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

[2017] AATA 1242

Hammond and Secretary, Department of Social Services (Social services second review) [2017] AATA 1242 (10 August 2017)

Division:GENERAL DIVISION

File Number:           2016/6998

Re:David Hammond

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member J Sosso

Date:10 August 2017

Place:Brisbane

The Tribunal affirms the decision under review.

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

Senior Member J Sosso

CATCHWORDS

SOCIAL SECURITY – disability support pension – Impairment Tables – where Applicant has several conditions – whether conditions are fully diagnosed, treated and stabilised – points allocation – whether conditions attract points under the Impairment Tables – relevant period – decision under review affirmed

LEGISLATION

Social Security Act 1991 ss 26 and 94

Social Security Administration Act 1999

CASES

Bobera and Secretary, Department of Families, Housing,  Community Services and Indigenous Affairs

[2012] AATA 922

Gallacher v Secretary, Department of Social Security

[2015] FCA 1123

Shi v Migration Agents Registration Authority

(2008) 235 CLR 286

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011

REASONS FOR DECISION

Senior Member J Sosso

10 August 2017

INTRODUCTION

1. Mr David Hammond (the Applicant) seeks a review of the decision of the Social Services and Child Support Division of this Tribunal (AAT 1) of 30 November 2016 which affirmed a decision of the Department of Human Services (the Department) to reject the Applicant’s claim for the disability support pension (DSP).

2. The Applicant was born in 1970 and left school at age 14. Subsequently he worked in a variety of jobs, including roof tiling, making and installing security screens, furniture removal and making and relocating buildings for mining sites - Exhibit 1 T10 p.77.  However, for most of his adult life, his main area of work has been as a commercial fisherman.

3. The Applicant has had a series of mishaps; physical, emotional and financial. On 8 September 2014 while working as a fisherman he jumped from a 18 foot fibre-glass boat at a height of 5 feet and landed on both feet. He felt a pain on the left side of his lower back, and later he began to experience severe pain which persisted for two months. The pain has since decreased, but he is still discomforted – Exhibit 1 T10 p.76.

4. The Applicant was unable to work as a commercial fisherman due to his incapacity following the accident.  The evidence presented indicates that he sought compensation for his spinal condition but was unsuccessful because his employment status was an independent contractor rather than an employee. Due to a combination of factors, including the costs of his failed action to obtain compensation and his lack of steady income, he was declared bankrupt – Exhibit 1 T3 p.9.

5. On 5 April 2016 the Applicant lodged a claim for the DSP – Exhibit 1 T16 pp, 95-100. He listed the following disabilities, illnesses or injuries that he claimed he had (Exhibit 1 T 16 p.97):

   “Severe depression with anger, anxiety, acute disc prolapse, post traumatic stress disorder. R/Arm median nerve damage. Swollen varicose veins R/leg.”

6. In his claim form, the Applicant stated that his most recent employer was Fletcher Moody Fishing where he worked between 8 and 11 September 2014 as a dory fisherman.  Prior to that he worked in the same occupation for RCM Fishing between 20 March 2014 and 10 July 2014.

7. A medical report prepared in the standard form in support of the DSP claim was submitted by Dr Robert d’Hotman of the Woree Family Medical Centre – Exhibit 1 T17 pp.101 - 111. Dr d’Hotman opined that the medical conditions which had most impact on the Applicant were (p.104):

   “Complex P.T.S.D.  Depression (major)”

8. Dr d’Hotman also diagnosed the Applicant suffering from “disc prolapse L4-5 compressing left L5”. The date of onset of this condition was stated to be 8 September 2014 – p.107.

9. The Applicant was examined by Dr Una Stephenson, consultant psychiatrist with the Queensland Government. Dr Stephenson’s diagnosis was as follows – Exhibit 1 T14 pp. 92 – 93:

   “This is a sad tale indeed, of a man who seems to have been mistreated in the system that is meant to support people and is now left basically without a home of his own and on NewStart.

   As you know, there is a long story about how he suffered an injury at work and his employer first of all chose to dismiss him as having been a contractor, not an employee and then went on to deny the existence of a witnessed accident which caused his back injury.

   Apart from that he has had many misfortunes in life;…later he obviously made a very unfortunate choice in marriage and his wife descended into drug addiction and alcohol abuse and became increasingly unable to look after their child.  It was in the course of trying to protect the child that the altercation took place in which he injured his arm.  Subsequently, it was only when the wife committed a very serious violent offence and was imprisoned that he actually gained full custody of his daughter but had to give up his life of a fisherman in order to raise her.  Subsequently however, while he was making the difficult choice between going back to work on the sea and looking after her, his daughter got involved in the drug scene which again, involved him in further traumatic events and eventually forced them to relocate to get away from the drug scene.

   Subsequently while he was living in rented accommodation, multiple financial disasters hit in that he was turned down by Workcover, rejected by his insurance company and his insurers for any compensation claim and was unable to keep up the rent on his unit so that he became homeless. His current situation, living with his father or couch surfing looks bleak.

   At the moment I would offer a diagnosis of Major Depression with complex PTSD which is not going to yield fast to treatment even if we can get him into appropriate counselling locally. He is in no condition to return to work at the moment and the DSP seems appropriate, and Centrelink could perhaps pull finger and thereafter look at getting him into a comprehensive and suitable return to work program which does not appear to have been done.

   I’m not sure how much we’re going to achieve with medication alone. I’ve suggested that he try the antidepressant Mirtazapine 15 mgs increasing to 30 mgs …to see if that helps sleep at least.  As for the Lexapro 10 mgs, continue that for the time being, but it’s a fairly feeble dose and not likely to do much; he is very vague about previous attempts to treat with antidepressants and I’m not even quite clear as to whether the Lexapro dose is so low because of side effects at a higher dosel, if not, it should be increased. However, hopefully the Mirtazapine will help sleep and prove useful.”

10. The Applicant was assessed by a Job Capacity Assessor (JCA) on 18 May 2016.  The JCA was a registered psychologist. The JCA found the Applicant (Exhibit 1 T18 pp.112-115 and 117):

    (a)had a mental health condition that was fully diagnosed, treated and stabilised and  attracted 10 points under Table 5 of the Impairment Tables;

    (b)had a fully diagnosed, treated and stabilised spinal condition, which attracted 10 points under Table 4;

    (c)had a work capacity of 8 – 14 hours per week within two years with mainstream intervention; and

    (d)had not participated in a program of support (POS) for an 18 month period over three years.

11. On 30 June 2016 the Applicant’s claim was rejected on the basis that he had not participated in a POS for an 18 month period over three years – Exhibit 1 T19 pp.120 – 121.

12. On 30 August 2016 an Authorised Review Officer (ARO) affirmed the decision to reject the Applicant’s claim for the DSP and made broadly similar findings to those of the JCA – Exhibit 1  T20 pp.122 – 126.

13. The AAT 1 was constituted by Dr King who reached the following conclusion - Exhibit 1 T3 p.15:

    “31. When he claimed disability support pension, Mr David Hammond had a physical impairment caused by spinal conditions and a psychiatric impairment caused by mental health conditions. The tribunal has found that Mr Hammond’s mental health conditions were fully diagnosed, but not fully treated or fully stabilised when he claimed disability support pension. This means that an impairment rating could not be assigned under Table 5 of the Impairment Tables.  The tribunal has found that Mr Hammond’s spinal conditions were fully diagnosed, fully treated and fully stabilised at the time of claim.  The tribunal has assigned 10 impairment points under Table 4 of the Impairment Tables, on the basis of a finding that Mr Hammond experiences moderate difficulty with activities that require spinal function. It follows that, at the time of claim, Mr Hammond did not have 20 or more impairment points and did not qualify for disability support pension under section 94 of the Act.”

14. It is important to note at the outset that a person’s claim for the DSP must be assessed on the basis of the applicant’s medical condition at the date of the claim or within 13 weeks thereafter.  This is referred to in this decision as the “qualification period”. The qualification period in this matter is 5 April 2016 to 5 July 2016.  The application of the qualification period to the reception of evidence and related matters is discussed below.

15. The Applicant participated in the hearing of 26 June 2017 by telephone and was self-represented.  The Secretary, Department of Social Security (the Respondent) was represented by Mr Dube of Sparke Helmore Lawyers.

    ISSUES TO BE DETERMINED

16. There are, potentially, three broad issues to be determined:

    (a)does the Applicant have any impairments that were at the qualification period fully diagnosed, treated and stabilised; and if so

    (b)whether any impairment singularly, or all impairments cumulatively, attracted an impairment rating of at least 20 points; and if so

    (c)whether the Applicant had a continuing inability to work.

    THE LEGISLATION

17. To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:

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

    (b)the person’s impairments is of 20 points or more under the Impairment Tables; and

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

18. The Impairment Tables are located in the Determination, which was made pursuant to section 26 of the Act and came into force on 1 January 2012.

19. Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clauses 5(2) and (3). Importantly, Clause 5(2) explains that the Tables are function based rather than diagnosis based (Cl 5(2)(b)), and describe functional activities, abilities, symptoms and limitations - Cl 5(2)(c). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions – Cl 5(2)(d).

20. The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).

21. An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).

22. To be a permanent condition it must be:

    (a)fully diagnosed by a medical practitioner;

    (b)fully treated;

    (c)fully stabilised; and

    more likely than not, to persist for more than two years – Cl 6(4).

23. In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).

24. A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).

25. A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.

26. This requirement was explained  by the Tribunal in Bobera and Secretary, Department of Families, Housing,  Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:

    “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 of 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 preferred 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.”

    CONSIDERATION

    Introduction

27. The Respondent accepts that the Applicant has impairments and therefore satisfies s 94(1)(a) of the Act – Secretary’s Statement of Issues, Facts and Contentions (SSIFC) para 5.1.

    Spinal Condition

28. The Respondent accepts that the Applicant’s spinal condition was fully diagnosed, treated and stabilised during the qualification period. Further, the Respondent contends that the appropriate Impairment Table to assess the condition is Table 4- Spinal Function – SSFIC para 6.3.

29. The Applicant’s spinal condition was comprehensively diagnosed by Dr Ian Cheung, an orthopaedic surgeon, who examined him on 17 April 2015. Dr Cheung opined that the injuries sustained by the Applicant in 2014 constituted aggravation of lumbar spondylosis – Exhibit 1 T10 p. 77.  A CT of the lumbar spine of 29 September 2014 disclosed a L4/5 left-sided disc protrusion along with disc bulges at other levels. An X ray of 15 September 2014 disclosed early degenerative disc disease with a mild lumbar curve noted – p. 78.

30. Dr Cheung provided the following evaluation of the Applicant’s spinal condition – Exhibit 1 T10 p.78:

    “Clinical Evaluation

    On examination, Mr Hammond mobilises with a normal gait. He was a pleasant man with a flat affect. Axial compression and rotation brought on pain in his back.  Even gentle palpation was reportedly tender in the same region.  Mr Hammond was able to flex to 40 to 50 degrees, with his hands reaching the level of mid-tibia.  He had 10 degrees of extension and 10 degrees of lateral bend.  Neurologic examination was unremarkable.  He had intact sensation in all lower limb dermatomes and had 5/5 motor power throughout. Nerve stretch tests were negative.

    Current Functional Status

    The following were Mr Hammond’s self-reported responses on the Oswestry Low Back Pain Disability Questionnaire. Mr Hammond reported that:

    ·the pain is moderate at the moment;

    ·he can look after himself normally but it causes extra pain;

    ·he can lift very light weights;

    ·pain prevents him from walking more than1 kilometre;

    ·(back) pain prevents him from sitting more than an hour;

    ·pain prevents him from standing more than 30 minutes;

    ·because of pain, he has less than 4 hours sleep;

    ·his sex life is severely restricted by pain;

    ·pain has restricted his social life and he does not go out so often; and

    ·pain restricts him to short necessary journeys under 30 minutes.”

31. Dr d’Hotman observed that the Applicant’s spinal condition had the following impacts on his ability to function (Exhibit 1 T 17 p.109):

    “unable to bend forward; trouble sitting any length of time; carrying heavy objects is not advised”.

32. The JCA considered all of the available medical evidence and made the following observations (Exhibit 1 T18 p.113):

    “Medical report completed by GP Dr R d’Hotman (31/3/16) verifies a disc prolapse L4-5 compressing left L5.  Customer reported this injury occurred at work in September 2014.  Customer’s condition was confirmed via subsequent imaging studies (Dr R Yousaf, 30/9/14). Customer reported attending physiotherapy and acupuncture, and underwent steroid injections.  He continues to manage with pain medication and exercises prescribed from physiotherapy.

    Consultation with Orthopaedic Surgeon Dr I Cheung (1/5/15) did not recommend surgery nor did consultation with Dr Parkinson (according to Dr d’Hotman). However, Dr d’Hotman (21/3/16) indicates in a medical certificate that the customer is unlikely to get better without surgery and that he is awaiting this at present.  Dr d’Hotman then notes a lengthy wait is expected.

    Dr d’Hotman indicates symptoms are mainly of low back pain with occasional pain down the left leg.  He also indicates the customer is unable to bend forward, has trouble sitting any length of time, and carrying heavy objects is not advised.

    Dr d’Hotman indicates the condition is expected to persist for more than 24 months, prognosis uncertain.  He notes further that the condition may remain unchanged but will be easily exacerbated and will then deteriorate.  With this in mind and as specialist consultation has not recommended surgery, it is considered unlikely the condition will significantly improve within two years.  Hence, it is regarded as FDTS for the purpose of this assessment.”

33. The JCA was of the view that a 10 point assignment was appropriate (pp.115-116):

    “Medical information (Dr d’Hotman, 31/3/16; Dr I Cheung, 1/5/15) together with the customer’s self-report indicates there is 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: Dr d’Hotman indicates the customer has trouble sitting for any length of time which the customer defined as 20 to 30 minutes

    (c) the person is unable to bend forward to pick up a light object placed at knee height; Dr d’Hotman indicates the customer is unable to bend forward although Dr Cheung indicates he is able to bend such that his hands reach the level of mid-tibia (ie below the knee). Customer reported being unable to bend forward to pick up a light object from the floor or from a coffee table.

    Although the customer’s sitting tolerance does not extend beyond 30 minutes, he remains able to sit for more than 10 minutes and does not meet any other criteria corresponding to a rating of 20 points. Indeed, the customer remains able to perform some overhead activities, move his neck, and bend forward to desk or table height. Hence, in conjunction with bending difficulties detailed above, a 10 point rating is considered sufficient.”

1. At the AAT 1 hearing, the Applicant told the Tribunal that the maximum weight he could lift and carry without pain was 6 kg, but that he was unable to do this amount of lifting or carrying repetitively and struggles with shopping bags – Exhibit 1 T 3 p.14.

2. No information was provided at the hearing which was inconsistent with the state of affairs outlined above.

3. The evidence presented at AAT 1 and this Tribunal suggests that the Applicant’s spinal condition is deteriorating. Dr King at AAT 1 accepted that the Applicant’s spinal function had deteriorated in the twelve months between Dr Cheung’s assessment and the JCA assessment. He was further of the view that on the basis of Dr Cheung’s assessment an impairment rating of 5 points should be awarded, but a rating of 10 points was preferable having regard to the nature of the deterioration as described in the JCA Report – Exhibit 1T3 p.14.

4. This conclusion is buttressed by a comparison of the JCA Reports of 13 July 2015 (Exhibit 1 T12 pp.83-90) and 18 May 2016 (Exhibit 1 T18 pp.112-119).

5. The Respondent contends (SFIC para 6.5) that there is no corroborating medical evidence to support a conclusion that the Applicant met the descriptors for a 20 point rating under Table 4, namely severe functional impairment. The Introduction to Table 4 specifically states that self-reporting of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment.

6. The medical evidence presented does not support a finding that the Applicant meets the requirements of severe functional impairment under Table 4. In particular, even though there was a deterioration in the Applicant’s spinal function from 2015 when the Applicant was examined by Dr Cheung, that deterioration has not been so dramatic as to warrant the awarding of 20 points.

7. In order to be awarded 10 points under Table 4 (moderate functional impairment):

   “ 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).”

8. I agree with the analysis and conclusion reached by AAT 1, the JCA in the report of 18 May 2016 and also Dr Sandra Armstrong of the Health Professional Advisory Unit (Exhibit 3 p.  9) in her first report, that the Applicant should be awarded 10 points. Although Dr Armstrong subsequently opined that five points was more appropriate following a telephone conversation with Dr d’Hotman (Exhibit 6), the preponderance of evidence leads to the conclusion that the preferable allocation is 10 points under Table 4.

9. In reaching this conclusion, I have paid particular regard to the analysis of Dr King at AAT 1 as outlined in paragraphs 25 – 27 of his decision (Exhibit 1 T3 p.14). I adopt his analysis and conclusion as it comports with the evidence before the Tribunal, with the exception of the later report of Dr Armstrong (Exhibit 6).

   Mental health condition

10. It is not contested that the Applicant was diagnosed with PTSD and depression by Dr Una Stephenson prior to the qualification period.

11. The Respondent contends that the finding of Dr King that the Applicant’s mental health condition was not fully treated and stabilised in the qualification period should be affirmed.  Dr King made the following findings – Exhibit 1 T3 p.13:

    “20 The medical evidence suggests that Mr Hammond’s treatment was sub-optimal when he claimed disability support pension. Dr Stephenson described his dose of Lexapro as ‘fairly feeble’ and recommended it be increased, unless there was evidence that he had experienced unacceptable side effects at a higher dose. She also introduced a low dose of a second antidepressant (mirtazapine) with a view to increasing the dose if he tolerates the low dose.  Furthermore, Dr Stephenson indicated that psychological treatment was the most important component of Mr Hammond’s future treatment.  During the hearing, Mr Hammond told the tribunal that he had completed three sessions of psychological treatment in 2014 but had not undertaken any such treatment since then and had not engaged with a psychologist since that time.  He said that he had seen Dr Stephenson on one subsequent appointment (27 April 2016) for medication review and that she had increased the dose of his medication on this occasion.

    21 The tribunal notes that the JCA found that Mr Hammond’s mental health conditions were fully treated and stabilised.  This finding was based on Dr Stephenson’s statement that Mr Hammond’s mental health conditions ‘are not going to yield fast to treatment’. In the view of the tribunal, this is a flimsy basis for finding that Mr Hammond’s complex PTSD and depression were fully treated and stabilised. The evidence suggests that these conditions are quite longstanding.  Dr Cheong (sic) reported that Mr Hammond told him that he had experienced depression since at least 2007. Dr Stephenson indicated that Mr Hammond’s current condition was the consequence of cumulative stresses over the course of his life.  The tribunal appreciates that, in such circumstances, a full recovery will be a protracted process and there might always be some residual symptoms.  However, the evidence suggests that, notwithstanding a long history of depressed mood, Mr Hammond was able to successfully work in the commercial fishing industry until 2014.  Since then he has had to adjust to chronic pain and physical limitations, a stressful and ultimately unsuccessful litigation process and bankruptcy.  There is nothing in Dr Stephenson’s report to suggest that appropriate treatment will not assist Mr Hammond to make at least a partial adjustment to these setbacks over a period of two years.  Dr Stephenson recommended that Centrelink should assist Mr Hammond to undertake ‘a comprehensive and suitable return to work program’ which suggests that she was of the view that his mental health could improve sufficiently to enable him to engage in some form of retraining.

    22 The tribunal therefore finds that, while Mr Hammond’s complex PTSD and depression were fully diagnosed, they were neither fully treated nor fully stabilised when he claimed disability support pension.”

12. Dr King’s reasoning and analysis is flawless, and if that were the only material before this Tribunal, then this aspect of the application could be disposed of accordingly.

13. However, since the decision of AAT 1, the Applicant was examined by Dr Sukumaran, Consultant Psychiatrist. In his report of 27 March 2017 Dr Sukumaran outlined the following diagnosis:

    “Mr Hammond has longstanding untreated symptoms of chronic depression and anxiety. The origin of these symptoms could be traced back to his traumatic childhood when he was subjected to repeated abuse and neglect.  He had multiple traumas in his laterlife including physical assault, domestic violence and multiple incidents of occupational violence.  Due to these adverse early life experiences, Mr Hammond never had the opportunity to develop cohesive sense of self, consequently he had difficulties regulating his emotions, developing trust or have heathy self esteem. I am of the opinion that he has features of complex PTSD…

    Mr Hammond has been receiving pharmacological treatment with antidepressants; his regimen includes Mirtazapine 30mg nocte, Venlafaxine 150 mg mane and Seroquel 25 mg 1 nocte. He is also prescribed analgesic medications including Lyrica and Tramadol.

    Earlier, Mr Hammond has received psychological treatment provided by private psychologist Dr Donna Turnbull when referred by the GP through MHCP.  I recommended restarting the therapy and have contacted Dr Turnbull who agreed to accept the patient.  I would envisage that given the chronicity of symptoms and the complicating factors of pain, multiple losses and psychological stress, this would be quite a lengthy process.  As Dr D’Hotman is currently away on holidays, I was unable to discuss the matter with him.

    In my opinion Mr Hammond has severe functional impact due to:

    -    Complex PTSD and Major depressive disorder – chronic and severe.

    -    He satisfies most of the criteria for a severe functional impact as per the relevant table in social security determination 2011.

    -    He has received appropriate pharmacological treatment for more than 2 years.

    -    Psychological treatment was attempted with limited result, proposed psychological treatment is more likely to be prolonged.

    -    His condition is fully diagnosed, reasonably treated and unlikely to be symptom free in the next 2 years.”

14. Further, the Tribunal has also been provided with a comprehensive analysis of the Applicant’s PBS records by Dr Sandra Armstrong.

15. The Applicant at the hearing relied, almost entirely, on Dr Sukumaran’s report for his contention that he should be awarded 20 points under Table 5 – Mental Health Function.

16. Dr Sukumaran’s report was prepared outside the qualification period, however, the Tribunal is at liberty to admit into evidence medical reports prepared subsequent to that period if they relate to the applicant’s medical condition during the relevant qualification period – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.

17. At first blush, the report of Dr Sukumaran is compelling and presents in concise terms a powerful case for a finding that the Applicant’s mental health condition has been fully diagnosed, treated and stabilised. Insofar as this report was prepared subsequent to the decision of Dr King it sheds new light on the nature and status of the Applicant’s mental health condition.

18. Dr Armstrong carefully examined the Applicant’s medical records. She noted that the Applicant’s MBS records disclosed that he saw a psychologist (A. Eaton) on three occasions in mid-2014, but had not been seen by a psychologist up until 5 May 2017 when the MBS record ceases - Exhibit 3 p.9.

19. Dr Armstrong also provided compelling information on the nature of the Applicant’s medication and his degree of compliance with taking the medication prescribed (p.10):

    “Mr Hammond did not see a psychiatrist until 16/3/16, just before he made his claim for a DSP. Dr Stephenson recommended adding a second antidepressant, and also said his dose of Escitalopram ‘was a fairly feeble dose’, which seems to suggest that she considered an increased dose of the Escitalopram would be beneficial at some time.  The prescribing information for Escitalopram recommends a minimum dose of 10mg and a maximum dose of 20mg. PBS records indicate that Mr Hammond was dispensed 20mg doses of Escitalopram from 10/5/16. However, these records also indicate that he was poorly compliant with Escitalopram, as he was dispensed with enough tablets to last only 15 months over a period of 22 months [16/7/14 till 2/3/17]. It is slightly unusual to add a second antidepressant, rather than switching to an alternative antidepressant as in Dr Stephenson’s recommendation of adding Mirtazapine.  Nevertheless Mr Hammond was also poorly compliant with Mirtazapine, as the PBS records show he was only dispensed with enough tablets for 8 months over a 12 month period [18/3/16 till 2/3/17]. Poor compliance with antidepressants obviously leads to lack of efficacy and often increased symptoms due to withdrawal effects.  Dr Sukumaran’s letter indicate that he believed Mr Hammond was also taking Seroquel 25mg, but his PBS records do not indicate that he was ever dispensed with this dose of Seroquel.  In my 18/5/17 phone conversation with Dr Sukumaran he stated he was not aware that Mr Hammond was not compliant with his prescribed antidepressants and said ‘if someone is not taking their prescribed medications you could not say their condition was fully treated”..

20. The Applicant stated at the hearing that he generally did take the medicine he was prescribed, allowing for times when he forgot to take it. However, he went on to say that some of the medicine he was prescribed was not compatible with his condition and he made a conscious decision not to proceed with the ingestion of such medication.

21. The evidence before the Tribunal suggests that while the Applicant has a mental health condition, and the treatment of this condition is still ongoing, or at least was ongoing during the qualification period. In short, the Applicant’s mental health condition was not fully treated and stabilised during the qualification period.  The fact that the Applicant had not seen a psychologist in the three years between 2014 and 2017, and only had the benefit of completing three sessions prior to that time is itself an indicator that the treatment he requires for his mental health condition has not been delivered. However, perhaps even more serious, is the compelling evidence that the Applicant has been self-medicating during this time. In short, he has not been complying with the dosage of medicine prescribed for treating his mental health condition.

22. The report of Dr Sukumaran is a compelling document, but his analysis is, in part, based on assumptions that were not necessarily correct. This is highlighted in Dr Armstrong’s report quoted above.

23. The material before the Tribunal strongly suggests that the Applicant is in a very difficult situation, and suffers from severe mental ailments.  However, the material also, on the balance, suggests that during the qualification period, his mental health condition was not fully treated or stabilised.  It may be now that the Applicant has had the benefit of being examined by Dr Sukumaran, and receiving expert medical advice, that this state of affairs has changed. However, all that this Tribunal can determine is whether during the qualification period the Applicant reached the necessary threshold for the awarding of impairment points under Table 5.  As stated, the evidence discloses that this threshold has not been met.

    Varicose veins

24. In Dr d’Hotman’s medical report which was completed in support of the Applicant’s DSP claim, at question 6 which asks “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”, the “yes” box was ticked and the condition of varicose veins in the right leg was added – Exhibit 1 T17 p.110.

25. There is very little material before the Tribunal about this condition.  The JCA in the report of 18 May 2016 provided these brief comments – Exhibit 1 T18 p.114:

    “Medical report completed by GP Dr R d’Hotman (31/3/16) verifies a diagnosis of varicose veins right leg.  Customer reported surgery has been suggested however to date he has been unable to afford to do so.  No further details concerning onset, treatment or prognosis have been provided by Dr d’Hotman; however, he notes that the condition is generally well managed and causes minimal or limited impact on ability to function.  Hence, it is considered FDTS for the purpose of this assessment.”

26. The Respondent contends, on the basis of the material presented, that this condition has not been fully treated and stabilised. The Respondent points out that there is no corroborating medical evidence of what treatment, if any, has been undertaken and whether treatment is continuing or planned within the next two years - SSIFC para 6.12 (a).

27. Clearly there is scant evidence about the Applicant’s varicose veins condition other than that set out above.  The minimal evidence of this condition does not permit the Tribunal to conclude that this condition is either fully treated or fully stabilised. Consequently, no impairment points can be allocated.

    Overall Impairment Rating

28. The Tribunal is only able to allocate points to the Applicant under Table 4. As only ten points can be allocated the Applicant does not satisfy s 94(1)(b) of the Act during the qualification period. It follows that as the Applicant has not been allocated 20 or more impairment points, and therefore does not qualify for the DSP, it is not necessary to consider if the Applicant has a continuing inability to work.

    CONCLUSION

29. The evidence before the Tribunal discloses that the Applicant is a sick man.  He suffers both physical and mental ailments, and has been through a series of traumas during his life. The regulatory regime governing the granting of the DSP is very clear and strict.  The scope for the Tribunal to exercise a beneficial discretion in determining DSP review applications is limited. The regulatory regime for the granting of the DSP has the virtues of simplicity and certainty, but, at times, can result in what some might perceive as a harsh outcome.

30. It is self-evident that the Applicant requires ongoing medical treatment, and the exercise of compassion and understanding by those in authority when dealing with him.  It is hoped that despite the outcome of this application, the Applicant will continue with his medical treatment, and if the diagnosis of Dr Sukumaran can be corroborated by other evidence, then the Applicant would be at liberty to make a further and more soundly based application for the DSP.

    DECISION

31. The decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

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

Associate

Dated: 10 August 2017

Date of hearing:	26 June 2017
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers