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

Helm and Secretary, Department of Social Services (Social services second review) [2017] AATA 1439 (8 September 2017)
Division:GENERAL DIVISION
File Number: 2016/6741
Re:Timothy Helm
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso

Date:8 September 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 – meaning of “fully” – decision under review affirmed
LEGISLATION
Social Security Act 1991, ss 26, 94
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011
REASONS FOR DECISION
Senior Member J Sosso
8 September 2017
INTRODUCTION

Mr Timothy Helm (the Applicant) seeks a review of the decision of the Social Services and Child Support Division of this Tribunal (AAT 1) of 30 August 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).
The Applicant lodged a claim for the DSP on 27 May 2015 – Exhibit 1 T24 p.189. This is the fourth time that the Applicant has lodged a DSP claim since 2010 – Exhibit 1 T35 p.272.
The Applicant was born in 1965 and is the primary carer for his 15 year old daughter, who lives with him five days each week. He lives on his family’s farm in northern New South Wales near to his aged and unwell mother of 91 years and has no close friends – Exhibit 1 T2 p.9 and T24 pp 193,200.
The Applicant has a nursing diploma, and apart from caring for his daughter, previously was engaged in farming activities and was a Disability Support Worker until approximately 2005 – Exhibit 1 T6 p.90, T7 p.94.
The Applicant applied for the DSP in 2010, and two medical reports were prepared in support of his claim. The first was from Dr Christopher Theodore, General Practitioner and is dated 18 August 2010 – Exhibit 1 T4 pp 73-80. Dr Theodore had been treating the Applicant since April 1990, and, accordingly, at the time of his report had known the Applicant for a decade.
Dr Theodore diagnosed the Applicant with depression and anxiety, and noted that he had a history of Family Court and neighbourhood disputes as well as being a single father caring for a dependent child. The symptoms of the Applicant’s medical condition were severe insomnia, poor appetite and agoraphobia. The impact on the Applicant’s ability to function was stated to be poor concentration, cognition and communication as well as being “locked in at home” – Exhibit 1 T4 p.74.
Material presented to the Tribunal indicates that since 2004 the Applicant has been prescribed medication to deal with his anxiety and depression. In May 2004 he was prescribed the anti-depressant medication, Oxazapam and in July 2004 Zoloft. His anti-depressant medication was changed again in November 2005 to Avanza and then in August 2006 to Cipramil. He was prescribed Cipramil until October 2009 – Exhibit 1 T19 p.174.
The second medical report was prepared by Dr Matthew Wagner, a Psychologist and is dated 27 October 2010. Dr Wagner had only been treating the Applicant since June 2010, or approximately four months when he wrote his report.
Dr Wagner opined that the Applicant was suffering from an adjustment disorder with mixed anxiety and depression. This disorder was related to a prolonged child custody dispute during which the Applicant was said to have been verbally attacked and vilified. The symptoms of the disorder included major sleep disruption, liability in mood, deficits in memory, concentration and motivation as well as generalised anxiety and agitation. The diagnosed impacts on ability to function were said to be a reduced ability to “engage effectively in mutual obligation activities” – Exhibit 1 T5 pp.82-83.
The Applicant made a claim for the DSP on 8 November 2010 (Exhibit 1 T6 pp.89-90) and was interviewed by a Job Capacity Assessor (JCA) on 7 December 2010. At that time, the Applicant’s work capacity was assessed as 0-7 hours per week until 7 May 2011 to allow him to engage in further psychological counselling to stabilise his depressive/anxiety state. This was to be followed by a further 6 month period at 8-14 hours per week. The JCA made these observations Exhibit 1 T7 p.95:
“Client lives in stable accommodation with his 8 year old daughter for whom he has shared care responsibilities. Client holds a valid driver’s licence and owns a vehicle.
Client reported complex personal issues pertained to a prolonged custody battle which have in turn significantly contributed to his current depressed mood and anxiety symptoms. Client reports symptoms of disturbed sleep, social isolation, mood swings, increased irritability & poor concentration. Client has been engaging in psychological counselling with Matthew Wagner, Psychologist since July 2010. Client reports having in the past administered medication, however, could not recall name of this medication or how long ago he had ceased the same.”
Further medical reports were prepared by Dr Theodore and Dr Wagner in support of the Applicant’s next claim for the DSP. Dr Theodore’s next report is dated 29 September 2011. Whilst the Applicant’s depression and anxiety conditions remained, the treatment of that condition had increased from counselling to also the prescription of Mogadon - Exhibit 1 T8 p.98. Dr Wagner’s report, which is dated 30 January 2012, included the same diagnosis and information as a year earlier – Exhibit 1 T9 pp.104-111.
The Applicant apparently claimed the DSP in 2013, and, again, Centrelink proforma medical reports were prepared by Dr Theodore and Dr Wagner.
By this stage Dr Theodore listed two conditions. The first was depression and there is nothing in his medical report of 21 January 2013 which adds to his previous reports on this condition. However, in this report he lists a second condition; back pain. Dr Wagner’s answer to the date of onset appears to be less than one year, but this is not clear – Exhibit 1 T12 p.134. Dr Wagner states that the current symptom of this condition was “severe pain” and states that the current treatment was analgesics and exercise. The impact on ability to function was stated to be “pain sitting & standing” – pp.134-136.
Dr Wagner, by this stage, diagnosed the Applicant with major depressive disorder and noted that his history now included the care of his elderly mother. He also noted that the Applicant had a chronic back issue – Exhibit 1 T11 pp.123-126.
The Applicant was again assessed by a JCA on 31 January 2013. The JCA observed -Exhibit 1 T13 pp.139-140:
“Customer reports he has not seen a psychiatrist or clinical psychological for assessment/treatment etc. This condition is considered therefore not to be fully diagnosed, treated or stabilised.”
This deficiency was rectified when the Applicant was examined by Dr Julius Petroff, Psychiatrist, who became his patient on 23 August 2013. Dr Petroff completed a medical report in support of the next claim the Applicant made for the DSP.
Dr Petroff diagnosed the Applicant with one condition which he described as – Exhibit 1 T14 p.148:
“Adjustment disorder with anxious and depressed moods, chronic”.
Dr Petroff stated that the proposed future treatment of this condition would be a combination of anti-depressants and counselling – p.149.
In the question dealing with the conditions that have a significant impact on the patient’s ability to function, Dr Petroff noted in addition to adjustment and personality disorder, the following (p.147):
“compound fracture tibia-fibula…
Alcohol use disorder – psychological dependence.”
The Applicant was further assessed by a JCA on 15 January 2014.
The JCA noted that the Applicant had lower limb deficiencies, and referred to the compound fractures noted in Dr Petroff’s report. The JCA made the following comments – Exhibit 1 T16 p.161:
“Onset: Client stated September 2013, farm machinery accident
Symptoms and Functional Impact: unable to weight bear requires crutches, pain Treatment
Past: Client stated he had surgery and plates inserted into R leg
Current: Client stated pain medications, exercise, community transport to attend appointments due to not being able to drive.”
The Tribunal has been presented with an undated medical report, and although signed, it is not clear who the medical professional is who prepared the document. However, at Question 1, the author stated that the Applicant has been a patient since 17 April 1990 – Exhibit 1 T17 p.168. As this was the date Dr Theodore first treated the Applicant, the Tribunal proceeds on the basis that he is the author of this document.
Dr Theodore stated that the first medical condition the Applicant was then suffering from was pain in the right knee, and that the date of onset was 2013. The treatment for the condition was Panadol Osteo and Endone. The symptom of this condition was said to be severe pain– Exhibit 1 T17 pp.169-170.
In a letter dated 17 March 2015, Dr Richard Hudson, Orthopaedic Surgeon with the Lismore Base Hospital wrote to Dr Theodore about the Applicant’s lower limb injuries. Dr Hudson made the following observations – Exhibit 1 T21 p.176:
“Timothy Helm has been assessed in the Fracture Clinic on various occasions between 29 October 2013 and 21 October 2014.
The injury to his right lower limb occurred on 9 October 2013 when his right leg was jammed between a back hoe and a wall. He was admitted under Dr Frelhart and ended up having internal fixation of a right tibial plateau fracture using both a posteromedial and an anterolateral approach.
He was discharged from hospital on 14 October 2013 and was assessed in the Fracture Clinic on 29 October 2013, 05 November 2013. 03 December 2013, 15 January 2014 and 21 October 2014.
When last assessed in the Fracture Clinic on 21 January 2015 at 15 months post fixation of the tibial plateau he had increased pain with activity. X-rays indicated no significant problem and the fracture had united.
He was offered an arthroscopic examination and removal of hardware, but was going to have a think about whether or not he wanted to have this carried out. At this stage I do not think he has resumed work.”
The Applicant’s current DSP claim was lodged on 27 May 2015. In the claim, the Applicant estimated that he cared for his daughter 57% of the time – Exhibit 1 T24 p.200. While the Applicant wrote that he had “nil” disabilities, he listed the treatment he was receiving as: “counselling 5 yrs, back pain severe, knee pain x 2, sleep disorder, anxiety depression & panic adjustment disorder” – Exhibit 1 T24 p.204.
Dr Theodore completed a medical reported dated 4 May 2015 in support of the Applicant’s DSP claim.
Dr Theodore diagnosed the Applicant suffering from two conditions. The first was back pain the onset of which was listed as “years”. This condition was being treated with Panadol and exercise, but previously the Applicant was taking Panadol Forte, Targin and having “Physio therapy”. The underlying cause of this condition was said to be “manual labour” – Exhibit 1 T22 pp.179-181.
The second diagnosed condition was bilateral knee pain. The Applicant was being treated with Panadol and exercise. Dr Theodore listed the underlying causes of this condition as a tractor accident for the right knee and being kicked by a camel for the left knee – Exhibit 1 T22 pp.182-184.
Finally Dr Theodore noted that the Applicant was suffering from “Depression. Saw Dr Petroff” – Exhibit 1 T22 p.185.
Dr Theodore was subsequently interviewed by Centrelink and his responses are contained in a Centrelink document headed “Additional Medical Evidence for Disability Support Pension Record”, which is dated 12 November 2015 and contains the following information – Exhibit 1 T27 p.240:
“8. Information provided by health professional
Diagnosis
back pain
Client has had CT scan December 2014 which showed degenerative changes, oseteophyte formation, disc space narrowing, old wedging of vertebrae L1, 2, 3.
No specialist assessment to date.
Prognosis/nature of condition
SA012; persist greater than 24 months and within 2 years functional impacts remain unchanged.
In discussion, Dr Theodore advised functional impacts may improve with further treatment, including planned pain management clinic intervention
Symptoms/functional impacts
back pain, mild/moderate impact on functional abilities.
Dr Theodore advised client was not suited to heavy manual labour, but likely could manage light labouring work.
Past/current/planned treatment
Past: pain relief medication; some physiotherapy but made little difference to client’s symptoms.
Current: simple analgesics, exercises
Planned: Dr Theodore advised he referred the client to a multidisciplinary pain clinic earlier this year, and the client is waiting for notification of when he can commence. Client may also benefit from use of anti-inflammatory medication.”
Subsequently the Applicant was assessed by a JCA. The JCA interviewed the Applicant personally, reviewed the written material and had a discussion with Dr Theodore on 11 November 2015.The material set out immediately above is likely to be a synopsis of the discussion between the JCA and Dr Theodore.
The JCA having considered all the material pertaining to the Applicant’s spinal disorder (back pain) reached the following conclusion – Exhibit 1 T28 p.242:
“Prognosis: According to the MR, the impact of this condition on the client’s ability to function is expected to persist for more than 24 months and within the next 2 years the effects of the condition on the client’s ability to function is expected to remain unchanged. In a discussion with the assessor on 11/11/15, Dr Theodore advised that the client’s functional abilities may improve with further treatment, including pain clinic interventions.
The condition is fully diagnosed. Client has not had specialist assessment, and has been referred to a pain clinic; the client’s functional capacities may improve with such intervention and thus the condition is considered not yet fully treated and stabilised.”
The JCA gave the following prognosis for the Applicant’s knee condition (p.243):
“According to the MR (Dr Theodore 4/5/15), the impact of this condition on the client’s ability to function is expected to persist for more than 24 months and within the next 2 years the effects of the condition on the client’s ability to function is expected to remain unchanged.
The condition is fully diagnosed. There is no confirmation that the client has undertaken suitable physiotherapy intervention, and he may proceed to right knee arthrosopic surgery within the next 2 years, and thus the condition is not yet considered fully treated and stabilised.”
The JCA then carefully examined the material dealing with the Applicant’s psychiatric disorder. In particular he referred to a more recent report by Dr Brian Witt of 24 February 2015. Dr Witt outlined the medication that the Applicant had been prescribed for his depression and anxiety symptoms since 2004 and made these observations – Exhibit 1 T19 p.174:
“Tim was prescribed Diazepam on 27/12/08 for worsening panic attacks and anxiety symptoms and Temazepam on 8/4/09 for has anxiety related insomnia. Tim continues to suffer from his panic attacks and his insomnia. Tim has regularly seen Psychologist Mat Wagner over the past 5 years to help Tim manage his anxiety and depression symptoms.”
After noting the available medical evidence, the JCA made these observations (at pp. 243-244):
“According to the available medical evidence, the impact of this condition on the client’s ability to function is expected to persist for more than 24 months and within the next 2 years the effects of the condition on the client’s ability to function is expected to remain unchanged.
The condition is fully diagnosed. Client has undertaken reasonable treatment and the condition is not expected to resolve, therefore the condition is considered fully treated and stabilised.”
The JCA then considered all the material pertaining to the impact of the Applicant’s mental health condition on his functional capacity and concluded that a total impairment rating of 10 points should be assigned - p.245.
The Applicant’s claim for the DSP was formally rejected on 13 November 2015 – Exhibit 1 T29 p.249.
On 16 February 2016 the Applicant requested review of the original decision and supplied further medical documentation in support of his application – Exhibit 1 T33 p.256.
On 23 March 2016 a further JCA Report was prepared. The JCA took into account the new medical evidence which related to the Applicant’s spinal and lower limb deficiencies. No new medical evidence was adduced in relation to the Applicant’s psychiatric disorder.
In relation to the Applicant’s spinal disorder the JCA determined (at p.259):
“Mr Mico, physiotherapist, in his report (12/01/2016) confirmed that the client underwent a physiotherapy assessment on 04/04/2013 with further therapy consisting of 3 hydrotherapy sessions, a home programme of stretches and exercises as well as advice and education. Mr Mico indicated that the client at the time of referral had reported to be suffering from low back pain since September 2012 when he sustained a fall onto his buttocks.
Report from the Southern Cross University Health Clinic (5/01/2016) by Ms Devine confirmed that the client had attended 8 student osteopathy appointment between 12/09/2012 and 12/12/2012.
Opinion/Current Recommendations:
Based on the new allied health and other reports confirmation of past treatment is gained. However given there is no updated details related to if the client has commenced participation in a pain management program or if he has seen a medical specialist; for the purposes of this assessment the condition remains permanent and full diagnosed, but not fully treated or stabilised.”
In relation to the lower limb deficiencies, the JCA determined that, having regard to the new medical evidence, that this condition was fully diagnosed, treated and stabilised (at 260):
“Dr Henzell, Orthopaedic Registrar (Lismore Base Hospital); in her report (18/02/2016) noted that the client attended for a review on this date. She confirmed a diagnosis of fractured tibia/fibula and knee osteoarthritis.
In relation to the fracture condition Dr Henzell stated that the hardware put in on the 11/10/2013 has enable the bone to heal and does not require further surgery.
In relation to the osteoarthritis condition Dr Henzell stated that the client currently has mild-moderate osteoarthritis with bilateral knee pain. She indicated that at this stage he is considered too young for a knee replacement currently.
In conclusion she noted that the conditions are stable and that the customer has taken all reasonable steps for his treatment.
Mr Mico, physiotherapist, in his report (12/01/2016) confirmed that the customer underwent a physiotherapy assessment on 12/02/2014 and had 4 treatment sessions consisting of gait training, range of motion, strengthening exercises as well as education and advice.
Opinion/Current Recommendations:
Based on the new medical and allied health reports which confirm past treatment and confirm that the client does not require surgery the condition is now considered to be permanent and fully diagnosed, treated and stabilised.”
The JCA assigned five impairment points for the Applicant’s lower limb function and ten points for the mental health function. No points were assigned for the spinal condition. Accordingly, the Applicant’s total impairment rating was 15 points – Exhibit 1 T34 pp.263-264.

This assessment was upheld by an Authorised Review Officer (ARO) on 14 April 2016 – Exhibit 1 T35 p.268. The Applicant subsequently provided some further medical information, but the ARO, on 3 May 2016, determined to affirm the original decision – Exhibit 1 T36 p.273.
On 23 June 2016, the Applicant applied to AAT1 for review and the matter was heard in Brisbane on 30 August 2016. The Member conducting the review, Dr A Bordujenko, affirmed the decision and likewise assigned 15 impairment points for the Applicant’s loss of function – Exhibit 1 T2 pp. 7-14.
This matter was heard in Brisbane on 19 July 2017. The Applicant was self-represented and participated by teleconference. The Respondent was represented by Ms Maleah Underhill. Neither the Applicant or Respondent called witnesses.
ISSUES TO BE DETERMINED
There are, potentially, three broad issues to be determined:
(a)does the Applicant have any physical, intellectual or psychiatric impairments that were at the time he lodged his claim (27 May 2015) or 13 weeks thereafter (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
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.
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.
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).
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).
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).
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).
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).
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).
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.
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
The Respondent accepts that the Applicant has impairments and therefore satisfies s 94(1)(a) of the Act – Secretary’s Statement of Facts and Contentions (SSFC) para 39. Having considered the material presented, the Tribunal agrees that this concession is soundly based.
Spinal Condition
The background to the Applicant’s lower back condition has been set out above. A CT scan of the Applicant’s lumbar spine conducted in December 2014 identified widespread degenerative disease – Exhibit 1 T18 p.173.
The Applicant was examined by Dr Christine Campbell in May 2015. A bone densitometry of the lumbar spine and proximal femora was effected by X-ray. The lumbar spine showed degenerative change and compression deformity and the proximal femur disclosed osteopaenia - Exhibit 1T23 p.187.
There is no doubt that the Applicant’s lower back condition causes him pain and discomfort and has a significant and deleterious impact on his general movements, in particular standing, sitting and walking. When the Applicant was interviewed by the JCA on 10 November 2015 he reported pain with manual tasks, including hanging clothes, lifting clothes out of a front-loading washing machine, sweeping and bending below knee height – Exhibit 1 T28 p.242. The Applicant informed AAT 1 that he gets in and out of chairs in a rolling motion and that he doesn’t have a dinner table, but he eats on the lounge in front of the television. Further, he said that he can only sit for 15 minutes and then has to move. He confirmed that his back hurts with movement, and that sitting, standing and walking causes pain – Exhibit 1 T2 p.12.
The Applicant confirmed this state of affairs at the hearing. He also explained that although he lived on the family farm with his daughter, he didn’t manage the farm, look after the cattle or do any manual labour. Any manual exertion of that type, he stated, was beyond him.
The Respondent does not accept that the Applicant’s spinal condition was fully diagnosed, treated and stabilised during the qualification period – SSFC para 65.
The Applicant’s spinal condition is of longstanding. Dr Theodore, who has been the Applicant’s GP for many years, noted in the various medical reports set out above that this condition had been treated with Panadol, Targin, physiotherapy and exercise over an extended period of time.
The Applicant was treated by Mr Roco Mico, physiotherapist, in 2013, subsequently had three hydrotherapy sessions and was treated in 2012 on eight occasions at the Southern Cross University by student osteopaths.
Dr Theodore reported in December 2015 that the Applicant had been referred to a pain management clinic earlier that year. The Applicant tendered documents which it seems may have been prepared by a community legal service or Legal Aid – Exhibit 3. The documents ask specific questions of Dr Theodore and Dr Wagner with respect to the Applicant’s DSP claim.
Under the heading “Spinal Impairment”, a typewritten question is posed:
“In your opinion is it LIKELY or UNLIKELY that reasonable treatments (such as attendance at a pain clinic) for Mr Helm’s spinal condition will result in significant improvement in his level of impairment within 2 years that would allow him to return to work of 15 hours per week in any job on a sustainable basis? Why?
The handwritten response of Dr Theodore to the first question was “No”, and to the second question: “Pain not likely to resolve”. In response to the next question, which was when did Dr Theodore first know of this, he replied: “13/1/15”.
Dr Theodore’s response directly contradicts the information he provided Centrelink in November 2015 and which is set out above – Exhibit 1 T27 p.240. At that time he had referred the Applicant to a multidisciplinary pain clinic and was considering prescribing anti-inflammatory medication.
The Tribunal, in these circumstances, is confronted with contradictory material from the GP that the Applicant relies upon. Moreover, there is no evidence before the Tribunal as to whether the Applicant ever attended the pain clinic he was referred to, and, if he did, what occurred.
The Respondent made the following submission – SSFC para 65:
“It is not clear from the evidence if the Applicant has suffered a further injury to his back prior to lodging his claim for DSP, causing an exacerbation in pain levels. In any event, the Secretary contends that absent specialist consultation and participation in a pain clinic as anticipated by Dr Theodore, it is not open to this Tribunal to conclude that the Applicant’s back condition was fully treated and stabilised within the qualification period.”
The Tribunal accepts that this submission is soundly based and concludes that the Applicant’s lower back condition was not fully treated and stabilised within the qualification period.
Lower limb conditions
The Respondent contends (SSFC para 76) that the Applicant’s lower limb conditions were not fully treated and stabilised during the qualification period.
The Respondent draws the Tribunal’s attention to the report of Dr Theodore of 4 May 2015 where it is stated that the Applicant had been referred to Dr Ashwell, Orthopaedic Surgeon, but no date was recorded in respect of a consultation – Exhibit 1 T22 pp.182-183. In short, the Respondent characterises Dr Theodore’s diagnosis of the Applicant as “presumptive” – SSFC para 72.
The Applicant was examined by Dr Henzell (Orthopaedic Registrar) in February 2016, and she opined that no further surgery was required but that the question of appropriate medication should be discussed with his GP. Moreover, Dr Henzell opined that the Applicant was too young for knee replacement surgery and all reasonable treatments had been undertaken in respect of his lower limb conditions – Exhibit 1 T32 p.253.
Whilst it is the case that subsequent to the qualification period the Applicant was still being treated for his lower limb conditions, the preponderance of the medical evidence suggests that by the time he lodged his claim, his lower limb conditions were fully treated and stabilised.
The evidence presented to the Tribunal suggests that the Applicant suffered multiple injuries to his lower limbs over an extended period of time: 1995 – 2013. The “tractor accident” and being “kicked by a camel” as noted by Dr Theodore in May 2015 (Exhibit 1 T22 p.184) are but two examples of multiple incidents which impacted on the lower limbs of the Applicant.
The evidence further discloses that the Applicant received consistent and appropriate medical care and intervention during that period of time. Importantly, the Applicant attended at the Fracture Clinic of Lismore Base Hospital on various occasions between October 2013 and January 2015 and was treated, inter alia, by Dr Hudson (Orthopaedic Surgeon).
The Respondent refers the Tribunal to the Tribunal determinations of Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 and Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133.
Clearly the issue is whether the Applicant’s lower limb conditions were fully diagnosed, treated and stabilised during the qualification period. As previously noted, medical and other evidence generated after the conclusion of the qualification period can be received and taken into account, but only if it pertains to the Applicant’s medical condition and functioning capacity during the qualification period and not thereafter.
The real issue is what does “fully” mean in the context of the Applicant’s medical treatment.
Subclauses 6(5) and (6) explain what fully diagnosed, fully treated and fully stabilise connote. It is also clear in both subclauses the adverb “fully” precedes and qualifies the words diagnosed, treated and stabilised.
However, “fully” does not import concepts of conclusively, totally, finally or definitively. If such a standard was required, then in many cases a person seeking the DSP would be placed in the invidious and unfair position of undergoing exhaustive medical treatments and analysis, which, having regard to their medical and financial state, might be difficult or impossible to achieve.
The better approach to interpreting “fully” is to approach the task in a common sense and practical manner. The question to be answered is straightforward. Has the applicant sought appropriate medical intervention from the relevantly qualified medical practitioners and have those practitioners diagnosed the applicant’s condition(s), prescribed the required medicine/treatment and has the applicant complied with the required treatment? In short, if the applicant determines to self-medicate, or refuses treatment or further tests that are required to conclusively determine an applicant’s state of health, then it cannot be said that the applicant has been fully diagnosed, treated and stabilised.
The fact that further medical intervention might be advantageous to achieve an optimal result is not fatal to a determination that an applicant has met the threshold standard of diagnosis, treatment and stability. In short a standard of clarity rather than optimal finality is implicit when reading and applying the Impairment Tables in a manner that achieves the broad social, policy and financial goals underpinning the Determination.
In this matter, the Applicant had been undergoing appropriate and comprehensive medical treatment for his lower limb conditions for some time. During that time he repeatedly injured himself, but on each occasion he sought, and received, appropriate medical treatment from the relevantly qualified medical practitioners. Clearly, ongoing treatment will be required and also clearly the optimal treatment for his lower limb conditions may not have been achieved by the conclusion of the qualification period. The fact that Dr Henzell opined in January 2016 that by then all reasonable treatments had been undertaken, should not be taken to mean that prior to January 2016 that state of affairs did not exist. Indeed, reading the evidence her diagnosis reflects the obvious having regard to the extensive treatment the Applicant received at the Lismore Base Hospital over a period of 18 months.
Also, the fact that the Applicant declined in 2015 to have an arthroscopic examination and removal of hardware is not fatal to his claim. There is no suggestion that if the Applicant underwent that surgical procedure his condition would have markedly improved. In short it was an option that he was given which he declined. Like all patients when provided with an option by a medical practitioner, he was entitled to decline it. In short, there is no suggestion that adopting this course of action was a precondition for his lower limb conditions being resolved.
Dr Bordunjenko at AAT1 determined that the Applicant’s lower limb conditions should be assigned five impairment points under Table 3 – Exhibit 1 T2 p.14. This comports with the conclusions of the JCA in a report dated 23 March 2016 – Exhibit 1 T34 p.263.
In the JCA Report of 23 March 2016 it was observed that the Applicant had difficulties climbing stairs and was unable to stand for more than 10 minutes – Exhibit 1 T34 p.263.
Dr Bordunjenko observed that the Applicant, following his 2013 accident, required the use of crutches for two years, but by 2016 walked without the aid of a stick but “lurches” and feels unstable at times. His walking capacity varied but was anywhere from 20 to 200 metres. The Applicant had purchased a stationary push bike to improve his stamina, and watches the beef cattle on his familiy’s farm. He informed Dr Bordunjenko he could manage walking 100 metres, but if he had to walk 400 metres it would cause a lot of pain and incapacity the next day.
The Applicant gave a somewhat different account at the hearing of 19 July 2017. He denied that he walked around the family property to check the cattle and also denied that he used a walking stick. He insisted that he still used crutches and that his condition varied each day, such that it was impossible to predict what he could do from day to day.
During cross-examination the Applicant admitted that he had given wrong information to AAT 1 because he was embarrassed about aspects of his condition.
A perusal of Table 3 clearly indicates that the level of impairment suffered by the Applicant fits the mild functional impairment descriptor, and an assignment of five impairment points is appropriate.
Awarding 10 impairment points is not appropriate as the evidence discloses that at the time he lodged his claim he:
(a)was able to walk a distance outside his home (potentially 200 – 400 metres);
(b)was able to use stairs or steps without assistance;
(c)was able to stand for more than 5 minutes;
(d)could drive a motor vehicle and walk around a shopping centre;
(e)could move around independently using crutches, when he needed to.
Having regard to the Applicant’s admission that he was less than fully frank to AAT 1, some caution needs to be exercised in accepting his version of his functional capacities without some corroborating material.
Nonetheless, the Tribunal accepts that the Applicant does have lower limb ailments which have resulted in a mild impact on his functional abilities.
Mental health condition
Mental health function is contained in Table 5 of the Impairment Tables. Relevantly, the Introduction to Table 5 provides that a diagnosis of the condition must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist, if the diagnosis has not been made by a psychiatrist.
As set out above, the Applicant was diagnosed by Dr Petroff, a psychiatrist, with an adjustment disorder, with anxious mood and personality disorder. In addition, Dr Wagner, a psychologist, also diagnosed the Applicant as having an adjustment disorder with anxiety, depression, panic attacks and agoraphobia.
Dr Witt set out in his report the extensive history of anti-depressant medications that had been prescribed for the Applicant over more than a decade. The evidence before the Tribunal discloses that the Applicant has undergone regular (usually once a month) psychological counselling since, at least, 2010, and Dr Wagner has trialled the Applicant on numerous medications (mostly, it would seem, without success) and other strategies (exposure therapy, relaxation strategies etc).

Despite repeated prescription of numerous medications and extensive professional intervention, the undisputed diagnosis of the professionals who have examined the Applicant is that his mental health condition is unlikely to be resolved, and certainly unlikely to be resolved within the next two years.
It is in this context that the Respondent concedes, correctly, that the Applicant’s mental health condition was fully diagnosed, treated and stabilised during the qualification period – SSFC para 48.
There is no doubt that the Applicant has a range of mental health issues that impact on every aspect of his life.
The Applicant told the JCA that while he cares for his daughter he sometimes neglects good nutrition for himself – Exhibit 1 T28 p 245. At the hearing the Applicant informed the Tribunal that he doesn’t take care of himself and this included not brushing his hair and going two or three weeks without having a shower.
All of the evidence presented to the Tribunal, including the testimony of the Applicant at the hearing, suggests that he has no social or recreational activities, has little, if any, contact with his neighbours, has difficulty leaving his home and when he travels to town to buy groceries is “freaked out by things” - Exhibit 1 T2 p. 9 T28 p.245.
The Applicant’s interpersonal relationships could be characterised as limited and unsuccessful. He reported to the JCA that he lost all his friends in recent years and avoids people he knows when he travels to town – Exhibit 1 T28 p.245. Apart from his daughter, his only other regular contact is with his mother who rings him five times a day to manage her own needs – Exhibit 1 T2 p.10.
The evidence also suggests that the Applicant has poor concentration and has difficulty remaining task focused - Exhibit 1 T14 p.149, T28 p. 245. The Applicant at AAT 1 said that he was no longer able to multitask, but now he needs to concentrate on each and every task to get it done – Exhibit 1 T2 p.10.
The Applicant cares for his daughter five out of seven days each week. This includes making meals, or at least he was still doing so during the qualification period. However, while he was able to perform these tasks, other ordinary decision-making roles were often beyond him. He informed the JCA that he is sometimes late paying bills and gets moody, frustrated and angry – Exhibit 1 T28 p. 245. Dr Petroff noted in 2013 that the Applicant suffered from poor stamina, irritable moods and feeling overwhelmed – Exhibit 1 T14 p.149.
As a result of these symptoms, the Applicant advised the JCA that he would have difficulty interacting with others in the workplace – Exhibit 1 T14 p.245.
The Tribunal was assisted by the report of Dr Wagner dated 12 June 2017 – Exhibit 3. Dr Wagner opined on the level of the Applicant’s mental health impairment during the qualification period.
Dr Wagner opined that the Applicant’s mental health condition had a moderate impact on the following functions: self-care and independent living, concentration and task completion and behaviour planning and decision-making. Dr Wagner opined his mental health condition resulting in severe functional impacts on social and recreational activities and travel, interpersonal relationships and work/training capacity.
In order to be assigned an impairment rating a person must have the requisite difficulties with most of the enumerated tasks/activities.
Proceeding on the most beneficial interpretation of the evidence, and accepting the opinions of Dr Wagner, the Applicant cannot meet the requirement of severe functional impact, as his mental health condition does not result in severe difficulty with most of the enumerated tasks/activities in the severe functional impact table.
Clearly the Applicant has significant mental health issues. It is not clear if his condition is slowly deteriorating or not, however the evidence does not support the assigning of 20 points as the Applicant despite his many problems still lives independently, cares for his daughter (who is now 15) most days of the week, assists his mother (who is reliant on him), can still travel into town and engages in shopping and related activities. Moreover, although he has difficulty concentrating and multitasking, he can still pay the bills and generally manage his affairs.
The Applicant presents as a borderline case in terms of the assigning of impairment points between moderate and severe functional impact. The preponderance of evidence, nonetheless, supports the assigning of 10 points.
Although the Tribunal assigns the Applicant 10 points under Table 5, it may well be that with the progression of years that the functional impact of his mental health condition will become severe. This, of course, would need to be reflected in medical reports from those practitioners who have been treating him over a prolonged period. Dr Wagner’s June 2017 report does not support such a diagnosis, but if the Applicant’s mental health condition deteriorates further, it would be open for a new DSP application to be made supported by the appropriate medical evidence.
Overall Impairment Rating
The Tribunal is able to allocate points to the Applicant under Tables 3 and 5. As a total of 15 points can be assigned, 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.
DECISION
The decision under review is affirmed.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

........................[Sgd]................................................
Associate
Dated: 8 September 2017

Date of hearing: 19 July 2017

Applicant: By phone

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1439

8 September 2017

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Date of hearing:	19 July 2017
Applicant:	By phone
Solicitors for the Respondent:	Department of Human Services