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

[2016] AATA 418

Haidari; Secretary, Department of Social Services and (Social services second review) [2016] AATA 418 (24 June 2016)

Division	GENERAL DIVISION
File Number	2014/4970
Re	Secretary, Department of Social Services
APPLICANT
And	Rahin Haidari
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	24 June 2016
Place	Adelaide

The Tribunal sets aside the decision under review and in substitution for that decision decides that during the relevant assessment period Mr Haidari was not qualified for disability support pension.

.......................[Sgd].................................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether respondent's medical conditions are fully diagnosed, fully treated and fully stabilised within 13 weeks of the claim - whether respondent's conditions warrant a rating of 20 points under the Impairment Tables  - decision under review set aside.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), clauses 3 and 4 of Schedule 2

CASES

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Member I Thompson

24 June 2016

INTRODUCTION

1. Mr Haidari lodged a claim for disability support pension (DSP) on 27 August 2013.  Centrelink rejected the claim.  Mr Haidari sought a review from a Centrelink authorised review officer (ARO) and the original decision of Centrelink was affirmed.  Mr Haidari then applied to the Social Security Appeals Tribunal (SSAT) for a review of that decision.  His application succeeded.  The SSAT set aside Centrelink’s decision.  Subsequently, the Secretary, Department of Social Services, applied to this Tribunal for a review of the decision of the SSAT.  On 3 October 2014, the Tribunal made a stay order of the decision of the SSAT.

   LEGISLATION AND ISSUES

2. The issues for the Tribunal is whether Mr Haidari satisfied the qualification criteria for the DSP which are set out in s 94 in the Social Security Act 1991 (the Act).  In accordance with ss 41 and 42, and clauses 3 and 4 of Part 2 to Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) the relevant assessment period for consideration of Mr Haidari’s claim is taken from the date of the DSP claim and 13 weeks following. The assessment period in this case is 27 August 2013 to 26 November 2013.

3. Section 94 of the Act provides that a person is qualified for DSP if:

   (a)The person has a physical, intellectual or psychiatric impairment;

   (b)The person’s impairment is of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (c)The person has a continuing inability to work.

4. In accordance with s 94 of the Act a person is regarded as having a “continuing inability to work” if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”.

   This second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

5. The main issues for determination are whether Mr Haidari’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and if so, whether he had a continuing inability to work.

6. By letter dated 2 July 2014, a Centrelink ARO affirmed Centrelink’s original decision to reject the DSP claim and made certain findings, namely:-

   ·Mr Haidari has permanent conditions, namely chronic pain and depression;

   ·those conditions were not fully diagnosed, treated and stabilised at the time of the DSP claim, which means that an impairment rating cannot be assigned;

   ·therefore there is not an impairment rating of 20 points or more; and

   ·Mr Haidari does not have a continuing inability to work 15 hours per week or more because of the impairment.

7. In setting aside the Centrelink decision, the SSAT found that Mr Haidari suffered from a permanent condition, namely low back pain, which attracted 10 impairment points under Table 4 of the Impairment Tables.  The SSAT found that Mr Haidari suffered from right shoulder bursitis, which attracted 5 impairment points under Table 2 of the Impairment Tables.  The SSAT found that Mr Haidari suffered from depression for which an impairment rating of 10 points under Table 5 applied.  Accordingly, the SSAT found that Mr Haidari’s total impairment rating was 25 points.  The ARO found and the SSAT accepted that Mr Haidari had met the criteria for active participation in a program of support and that his medical conditions prevent him from working for 15 hours per week any time in the following two years and therefore he has a continuing inability to work.

8. The Secretary’s application to this Tribunal for review of the SSAT decision included propositions that the SSAT erred by deciding:-

   (i)that any of Mr Haidari’s conditions were fully diagnosed, fully treated and fully stabilised;

   (ii)in the alternative, if the conditions of lower back pain and shoulder injury were fully diagnosed, fully treated and fully stabilised, the SSAT erred in assigning 10 impairment points under Table 4 and 5 points under Table 2 respectively, as the evidence did not support such assessments; and

   (iii)that Mr Haidari had a continuing inability to work.

9. In the Secretary’s Statement of Facts and Contentions, the Secretary conceded that Mr Haidari suffered from the following conditions at the assessment period and therefore satisfies s 94(1)(a) of the Act:

   ·a mental health condition;

   ·a spinal condition; and

   ·an upper limb condition.

   In relation to Mr Haidari’s mental health condition, the Secretary contended that the condition was fully diagnosed but not fully treated and fully stabilised in the claim period.  The Secretary conceded that Mr Haidari’s upper limb condition (specifically the right shoulder) was fully diagnosed, fully treated and fully stabilised in the claim period, and the impairment arising from that condition could be rated under Table 2 of the Impairment Tables with 5 points.  The Secretary conceded that the respondent’s spinal condition (specifically lumbar radiculopathy/spondylosis) was fully diagnosed, fully treated and fully stabilised in the assessment period, and the impairment from that condition rated under Impairment Table 4 with 5 points.

10. Accordingly, the Secretary contended that the total impairment rating in the assessment period was 10 points and Mr Haidari did not satisfy s 94(1)(b) of the Act.

11. In Mr Haidari’s Statement of Facts and Contentions, it was claimed that the impairment points for the spinal condition should be either 10 points or 5 points, the impairment rating for the upper limb should be 5 points, and the impairment rating for mental health condition should be 10 points.  There was also a suggestion of an impairment rating of 5 or 10 points under Table 1 relating to loss of stamina.  As Mr Haidari’s impairments attracted more than 20 points under the Impairment Tables and he had met the program of support requirements for the DSP claim (which the Secretary conceded), it was contended that Mr Haidari has a continuing inability to work more than 15 hours per week within two years of the claim period.  Mr Haidari asked that the Tribunal affirm the SSAT decision.

    THE HEARING

12. The hearing took place on 31 March 2016.  Mr Haidari was represented by Ms M Riley, Welfare Rights Centre (SA) Inc., and gave evidence through an interpreter.  The Secretary was represented by Mr C Visser, Department of Human Services.  Numerous medical reports were received in evidence as exhibits, together with records from Centrelink.

    CONSIDERATION

13. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment.  The Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.  Section 6 of the Rule for applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent, and that the impairment results from a condition that is more likely than not to persist for more than two years.  The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised.  The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.

14. The applicable impairment rating, if any, for each of Mr Haidari’s conditions will be considered in turn by reference to the Impairment Tables.  As indicated, consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an impairment rating, as the Impairment Tables provide this as a pre-requisite for the allocation of an impairment rating.

    Upper limb condition

15. It is clear from the evidence that Mr Haidari injured his right shoulder while he was operating a jackhammer in 2008.  There was a diagnosis of right should bursitis from 2008 and treatment included steroid injections, physiotherapy and exercise at home.  Medication was administered.  In his evidence, Mr Haidari described the pain that he suffered from the shoulder injury.  His hands were also affected.  They were swollen.  His WorkCover claim was accepted and there was a recommendation that he undergo an operation on his right shoulder.  However, he did not proceed with the operation.  As he explained in his evidence, he had a friend who sustained a similar injury.  His friend had an operation, which was unsuccessful.  It discouraged Mr Haidari from proceeding with that kind of operation himself.  He stated that the shoulder was still causing problems at the time of making the DSP claim.  Indeed, he felt a numbness down the right side of his body, particularly through his arm and into his right leg.

16. Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms.  The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not sufficient.

17. As previously indicated, the Secretary conceded that the upper limb condition was fully diagnosed, treated and stabilised in the assessment period. The Tribunal considers that this concession is correct.

18. In relation to mild functional impact, Table 2 states as follows:

Points

Descriptors

5

There is a mild functional impact on activities using hands or arms.

(1)     The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)     picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)     handling very small objects (e.g. coins);

(c)     doing up buttons;

(d)     reaching up or out to pick up objects.

1. In a report dated 7 April 2011, [1] a general medical practitioner, Dr R Tawi, identified that Mr Haidari suffered right shoulder impingement and pain which commenced in 2008.  The report confirmed pain in the neck and right shoulder, and an inability to do any meaningful work using the right hand.  Sleep patterns were disturbed.  Home exercises were recommended at that time.  There had been previous physiotherapy treatment. 

   [1]     Exhibit 1, T18, p 311-318.

2. Similarly, a report from another general medical practitioner, Dr K Wong, dated 9 August 2012,[2] confirmed a diagnosis of right shoulder and arm conditions with pain affecting the right neck and shoulder.  The report noted that Mr Haidari had consulted a medical specialist and he was suffering constant pain in the right arm and shoulder.  Future planned treatment included a continuation of previous treatment that involved physiotherapy, acupuncture and rehabilitation measures under the guidance of an occupational physician and an orthopaedic specialist.  In a report dated 20 December 2013,[3] Dr Wong confirmed the symptoms of right shoulder pain and pain in the arm.

   [2]   Exhibit 1, T19 p 319-326.

   [3]     Exhibit 1 T21 p338-348.

3. The Secretary arranged for Mr Haidari to be assessed by an independent medical examiner, Dr G Tschirn.  In his report dated 4 June 2015, [4] Dr Tschirn, who is an occupational physician, noted that Mr Haidari’s range of movement was restricted in both wrists, he was unable to fully bend his right elbow without suffering pain in the arm and right shoulder, there was tenderness over part of the shoulder, and abduction was considerably affected.  Dr Tschirn noted that Mr Haidari was not keen to have surgery and Dr Tschirn thought that was a reasonable approach.  He pointed out that the effects of age-related degeneration may be responsible for deterioration in the upper limb condition.

   [4]     Exhibit 7.

4. Mr Haidari’s evidence was consistent with the indicators in Impairment Table 2 for a mild functional impact.  He has trouble lifting heavier objects.  While he was working at a grocery shop, he was able to cope with light work at the counter.  However, he was unable to cope when he was asked to do more heavy work in the butcher’s section of the shop.  Then he ceased work altogether.  He has some difficulty reaching upwards and he said he cannot change a light globe.

5. It is also noted that a CT scan showed disc degeneration at L4/5 and L5/S1 with levels of moderate to severe facet joint degenerative changes at L5/S1 bilaterally. There was no obvious cause revealed for right sided sciatica.[5]

   [5]     Exhibit 1, T26, p 357, Report by Benson Radiology.

6. Noting all of the medical evidence, together with the evidence of Mr Haidari, the Tribunal considers that the appropriate rating is 5 points under Table 2 regarding the upper limb condition.

   Spinal condition

7. There was evidence that Mr Haidari injured his spine in a motor vehicle accident which occurred in 2005.  As indicated, the Secretary conceded that the spinal condition was fully diagnosed, treated and stabilised in the assessment period enabling the impairment to be rated under Impairment Table 4.  That concession is appropriate and correct.

8. Impairment Table 4 relates to spinal function and it is used where the person has a permanent condition leading to functional impairment with activities involving spinal function, such as bending or turning the back, trunk or neck.  There must be a diagnosis by an appropriately qualified medical practitioner as self-report of symptoms alone is not sufficient.

9. In relation to mild functional impact, Table 4 states as follows:-

Points

Descriptors

5

There is a mild functional impact on activities involving spinal function.

(1)     The person has some difficulty in:

(a)     activities over head height (e.g. activities requiring the person to look upwards); or

(b)     bending to knee level and straightening up again without difficulty; or

(c)     turning their trunk or moving their head (e.g. to look to the sides or upwards).

1. For moderate functional impact, Impairment Table 4 states as follows:-

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(1)     The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)     the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)     the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)     the person is unable to bend forward to pick up a light object placed at knee height; or

(d)     the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

1. The general medical practitioner, Dr Wong, reported on 9 August 2012[6] that Mr Haidari suffered from lumbar pain which radiated through his legs.  He was prescribed medication and the impact on his ability to function was described as “a poor endurance”.  Dr Wong confirmed that diagnosis of lumbar radiculopathy in a report dated 1 August 2013.[7]  Future planned treatment included a referral to the Pain Clinic at the Royal Adelaide Hospital.  Dr Wong noted impacts on lifting, bending and endurance.  Similar findings were confirmed in Dr Wong’s report dated 20 December 2013.[8]

   [6]     Exhibit 1, T19, p 319-326.

   [7]     Exhibit 1, T20, p 327-337.

   [8]     Exhibit 1, T21, p 338-348.

2. Dr Tschirn in his report dated 4 June 2015[9] reported a history from Mr Haidari as follows:-

   “He describes back pain after a motor vehicle accident in approximately 2005 where he fell asleep at the wheel.  He woke up and swerved to avoid hitting a tree, ending up in an embankment.  Since then he has had back pain which initially was minor but has gradually become more severe over time, particularly in the last 2 to 3 years.  He has constant back pain.  He describes radiation of pain down the right leg as far as the foot associated with a cold sensation in a similar distribution, present all of the time.  There do not appear to be any clear aggravating nor relieving factors.”

   [9]     Exhibit 7, p 3.

3. Dr Tschirn also noted that treatment had been by physiotherapy and massage together with various medications prescribed by Mr Haidari’s general medical practitioner, and that Mr Haidari was still on the waiting list for the Royal Adelaide Hospital Pain Clinic.  He had been on the wait list for about two years.  Dr Tschirn reported that there were affects in the cervical spine with mild stiffness in flexion and extension, together with slight reduction in right rotation.  Dr Tschirn found that thoracolumbar spinal movement was limited and extension was difficult.  Reports which Dr Tschirn read indicated a diagnosis of lumbar radiculopathy for which treatment has been prescribed through a combination of opioids, anti-inflammatories and pain modulating agents.  Dr Tschirn considered that the treatment was suitable for the symptoms and he doubted whether surgery had any role to play.  He doubted whether surgical intervention would lead to any significant gains in function, rather it might only lead to some improvement in comfort levels.

4. Mr Haidari gave evidence about the pain in his back.  He said that he cannot bend easily.  He can put on his socks by using his left hand.  Sometimes he needs help with self-care activities.  His wife does the shopping.  He said he cannot do it because of the pain that he has in his back.  This was the pattern in 2013 at the time of the DSP claim.  He does little of the domestic work at home and he has assistance from one of his children to do the outdoor tasks, such as sweeping leaves and cleaning up the yard.  At home, Mr Haidari said that he does not do very much.  He walks in and out of the house.  He watches TV.  He has a recliner chair, which gives him some comfort.  He goes to a local swimming pool and sits in the sauna to alleviate the back pain.  He was able to take long distance flights in 2015 from Australia to Iran where he arranged to see a medical specialist about his back condition.  Then he flew to Afghanistan and subsequently back to Australia again.  He moved about inside the aeroplanes as much as he could.

5. At the time of making his DSP claim and in the assessment period, the evidence suggests that Mr Haidari endured a moderate functional impact on activities involving spinal function.  The Tribunal considers that the appropriate rating is 10 impairment points under Table 4 in relation to spinal function.

   Mental health function

1. Mr Haidari gave evidence about his state of physical health and mental health when he first came to Australia in around 2000.  He said he was fit and healthy.  He worked hard over several years as a fruit picker at Renmark.  He moved to Adelaide in around 2006 after his wife and six children had arrived from Afghanistan.  Unfortunately, he had sustained injuries in a motor vehicle accident in 2005.  Subsequently, he was injured at work in 2008 while he was doing heavy work using a jackhammer and he damaged his shoulder.  Sometime later he bought into a partnership in a grocery business and eventually discovered that he could not do much heavy lifting. His physical health did not improve, while his social and emotional wellbeing seemed to deteriorate. 

2. By the time of the assessment period, Mr Haidari said that he would wake up in the mornings and have bad feelings and negative thoughts about himself.  His children told him that his attitude was changing and he was more difficult to get on with.  To some extent, he withdrew socially and tried to isolate himself.  At home, he would generally wake up at 3.00 am and walk around the backyard and wait for his family to wake up.  However, his physical pain was constant, particularly in the neck and shoulder on the right side.  He became upset because it was difficult to keep busy.  He liked to go for a short drive and sometimes he caught a train or bus into the city where he would walk around and look at people.  He was quite inactive at home.  Mainly he watched TV and he did not help with domestic tasks.  In evidence, he said that he worries about his mortgage, his children and “all the running around” that he has to do “for this Centrelink money”.  He is concerned that his memory is damaged, he is often forgetful and sometimes he gets severe headaches.  He has become impatient because of the lifestyle which he has to adopt in order to cope with his physical impairments.

3. In his evidence, Mr Haidari was not generally clear about the types of medication that he took, the periods when they were prescribed, changes in medication and the circumstances in which prescriptions were given.  Because of his language difficulties he relied on his children to explain the name of the medication and the dosage.  His recollection of the sequence of medical consultations was not good.  However, none of the difficulties with his recollection and understanding about the medication regime counts against him in the assessment of his evidence.  It is still possible from the medical reports and job capacity assessment reports to piece together the themes in the history of his medical health treatment.

4. A GP Mental Health Care Plan dated 3 November 2011 was received in evidence.[10]  It referred to three sessions of psychology which Mr Haidari attended at the Royal Adelaide Hospital in 2005.  The presenting complaints recorded in the Mental Health Care Plan included difficulties with sleeping, nightmares, anxiety, obsessional thoughts, feelings of depression and ‘no joy for a long time’.  The overall assessment of risk of harm to himself or to others was rated as ‘Nil.’

   [10]    Exhibit 14.

5. A report dated 1 August 2013 by general medical practitioner, Dr Wong[11], noted a diagnosis of depression, which had been supported by specialist opinion from a psychiatrist.  Treatment was by medication, namely Cymbalta.  Past treatment by a psychologist had taken place.  Symptoms noted in August 2013 included depressed mood, lack of appetite, disturbed sleep, constant headaches, low energy, poor memory and concentration difficulties.  It was expected that the impact of this condition would persist for more than 24 months and future planned treatment was further consultation with a psychologist.  These themes were reiterated in a subsequent report from Dr Wong dated 20 December 2013.[12] 

   [11]    Exhibit 1, T20.

   [12]    Exhibit 1, T21.

6. Dr Mohan is a psychiatrist with the Inner South Community Mental Health Service of SA Health.  He provided a written report dated 4 July 2013.[13]  This report is helpful and important in ascertaining the circumstances around Mr Haidari’s mental health during the assessment period.  During the consultation with Dr Mohan, Mr Haidari’s daughter was present to assist with interpretation.  Dr Mohan wrote that Mr Haidari suffers from “major depression of moderate severity.  There appears to be significant psychological and social determinants that perpetuate his depression and given his cultural background it is understandable why he somatises to seek help for psychological symptoms.”[14]  Dr Mohan recommended psychology input by a Farsi-speaking psychologist.  He noted that Mr Haidari had attended five sessions, sometime in the past, with a Farsi-speaking psychologist and those sessions were helpful.   Dr Mohan recommended a change of anti-depressant to one which was beneficial for co-morbid pain conditions.  Dr Mohan reported that Mr Haidari would benefit from a referral to the Pain Clinic either at the Flinders Medical Centre or the Royal Adelaide Hospital.  He explained to Mr Haidari the inter-relatedness of depression and pain, and the effect of one on the other.

   [13]    Exhibit 1, T23, p 351.

   [14]    Exhibit 1, T23, p 352.

7. A Job Capacity Assessment (JCA) report dated 18 September 2012[15] noted the condition of depression and commented that Mr Haidari reported suffering from depressive symptoms with onset in 2011.  The JCA report stated that Mr Haidari had seen a psychologist “recently” (one-two occasions over the past two months) and was taking Endep and sleeping tablets.  Self-reported symptoms included memory problems, difficulty with sleep, problems coping with noise and poor coping strategies.  A later JCA report dated 2 September 2013[16] followed a face-to-face assessment with Mr Haidari.  The report was prepared by an assessor and a contributing assessor with professional disciplines of psychology and rehabilitation counselling.  In relation to the condition of depression, the JCA report stated that the condition was fully diagnosed, however, it could not be considered to be fully treated or stable.  The JCA report referred to the psychiatric report by Dr Mohan and went to state:

   “Given the client reported previous benefit from attending sessions with a Farsi speaking Psychologist and a re referral has been recommended (client said he is to start seeing a psychologist under mental health care plan soon) and given he has only recently had a medication review with the psychiatrist, we can hope that these measures have a positive effect on his mental health in the next 12 months.  Finally, if he were to engage in a pain management program as per Psychiatrist’s recommendations (client advised he is on the waiting list), then the somatic complaints complicating the depression may improve and therefore improve the depression.”[17]

   [15]    Exhibit 1, T29, p 370-376.

   [16]   Exhibit 1, T31, p 383-390.

   [17]    Exhibit 1, T31, p 384.

8. The Tribunal notes that Dr Tschirn, who is an occupational physician and not a psychiatrist or psychologist, did not delve into the mental health issues in any depth and, in his report, he stated that they were only “touched on given the nature of the referral …”.[18]

   [18]    Exhibit 7, p 4.

9. Two reports from a neuropsychiatry registrar, Dr Ng, at the Royal Adelaide Hospital, were received in evidence.[19]  They related to Mr Haidari’s attendances at the Royal Adelaide Hospital on 25 August 2014 and 20 October 2014, several months after the DSP assessment period.  It is clear from those reports that he was attending the Neuropsychiatric Clinic at the Royal Adelaide Hospital for assessment and review.  Medication was prescribed and was being trialled, with the aim of achieving an appropriate therapeutic dose over an adequate period of time.  At the second appointment, it was planned to increase the intake of Duloxetine, with a further review in two months’ time.  Dr Ng also referred to post-traumatic stress disorder symptoms, which Mr Haidari had experienced in the past, notably after his arrival in Australia.

   [19]    Exhibit 11.

10. Dr M Ewer is a registered medical practitioner with specialist qualifications in psychiatry.  The Secretary referred Mr Haidari to Dr Ewer for an independent psychiatric opinion.  Dr Ewer interviewed Mr Haidari with the assistance of a professional interpreter and he provided a comprehensive written report, dated 3 March 2015.[20]  Dr Ewer considered that Mr Haidari suffers from a major depressive disorder and a post-traumatic stress disorder.  He was suffering from both of these conditions during the assessment period.  Dr Ewer also reported that it is possible that Mr Haidari is suffering from a somatic symptom disorder with predominant pain.  Dr Ewer wrote that “the working diagnosis at the relevant time in 2013 was a major depressive disorder”.[21]  He did not consider that appropriate and reasonable treatment had been administered to Mr Haidari in the assessment period, noting that he was on the waiting list for treatment at a Pain Management Clinic.  Dr Ewer reported that Mr Haidari’s depression was fully diagnosed by the end of assessment period, however, it was not fully treated or stabilised.  The post-traumatic stress disorder was not fully diagnosed, treated or stabilised by the end of the assessment period

    [20]    Exhibit 4.

    [21]    Exhibit 4, p 15.

11. In determining whether a condition has been fully diagnosed and whether it has been fully treated, the rules for applying the Impairment Tables state that the following must be considered (at s 6(5)):-

    “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.”

12. A condition is fully stabilised if (at s 6(6)):-

    “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.

    Note: For reasonable treatment see subsection 6(7).

13. In Fanning and Secretary, Department of Social Services[22], Deputy President Handley stated at [33]:-

    “The language in cl 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within 2 years, that is not the question for the Tribunal to determine. The legislation requires the tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter.  For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.”

    [22] (2014) 144 ALD 133.

14. Equally, it is important to note the comments of the Tribunal in ReBobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[23], at [34]:

    “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”

    [23] [2012] AATA 922.

15. Noting Mr Haidari’s evidence, together with the medical evidence already discussed, the predominant issue regarding mental health function, during the assessment period, related to depression.  It is reasonable to conclude that the condition of depression was fully diagnosed during the assessment period.  Was the depression fully treated and fully stabilised?

16. The treatment must be reasonable treatment, which is not necessarily the same as best practice treatment.  The Rules for applying the Impairment Table provide guidance about the meaning of reasonable treatment :-

    “Reasonable treatment

    (7)     For the purposes of subsection 6(6), reasonable treatment is treatment that:

    (a)     is available at a location reasonably accessible to the person; and

    (b)     is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

17. Taking into account all of the medical evidence, as already discussed, it is clear that Mr Haidari’s  treatment  had been commenced prior to and during the assessment period and it  was still in its early stages at that time.  The Tribunal considers that the mental health condition was not fully treated and not fully stabilised for the purpose of s 6(5) and s 6(6) of the Rules for Applying the Impairment Tables.  In those circumstances a rating from the Impairment Tables cannot be given in relation to the mental health condition.

    SUMMARY

18. During the assessment period, Mr Haidari suffered from impairments as a result of a spinal condition, an upper limb condition and a mental health condition. He met the requirements of s 94(1)(a) of the Act.

19. As outlined, the Tribunal finds that Mr Haidari’s spinal condition was fully diagnosed, treated and stabilised during the assessment period.  The Tribunal finds that the applicable rating for that condition is 10 points.

20. The Tribunal finds that Mr Haidari’s upper limb condition was fully diagnosed, treated and stabilised during the assessment period.  The applicable rating for that condition is 5 points.

21. Mr Haidari’s condition of depression was diagnosed during the assessment period.  However, it was not fully treated and not fully stabilised.  An impairment rating under the Impairment Tables cannot be given in relation to the mental health condition.

22. With a total of 15 impairment points, the Tribunal finds that Mr Haidari does not have an impairment or combination of impairments that attract a rating of at least 20 points under the Impairment Tables during the assessment period. This means that Mr Haidari does not meet the requirements of s 94(1)(b) of the Act, and does not qualify in the assessment period for the DSP. It follows that it is not necessary to consider whether Mr Haidari has a continuing inability to work within the meaning of s 94(1)(c) of the Act.

    DECISION

23. The Tribunal sets aside the decision under review and in substitution for that decision decides that during the relevant assessment period Mr Haidari was not qualified for disability support pension.

I certify that the preceding 56 (fifty -six) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

...................[Sgd].....................................................

Administrative Assistant

Dated 24 June 2016

Date(s) of hearing	31 March 2016
Advocate for the Applicant	Mr C Visser
Solicitors for the Applicant	Department of Human Services
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (SA) Inc