engaging with physiotherapy, a home based monitored exercise program, appropriate pharmacology and attendance at pain management clinic or review by a pain management specialist were reasonable treatments for the Applicant to engage in and were likely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years.[54]
[32]    Exhibit 5, HPAU Report, pages 3-20.
[33]    Exhibit 1, T Documents, T12, page 102-105, Applicant’s GP Management Plan; T16, page 128, Report of            Dr Alan Lackey and Exhibit 6, HPAU Additional Documents, A1, pages 2-3, Clinical Information from Royal           Brisbane and Women’s Hospital.
[34]    Exhibit 1, T Documents, T12, page 102-105, Applicant’s GP Management Plan; T15, pages 122-123, Report       of Grahame Milne; T16, page 128, Report of Dr Alan Lackey; T22 pages 174-176, Report of Dr Sean    Stephens and Exhibit 6, HPAU Additional Documents, A1, pages 6-7, Clinical Information from Royal      Brisbane and Women’s Hospital; A4, page 36, Clinical Records 11 October 2018 – 9 November 2018 of           Ms Joy Young.
[35]    Exhibit 1, T Documents, T12, page 102-105, Applicant’s GP Management Plan.
[36]    Exhibit 6, HPAU Additional Documents, A4, page 36, Clinical Records 11 October 2018 – 9 November 2018       of Ms Joy Young and A7, pages 50-61, Letter, Clinical Records 2018-2020, and List of Appointments            2015-2020, Ms J Young.
[37]    Exhibit 1, T Documents, T16, page 128, Report of Dr Alan Lackey and Exhibit 6, HPAU Additional          Documents, A2, page 20, Discussion with Dr Jesus Donado.
[38]    Exhibit 5, HPAU Report, pages 5, 16-17.
[39]    Exhibit 1, T Documents, T16, page 128, Report of Dr Alan Lackey; T22 pages 174-176, Report of           Dr Sean Stephens and Exhibit 6, HPAU Additional Documents, A1, pages 2-3, Clinical Information from Royal Brisbane and Women’s Hospital.
[40]    Exhibit 1, T Documents, T16, page 128, Report of Dr Alan Lackey.
[41]    Exhibit 1, T Documents, T16, page 128, Report of Dr Alan Lackey.
[42]    Exhibit 1, T Documents, T12, pages 102-105, Applicant’s GP Management Plan dated 21 September 2018;         T16, page 128, Report of Dr Alan Lackey and T22 pages 174-176, Report of Dr Sean Stephens.
[43]    Exhibit 1, T Documents, T16, page 128, Report of Dr Alan Lackey; and Exhibit 6, HPAU Additional Documents, A4, page 36, Clinical records 11 October 2018 – 9 November 2018 of Ms Joy Young.
[44]    Exhibit 1, T Documents, T12, pages 102-105, Applicant’s GP Management Plan dated 21 September 2018.
[45]    Exhibit 1, T Documents, T12, pages 102-105, Applicant’s GP Management Plan dated 21 September 2018;         Exhibit 5, HPAU Report, page 6.
[46]    Exhibit 1, T Documents, T16, page 128, Report of Dr Alan Lackey and T22 pages 174-176, Report         of Dr Sean Stephens.
[47]    Exhibit 1, T Documents, T12, pages 102-105, Applicant’s GP Management Plan dated 21 September 2018;         T16, page 128, Report of Dr Alan Lackey and T22 pages 174-176, Report of Dr Sean Stephens and        Exhibit 6, HPAU Additional Documents, A1, page 4, Clinical Information from Royal Brisbane and Women’s            Hospital
[48]    Exhibit 6, HPAU Additional Documents, A4, page 36, Clinical Records 11 October 2018 – 9 November 2018       of Ms Joy Young and A7, pages 50-61, Letter, Clinical Records 2018-2020, and List of Appointments            2015-2020, Ms Joy Young.
[49]    Exhibit 5, HPAU Report, pages 6-7 and Exhibit 6, HPAU Additional Documents, A2, page 20, Discussion            with Dr Jesus Donado and A21, page 192, PBS Patient Summary.
[50]    Exhibit 1, T Documents, T2, page 2, paragraph 19, Decision of the SSCSD and Exhibit 6, HPAU Additional Documents, A2, page 20, Discussion with Dr Jesus Donado.
[51]    Exhibit 1, T Documents, T16, page 128, Report of Dr Alan Lackey, Exhibit 5, HPAU Report, page 7        and Exhibit 6, HPAU Additional Documents, A2, page 20, Discussion with Dr Jesus Donado.
[52]    Exhibit 1, T Documents, T19, pages 166-167, CT Guided Root Injection Reports from Dr Mark Cooper.
[53]    Exhibit 1, T Documents, T22 pages 174-176, Report of Dr Sean Stephens.
[54]    Exhibit 5, HPAU Report, pages 5-10, 16-17.

The Respondent contended that the Applicant’s cervical spine condition was not fully treated and fully stabilised during the Relevant Period. The Respondent relied upon the opinion of Dr Peera which noted that the Applicant had not fully engaged with reasonable treatment for this condition which consisted of self-treatment measures, medication and physiotherapy.[55]
[55] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 59-61.
The Respondent contended that the Applicant’s lumbar spine condition was not fully treated and fully stabilised during the Relevant Period on the basis that the Applicant had not engaged in appropriate physiotherapy, had not taken appropriate pharmacology to treat long term lumbar pain and had not engaged with a pain specialist.[56]
[56] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraph 66.
Based on the evidence before it, the Tribunal agrees with the opinions provided by Dr Peera in her HPAU report dated 29 January 2021.[57] As such the Tribunal finds that during the Relevant Period the Applicant’s spine conditions were fully diagnosed but were not fully treated and fully stabilised as she had not engaged with recommended and reasonable treatment.
[57] Exhibit 5, HPAU Report, pages 1-24.
While the Tribunal accepts the Applicant’s, pain had resolved after receiving the nerve root injection, the medical evidence before the Tribunal indicates that her treating specialists still considered that her condition would improve if she engaged in physiotherapy and a pain management clinic. The Tribunal notes that pain management clinics provide a wholistic approach looking at mental health and physical aspects of a person’s health concerns.
Consequently, the Tribunal finds that whilst the Applicant’s spine conditions are lifelong conditions, they cannot be considered permanent for the purpose of applying the Impairment Tables. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for these conditions.
Even if the Tribunal had of been satisfied that the Applicant’s spine conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period, based on the medical evidence before the Tribunal and that provided by the Applicant at Hearing, the Tribunal would not have been able to assign 20 impairment points under one or multiple tables of the Impairment Tables. A such her claim for DSP would still be refused.
The evidence before the Tribunal clearly sets out that the functional impairments being experienced by the Applicant during the Relevant Period were not attributable to her spine conditions, but rather to something else. As it so happens that something else has now, on the Applicant’s evidence been diagnosed as FND. Therefore, while the Applicant’s spine conditions are degenerative the functional impacts those conditions had upon the Applicant seem to have resolved upon her receiving the nerve root injections.
Functional Neurological Disorder
The Tribunal notes that in trying to understand the cause of the Applicant’s mobility issues that arose after having experienced a relief of pain from her back conditions following the left and right L4 Nerve Root Block injections in late 2019, that Dr Thorbjorn Loch-Wilkinson, neurosurgeon in a report dated 6 November 2020 to the Applicant’s general practitioner hypothesised that the Applicant may have a Functional Neurological Disorder and suggested that an appropriate diagnosis may be made by a psychiatrist or neurosurgeon.[58]
[58] Exhibit 6, HPAU Additional Documents, A1, pages 2-3, Clinical Information from Royal Brisbane and Women’s Hospital and for further analysis Exhibit 5, HPAU Report, pages 17-18.
The Applicant advised the Respondent on 27 January 2021 that she had been diagnosed with FND.[59]
[59] Exhibit 6, HPAU Additional Documents, A19, page 180, Applicant’s Email to the Respondent.
The Applicant told the Tribunal at Hearing that she lodged her claim for DSP in relation to her degenerative disc disease only. At that time, she did not know about FND. The Applicant said her FND condition was only diagnosed earlier this year and she agrees it could not have been fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Applicant said she has been waiting to complete rehabilitation so she can make a new claim for DSP on the basis of her FND condition.
The Respondent contended that the Applicant’s FND condition was not fully diagnosed in the Relevant Period, noting that assessments and preliminary investigations into the condition commenced six months after the conclusion of the Relevant Period and that there was still no formal diagnosis of this condition before the Tribunal. The Respondent further contended that the Applicant’s FND condition was not fully treated and fully stabilised during the Relevant Period.[60]
[60] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraphs 55-57.
Noting that the possible diagnosis of FND was not made until well after the Relevant Period and in the absence of any corroborating evidence that a formal diagnosis had been made that may be applicable to the Relevant Period, the Tribunal finds that the Applicant’s FND condition was not fully diagnosed during the Relevant Period. Further, in the absence of any supporting medical evidence in relation to treatment and functional impairment relating to the condition, the Tribunal cannot be satisfied that it was fully treated and fully stabilised during the Relevant Period. This finding is consistent with the evidence provided at Hearing by the Applicant and the contentions made by the Respondent.
Consequently, the Tribunal finds that the Applicant’s FND condition could not be considered permanent for the purpose of applying the Impairment Tables. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
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.
CONCLUSION
The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
The Tribunal finds that the Applicant’s spine conditions were fully diagnosed, however were 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. The Tribunal is therefore unable to assign impairment points for these conditions.
The Tribunal finds that the Applicant’s functional neurological disorder 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. The Tribunal is therefore unable to assign impairment points for these conditions.
The Tribunal finds that for the purposes of section 94(1)(b) 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 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..................[SGD]......................................................
Associate
Dated: 23 June 2021

Date of Hearing: 17 June 2021

Applicant: By telephone

Solicitors for the Respondent:
Mr Samuel Harvey

Services Australia

[2021] AATA 1849

23 June 2021

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