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

Hurst and Secretary, Department of Social Services (Social services second review) [2020] AATA 3132 (25 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7190
Re:Patricia Hurst
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:25 August 2020
Place:Perth

The reviewable decision, being the AAT1 decision dated 4 October 2019, is affirmed.
............................[sgd]............................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant’s conditions
fully diagnosed, fully treated and fully stabilised – whether applicant has severe impairment – musculoskeletal conditions – whether applicant has continuing ability to work – whether applicant has completed program of support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7, 7(2), 7(3)–(5)
Social Security (Administration) Act 1999 (Cth) – sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Tables 2-5, ss 3, 5(2), 6(1), 6(3), 6(4)–(8), 8(1), 8(2), 10(1)
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Gallacher v Secretary, Dept of Social Services [2015] FCA 1123
Larkin and Secretary, Department of Social Services [2018] AATA 342
Pignat and Secretary, Department of Social Services [2017] AATA 2745
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide – Chapter 3
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension – Section 3.6.3, topics 3.6.2.20, 3.6.3.05
REASONS FOR DECISION
L M Gallagher, Member
25 August 2020
BACKGROUND

On 12 June 2019, Mrs Hurst lodged a claim for Disability Support Pension (DSP) with the (then) Department of Human Services (now, the Agency)[1] (R1, T18 pages 147-177 and T33, page 215).
[1] The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known, as the ‘Department of Human Services’.
Following an assessment of DSP medical eligibility on 27 June 2019, the Agency deemed that the medical conditions presented, being Mrs Hurst’s spinal condition and chronic lower back pain did not appear to meet the requirements to proceed to a job capacity assessment (JCA) on the basis that she was manifestly medically ineligible[2] (T19).
[2] Refer further to topic 3.6.2.20 of the Guides to Social Policy Law: Social Security Guide (the Guide) regarding manifest grants and rejections for DSP and reasons for manifest eligibility and ineligibility.
On 12 July 2019, the Agency rejected Mrs Hurst’s claim for DSP on the basis that she did not have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) (the Impairment Tables) (R1, T20). On the same date,
Mrs Hurst requested an internal review of the Agency’s decision (R1, T33, page 218).
On 22 July 2019, an Authorised Review Officer (ARO) of the Agency affirmed the Agency’s decision dated 22 July 2019 (R1, T23). The ARO did not consider Mrs Hurst’s claimed conditions to be permanent and therefore an impairment rating could not be assigned to those conditions.
On 19 August 2019, Mrs Hurst applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the ARO’s Decision dated 22 July 2019 (R1, T25).
On 4 October 2019, the Tribunal’s Social Services & Child Support Division (AAT1) affirmed the ARO’s Decision dated 22 July 2019 on the basis that Mrs Hurst’s claimed conditions were either not fully diagnosed, fully treated and fully stabilised (FDTS) or were FDTS but did not cause the necessary functional impairments (R1, T2).
On 6 November 2019, Mrs Hurst applied to the Tribunal’s General Division for a review of the AAT1 decision dated 4 October 2019 (R1, T1).
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
The statutory principles relevant to Mrs Hurst’s application are contained in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The Guide to Social Policy Law: Social Security Guide (the Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so
(refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645).
The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies (Section 3.6.3 of the Guide).
Qualification criteria

11. Section 94 of the Act sets out the qualification criteria for DSP. For present purposes,
the three primary requirements are that the person has a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act); that the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b) of the Act); and that the person has a CITW (s 94(1)(c)(i) of the Act).

The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement that the person has a CITW, are of equal importance (Topic 3.6.3.05 of the Guide).
In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine Mrs Hurst’s eligibility for DSP on 12 June 2019, the date the claim was lodged.[3]
[3] Evidence, such as medical reports, that come into being after the relevant period may still be relevant,
The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (s 3 of the Determination). The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions
(s 5(2) of the Determination).
Section 6 of the Impairment Tables set out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings.
Section 6(1) of the Determination requires that a person’s impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. To be given a rating under the Impairment Tables,
the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years (s 6(3) of the Determination, refer also to
ss 6(4) to 6(7) of the Determination).
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (s 6(8) of the Determination).
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence (s 8(1) of the Determination). Unless required by the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account (s 8(2) of the Determination).
To select the applicable Impairment Table, one must take the following steps (s 10(1) of the Determination):
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
Continuing inability to work, severe impairment and participation in a program of support
All of the criteria in s 94(2) of the Act must be satisfied in respect of the requirement that a person have a CITW under s 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention. Section 94(2) of the Act is as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity -- such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
In relation to s 94(2) of the Act, extracted at paragraph [20] above, relevantly:
(a)the Tribunal has no power to dispense with the operation of the program of support requirement in s 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not;[4]
(b)a person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table (s 94(3B) of the Act);
(c)a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection (s 94(3C) of the Act); and
(d)work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market (s 94(5) of the Act).
[4] See Larkin and Secretary, Department of Social Services [2018] AATA 342 at [57] in which the Secretary referred to a number of authorities to this effect.
With regards to participation in a program of support (POS), the POS Determination relevantly provides the following guidance:
(a)the relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person (s 5 of the POS Determination); and
(b)the requirements for active participation in a POS are contained in s 7 of the POS Determination. Generally, a person must have participated in the POS for at least 18 months during the relevant period (s 7(2) of the POS Determination). The Tribunal notes that ss 7(3)-7(5) of the POS Determination relate to situations where a person can participate in a POS for less than 18 months and still satisfy the POS requirement (provided that person had commenced in a POS prior to lodging their claim for DSP).[5]
[5] See Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33].
ISSUES FOR DETERMINATION
The issues which arise in this matter are whether, at the date of Mrs Hurst’s claim for DSP:
(a)Mrs Hurst suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(b)Mrs Hurst’s impairments receive an impairment rating of 20 points or more under the Impairment Tables; and if so,
(i)whether those 20 impairment points are achieved under a single Impairment Table such that Mrs Hurst has a severe impairment; and
(c) Mrs Hurst has a CITW, which includes:
(i)that she be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)if, and only if, Mrs Hurst does not have a severe impairment,
Mrs Hurst has actively participated in a program of support.
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 28 July 2020. Mrs Hurst was self-represented. Mr Leslie Hurst, Mrs Hurst’s husband was in attendance as her support person. The Secretary was represented by Ms Laura Hinwood, Seconded Lawyer. The parties appeared at the hearing via telephone.[6]
[6] Following the changes to national circumstances due to the COVID-19 pandemic, the Tribunal announced it was closing to all visitors from Thursday 26 March 2020.
At hearing, the Tribunal admitted the following documents into evidence:
(a)Documents received by the Tribunal on 17 April 2020, (together being A1):
·     Applicant’s response to Secretary’s Statement of Facts, Issues and Contentions dated 17 April 2020;
·     Statement by Leslie Walter Hurst (undated);
·     Applicant’s résumé, further education and employment history (undated); and
·     Email correspondence between Applicant and Ms Janelle Sherburn, Physiotherapist, dated 15 April 2020 and 16 April 2020.
(b)Documents received by the Tribunal on 18 March 2020, (together being A2):
·     Letter from Ms Sherburn to Dr John Salmon, Pain Management Specialist, dated 11 March 2020; and
·
Letter from Dr Andrew Taylor, Consultant Rheumatologist to

Dr M Willis, dated 26 February 1999.
(c)Documents received by the Tribunal on 28 January 2020, (together being A3):
·     Applicant’s statement addressing medical history (undated);
·     Letter from Applicant to Agency dated 25 January 2020;
·     Report by Dr Salmon dated 20 January 2020;
·
Letter from Dr James Salvaris, General Practitioner (GP),

dated 7 January 2020;
·     CT cervical spine report dated 20 December 2019; and
·     Report by Mr Barrie Slinger, Spinal Surgeon, dated 12 June 1998.
(d)
Documents received by the Tribunal on 18 December 2019,

(together, being A4);
·
Applicant’s statement addressing medical history (undated)

(duplicate A3);
·     Printout from MIMS Australia regarding Methotrexate/Methoblastin;
·
Letter from Ms Simone Quartermaine, Bentley Continence Clinic,

dated 23 January 2017;
·     Letter from Agency to Applicant, dated 24 January 2000;
·     Amended Particulars of Loss document filed in the District Court of Australia No. 141 of 1999, faxed 19 January 2000;
·     Letter from Dr Jack Edelman, Rheumatologist, dated 2 July 1999; and
·     Letter from Dr Edelman dated 24 February 1997;
(e)
Documents received by the Tribunal on 17 December 2019

(together, being A5);
·     Copy of AAT1 decision dated 4 October 2019 with Applicant’s annotations;
·     Letter from Applicant to Agency dated 16 December 2019;
·     Letter from Dr Edelman dated 11 December 2019;
·     Letter from Dr Edelman dated 23 October 2019;
·     Letter from Mr Alan Cairney, Naturopath dated 1 November 2019; and
·
Letter from Agency to Applicant, dated 24 January 2000

(duplicate in A4);
(f)T documents (223 pages) (T1 – T33) (R1); and
(g)Secretary’s Statement of Facts, Issues and Contentions dated
30 March 2020, including the Secretary’s List of Authorities (R2).
At the hearing, Mrs Hurst made submissions, gave evidence and was cross-examined.

At the opening of the hearing, Mrs Hurst confirmed for the Tribunal that:
(a)Her claim before the Tribunal was in relation to her conditions affecting her neck, shoulders and lower back (together, the musculoskeletal conditions).[7]
(b)She was no longer pursuing the claims in relation to her pelvic abdominal conditions, asthma, mental health condition and a number of other medical conditions (transcript, page 17 [45] and 18 [5]).
[7]
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Mrs Hurst’s evidence
Mrs Hurst said that if she goes past the point of her limitations she experiences exacerbation of and fluctuating episodes of chronic pain and that she lives in pain all of the time (transcript, page 12 [25]-[30]).
Mrs Hurst said that if she is working then she cannot do anything for the next couple of days (due to pain) (transcript, page 12 [35]).
Mrs Hurst told the Tribunal that she understands that she has not completed a POS in accordance with the necessary requirements (transcript, page 13 [40]).
Mrs Hurst said that she cannot move her neck to the right without turning her trunk (transcript, page 16 [15]).
During cross-examination by Ms Hinwood, Mrs Hurst said she began working for Pinnacle People (a hospitality group) in January 2018. Mrs Hurst said (transcript, page 18 [15]-[30] and page 19 [5]-[15]):
MRS HURST: … If I worked - I couldn’t work, you know, if I worked and aggravated things it would just make it worse and then go back to work again and not be able to do anything for days after because - and the stress involved in trying to fulfil the requirements. Once I had a talk to my employer about my limitations if you don’t accept shifts as a temp you wouldn’t get offered work. But I was fortunate enough and the reviews I have with Pinnacle [P]eople’s clients that I only do the short shifts because I cannot - the pain, the liability to work safely, the pain is getting worse but there’s been many times where I’ve had to get my husband to come and pick me up from work where I’ve been working and then we work out about getting my vehicle later, because of not being able to drive home from work. And it got to the - it’s at the stage where he’ll take me to work, so that I don’t have to drive to or from, so I’m safe on the roads as well as in the workplace, just by working the two to three - I’m paid a three hour minimum, even if I only work two hours. That’s the same as fire walking, if I work an hour and a half, two hours, I’m paid a minimum of four hours. They’re - both employers are aware of some of my - not all of my health issues. I wouldn’t get any work if they knew of the whole lot.
COUNSEL:So you just mentioned the exacerbation of symptoms while you were working for Pinnacle and that’s something that I noticed in the documents - your statement and your husband’s statement as well that’s been provided that you feel like the work and the nature of the work at Pinnacle caused an aggravation or worsening of your symptoms in your spine, that’s correct?
MR HURST:‑‑‑It doesn’t matter - yes, it is. It doesn’t matter whether it’s work with Pinnacle, whether it’s home duties, whatever. If I go past the - if I do anything that aggravates on a continual - on a repetitive note, it just exacerbates and the inflammation associated with the pain, of course affects other areas within my body.
COUNSEL:Yes. I guess you said earlier this morning that your position hadn’t changed and it’s been the same since the car accident but the evidence that you’ve just given suggests that that’s not quite the case, that it’s actually worsened recently with the type of work you were performing?
MRS HURST: ‑‑‑It’s been - it’s an ongoing thing. If I keep - if I don’t go past that point and that is - like I’ve got like about 10 degrees moving to the right. If I go past that point or I’m carrying things or if I’m like sitting,

it doesn’t matter which way - it doesn’t take much to be able to exacerbate my pain. I live with pain all the time but doing things increases my pain.
COUNSEL:Just keep in mind, I know you’re talking a lot in the present tense at the moment and as we talked about this morning we’ve got to look back in time at the dates that this claim was lodged, so that’s a year ago?
MRS HURST: ‑‑‑Yes, but it’s not just the present tense, it’s been the last 24 years that I have lived - even when my husband and I got married in 1998, I stood on his right so that - because I couldn’t look at him the other way to actually conduct - have the ceremony conducted. It’s always - it rules my - it has ruled my life as a limitation and that’s where the Bowen treatment. Every time I’d do something I would be there for a treatment and it’s - and many appliances and exercises and things are all - it’s the same.

When asked by Ms Hinwood, Mrs Hurst said that she first saw Mr Patrick Renner, physiotherapist, in March 2019 and again on a few further occasions up to August 2019, from which point she did not see a physiotherapist until January 2020 (transcript, page 19 [20]-[30]).
Mrs Hurst said that she went and saw Dr Salmon in January 2020 because she was told that because she had not seen a pain specialist, her future (DSP) applications would be affected (transcript, page 19 [35]). Mrs Hurst said that this was the first time she had ever seen a pain specialist (transcript page 19 [45] and page 20 [5]).
Mrs Hurst said that her primary concern is her experiencing pain (transcript, page 20 [10]).
When taken to the 20-point descriptors in Table 2 of the Impairment Tables (Upper Limb Function), Mrs Hurst stated that at the date of claim:
(a)She accepts that descriptors 1(a) and 1(b) are not relevant and do not apply to her (transcript, page 21 [10]), given (respectively) the nature of her hospitality work and that while she might be able to carry an object once, she has to consider what she carries (transcript, page 21 [20]-[25]).
(b)Regarding, descriptors 1(c) and 1(d), she had difficulty using a computer keyboard and severe difficulty using a pen or pencil, having completed her DSP application in a number of stages (transcript, page 22 [10]-[20]).
(c)As to descriptor 1(e), she was able to turn the pages of a book, even though it was extremely painful (transcript, page 22 [30]-[35]).
When taken to the 20-point descriptors in Table 4 of the Impairment Tables

(Spinal Function), Mrs Hurst stated that at the date of claim:
(a)Referring to descriptor 1(a), she was unable to perform any overhead activities and avoided such activities because performing them would cause her extreme pain (transcript, page 23 [5]-[25]).[8]
(b)
As to descriptor 1(b), since 1996 she has been unable to look to the right without turning her trunk (transcript, page 23 [25]). When taken to

Mr Renner’s and Dr Salvaris’ evidence that she was able to move her neck at the relevant time,[9] Mrs Hurst said that she was still able to move her neck, although this movement was limited and she cannot look to the right (transcript, page 23 [30]-[40]).
(c)Regarding her ability to bend forward to pick up a light object from a desk or table (descriptor 1(c)), she would be able to do this from a sitting position.
(d)As to whether she could remain seated for at least 10 minutes (descriptor 1(d)), sitting causes her pain, and she has to get up and move around and then sit again (transcript, page 24 [10]).[10]
CONSIDERATION
[8] When asked by the Tribunal, Mrs Hurst clarified, rather, that she could perform an overhead activity although it would result in severe pain (transcript, page 25 [5]-[20]).
[9]
[10] When asked by the Tribunal, Mrs Hurst said she would be able to be seated in a vehicle as a passenger for 10 minutes even though it might cause her pain (transcript, page 26 [10]).
Whether Mrs Hurst suffered from a physical, intellectual or psychiatric impairment or impairments
It is not in dispute that Mrs Hurst suffers from impairments. The Tribunal finds on the evidence that at the date of claim, Mrs Hurst suffered from various impairments resulting from her musculoskeletal conditions. The Tribunal notes the medical reports, medical certificates and radiological evidence in this regard (A2, A3, A4, A5, R1, T7, T8, T13, T14, T16, T22, T24, T26 and T27).
As such, the Tribunal finds that Mrs Hurst satisfies s 94(1)(a) of the Act.
Whether Mrs Hurst’s impairments receive an impairment rating of 20 points or more
It is not in dispute that Mrs Hurst has not participated in a POS for the required 18 months (refer to transcript, page 13 [40] and R1, T28). Further, Mrs Hurst has not claimed, nor is there any evidence to suggest, that she has been specifically exempted from this requirement.
Therefore, in order for the present application to succeed, the Tribunal must be satisfied that at least one of Mrs Hurst’s claimed conditions attracts 20 points for that single condition. That is, the Tribunal must find that Mrs Hurst suffers from a severe impairment

(refer to paragraphs [20] and [21(b)] above).
Before considering whether Mrs Hurst suffers from a severe impairment, the Tribunal must first determine whether any of Mrs Hurst’s claimed conditions are FDTS. It is only then that a condition may be deemed permanent and therefore be rendered capable of being assigned impairment points under the relevant Impairment Tables (whether those points be 20 points or more under a single table or otherwise).
The Secretary’s position regarding the rating of Mrs Hurst’s impairments relating to her musculoskeletal conditions under the Impairment Tables is that (transcript, page 28

[35]-[45] and page 29 [5]-[10]):
…the Secretary’s position is that these conditions were not fully diagnosed, treated and stabilised... Although I accept that each of the conditions had been diagnosed, there is simply insufficient evidence regarding treatment that had been undertaken to enable you to make a finding that the conditions were fully treated and stabilised.
I would also note that Ms Hurst accepted, under cross-examination, that the main issue for her, as a result of these conditions, is pain. However, she did not follow through on a referral to a pain specialist until January this year...
I would also note that the applicant was engaged with a physiotherapist at the time of putting in the claim and ceased that… [shortly after].
She then commenced treatment with another physiotherapist several months later.
So in the Secretary’s submission, the applicant’s musculo-skeletal conditions were not fully treated of fully stabilised… as there was still further treatment, at that time [being the date of claim], that had not yet been explored.
I would also note that the evidence, given by Ms Hurst this morning, clearly demonstrates that the manual nature of her employment with Pinnacle People was a [sic] aggravating factor that was causing an exacerbation of her symptoms.
The Secretary has relied upon the following evidence in support of its contention that none of Mrs Hurst’s musculoskeletal conditions were FDTS at the date of claim (R2, paragraphs 37 to 39):
37. However the Secretary contends that none of the Applicant’s musculoskeletal conditions were fully treated or fully stabilised at the qualification period, and any resulting impairment therefore cannot be rated under the Impairment Tables. The Secretary notes and relies upon the following evidence in support of this contention:
a.    Ultrasound guided steroid injections have been recommended for the Applicant’s shoulder conditions on a number of occasions since 2014.
For example:
i. The Applicant’s GP made this recommendation in 2014,
but the Applicant advised her GP that she was “NOT’ [sic] keen on steroid injections’ [sic] (T26/201).
ii. An ultrasound performed on 18 March 2019 identified ‘subacromial-subdeltoid bursitis that would be amenable to an ultrasound guided steroid injection’ for both shoulders (T16/142).
iii.Patrick Renner (Physiotherapist) noted in his report dated
12 August 2019: ‘I believe she has been given a referral for cortisone injections into the shoulders and I think this should be undertaken, but [the Applicant] has reservations and concerns that the ‘injections may aggravate her former breast cancers” [sic] (T24/190).
b.    The Applicant has provided evidence from her various medical practitioners regarding treatment she underwent between 1996 and 1999 for her spinal condition (see reports of Dr Slinger and Dr Taylor, filed by the Applicant). However other than the report of Alan Cairney (Naturopath) dated 1 November 2019, which stated that the Applicant has attended Bowen therapy treatment 125 times between 6 June 1997 and 9 November 2018 (report filed by the Applicant) there is very little evidence of treatment undertaken in the intervening twenty years.
c.    In March 2019, Dr Salvaris (GP) completed a Chronic Disease Management Plan in which he noted that the Applicant had long-standing lower back pain, for which she required various treatment including input from a physiotherapist, referral to a pain specialist
(Dr Salmon), and re-engagement with Bowen Therapy [sic] (T14/139).
d.    The Applicant was referred to Mr Renner for physiotherapy on 14 March 2019 (T15/141). She attended her first session on 18 March 2019, and attended a subsequent four sessions between that date and her final session in August 2019. Mr Renner believed that hydrotherapy would be ‘a great option’ for the Applicant, however she ceased this treatment at some stage before August 2019 on the advice of ‘a specialist’. Mr Renner disagreed with this decision, remaining of the view that hydrotherapy was a reasonable treatment option for the Applicant (T24/189).
e.    In addition to physical treatment such as hydrotherapy and ‘a regular active range of motion and mobility program’, Mr Renner recommended ‘adequate pain management and a mental health management plan’ (T24/191). In that regard, the Secretary notes that the Applicant subsequently followed through on these recommendations as evidence by the following:
i.     the Applicant re-commenced physiotherapy on 31 January 2020, four months after the conclusion of the qualification period
(see report of Janelle Sherburn dated 11 March 2020, filed by the Applicant). There is no evidence that the Applicant attended physiotherapy between August 2019 and the first appointment with Ms Sherburn in January 2020.
ii.     The Applicant attended an appointment with Dr Salmon (Specialist in Pain Management) on 20 January 2020, four months after the end of the qualification period. He recommended ‘further help to optimise self-management and exercising strategies’, and also alternative analgesia options (report filed by the Applicant).
f.     Methotrexate was recommended as a pharmacological treatment for the Applicant’s PR on a number of occasions during the qualification period – see report of Dr Jack Edelman (Rheumatologist) dated 17 July 2019 (T22/183); report of Dr Salvaris dated 19 August 2019 (T26/198);
medical certificate of Dr Salvaris dated 19 August 2019 (T27/203). However the Applicant has consistently refused to take this medication due to her fear of negative side effects (despite Dr Edelman describing the side effects as ‘very negligible’ – T22/183).
g.    In a medical certificate dated 19 August 2019, Dr Salvaris noted a diagnosis of PR which he described as a temporary exacerbation of a permanent condition (T27/203).
h.    Dr Salvaris provided a recent report dated 7 January 2020, in which he noted that the Applicant’s PR symptoms have ‘now reduced to a tolerable situation’ (report filed by the Applicant).
38.Having regard to the above evidence, the Secretary contends that the Applicant’s:
a.    shoulder conditions were not fully treated or fully stabilised at the qualification period, because the Applicant had not undertaken all reasonable treatment. In particular, she had not undertaken ultrasound guided injections despite numerous recommendations that she do so.
b.    spinal condition was not fully treated or fully stabilised at the qualification period because she had not completed all reasonable treatment.
In particular, the Applicant was yet to engage with a pain specialist as recommended by her GP and had yet to re-engage with a physiotherapist as recommended by her GP and Mr Renner. Mr Renner had also recommended hydrotherapy as a reasonable treatment, however the Applicant had ceased this prior to or during the qualification period.
c.    PR was not fully treated or fully stabilised at the qualification period, as the Applicant had not undertaken all reasonable treatment. In particular, she had refused to try Methotrexate despite numerous recommendation that she do so. The Secretary notes that Dr Edelman provided a report dated 23 October 2019 in which he stated that the Applicant’s PR was stabilised, permanent and not going to improve. In that report, Dr Edelman stated that Methotrexate ‘may well cause intolerable side effects which, in her case, might be detrimental to her health and the same goes for other disease modifying agents’ (report filed by the Applicant). However the Secretary notes that this report was provided after the qualification period, and the evidence of Dr Edelman during the qualification period suggests that at that time he still considered Methotrexate to be a reasonable treatment. To the extent that this later report contradicts the evidence contemporaneous to th [sic] qualification period, it should be disregarded. The Secretary also notes that the Applicant’s GP described her PR as a temporary exacerbation in August 2019, during the qualification period, and by January 2020 the Applicant’s GP reported that her symptoms had improved. On this basis, it cannot be said that the Applicant’s PR was fully stabilised at the qualification period.
39. Further, the Secretary understands that chronic pain is the most significant symptom experienced by the Applicant as a result of her shoulder conditions, spinal condition and PR. In that regard, the Secretary notes that the Applicant was referred to a pain specialist in March 2019 by her GP, and Mr Renner also recommended this as a reasonable treatment for the Applicant’s various musculoskeletal conditions. However the Applicant did not attend her first appointment with a pain specialist (Dr Salmon) until January 2020, four months after the conclusion of the qualification period. As she did not commence treatment with a pain specialist until several months after the qualification period, and this was a reasonable treatment that could be expected to lead to significant functional improvement for all of the Applicant’s musculoskeletal conditions, the Secretary contends that none of the Applicant’s musculoskeletal conditions were fully treated or fully stabilised at the qualification period.
Mrs Hurst’s opinion, however, is that she achieves a total of 40 impairment points at the date of claim on the basis of her shoulder condition (20 points under Table 2) and her spinal condition, which includes her back and neck conditions[11] (20 points under Table 4) (transcript, page 17 [15]-[20]).
[11] The Tribunal notes that the Introduction to Table 4 states that Table 4 is to be used in relation to functional impairments suffered when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
At hearing, Mrs Hurst submitted that her claimed conditions are fully treated and fully stabilised because she has completed or at least attempted to complete all of the reasonable treatment options (transcript, page 31 [30]-[35]) and because nothing has changed for her following her accident in 1996.
In relation to her view that her musculoskeletal conditions were FDTS at the date of claim, Mrs Hurst stated in her written submissions that:
(a)
During 1996 and 1997 she attended many medical appointments and treatment regimes, with limited or no relief, being physiotherapy,

nerve specialist, rheumatologist, spinal surgeon, GPs and radiological imaging (A1, page 5).
(b)
She has continued with the regular exercise recommended by Mr Slinger

(A1, page 7).[12]
(c)Mr Cairney confirms in his report that she has always sought reasonable treatment (A1, page 7).[13]
(d)She continues with massage and reflexology (A1, page 7).
[12]
[13] The only comment by Mr Cairney in his report (within A5) that the Tribunal considers relates (even broadly) to Mrs Hurst’s submission in paragraph [46(c)] above is that she attended for naturopathic treatment for chronic pain and restricted movement approximately 125 times between 6 June 1997 and 9 November 2018.
Mrs Hurst made the following written submissions in direct response to the Secretary’s written submissions (extracted at paragraph [43] above) (A1, pages 8 and 9):
There are many statements about the Applicant not undertaking suggested Medical treatments…[t]he recommendation for Steroid injections please refer to

Dr Andrew Taylor’s report 26/2/1999,[14] it was explained to the Applicant that the pain would be aggravated for [sic] the positioning and if the injection was not in the exact spot any deviation could cause paralysis. Cortisone Injections are required on a continual basis but are limited to only a few times a year. They can cause many side effects that are greater than the continual use of oral steroids with no ability to reduce or increase the dose as required…
…The Applicant undertook Hydrotherapy at Aqualife in Victoria Park as recommended for 5 weeks averaging 3 times per week. This was recommended by P Renner[15] as Physiotherapy deals with one area of the body or the other, it was explained to the Applicant that it would benefit shoulder and lower back in the one session. The chronic pain from the aggravation endures was extreme requiring bed rest. During this time the Applicant developed a chest infection and had to stop attending, at the next appointment with Dr Edelman the Applicant discussed the pain she was experiencing, his recommendation was to cease [aquatherapy] because of the aggravation.[16]
[14]
[15] Refer to Mr Renner’s report dated 12 August 2019 at R1, T24.
[16] Mr Renner states in this report dated 12 August 2019 that he disagreed with the decision to cease Mrs Hurst’s aqua therapy. The Tribunal notes that Dr Edelman’s apparent recommendation appears nowhere in his reports or in the available medical evidence generally.
Having regard to the available medical evidence in its entirety, the Tribunal cannot be satisfied that Mrs Hurst’s musculoskeletal conditions are FDTS at the date of claim,[17]

for the following reasons:
(a)While Mrs Hurst has provided evidence regarding treatment undergone between 1996 and 1999, there is very little evidence of treatment undertaken, if any, over the last 20 years.
(b)As at August 2019, Mr Renner remained of the view that hydrotherapy was a reasonable treatment option for Mrs Hurst, who ceased treatment prior on the apparent advice of Dr Edelman (R1, T24, page 189). However there is no documented evidence of this advice being obtained or that any other appropriately qualified medical professional considered otherwise.
(c)Mrs Hurst’s recommencement of physiotherapy in January 2020 and her appointment with Dr Salmon in the same month falls several months beyond the relevant date for the present application. Therefore, Mrs Hurst was yet to engage with a pain specialist and re-engage with a physiotherapist at the date of claim. In any event, Dr Salmon was of the view in 2020 that further treatment options ought to be explored. The Tribunal considers the lack of engagement with pain specialist at the date of claim to be of particular significance given that Mrs Hurst describes her chronic pain as being her most significant symptom. The Tribunal is of the view that in these circumstances, physiotherapy and treatment endorsed by a pain specialist are reasonable treatments methods that were yet to be fully explored at the date of claim.
[17] The Tribunal notes further that if the conditions referred to in paragraph [26(a)] above were found to be FDTS, it would only be possible to assign an impairment rating to those conditions if the Tribunal were satisfied of the degree to which each individual condition, and only that condition, causes the functional impairment (Pignat and Secretary, Department of Social Services [2017] AATA 2745 at [22]). As the Tribunal has ultimately found that Ms Hurst’s musculoskeletal conditions referred to in paragraph [26(a)] above, along with her polymyalgia rheumatica are not FDTS (see paragraph [50] below), it is not required to go on to perform this exercise.
In light of the matters addressed and findings made at paragraphs [40] to [48] above,
the Tribunal is unable to allocate impairment points to Mrs Hurst’s functional impairments and she fails to satisfy s 94(1)(b) of the Act.
Whether Mrs Hurst has a continuing inability to work

Based on paragraphs [40] to [48] above, the Tribunal finds that Mrs Hurst’s claimed conditions are not FDTS and she fails to satisfy subsection 94(1)(b) of the Act. Given this finding, the Tribunal is not required to consider whether Mrs Hurst had, at the date of claim,

a CITW in satisfaction of subsection 94(1)(c) of the Act.
In this regard, and for completeness only, the Tribunal notes that:
(a)
Ms Hurst concedes she has failed to complete a POS in accordance with the relevant requirements and the evidence indicates this to be the case

(refer to paragraphs [30] and [40] above).
(b)While no JCA was undertaken, there is no evidence to suggest that Ms Hurst did not have the capacity to work 15 hours per week in appropriate employment at the date of claim. The Tribunal notes that Mrs Hurst has continued to work at the date of claim and throughout,[18] albeit in physical hospitality work at times, which the Tribunal accepts causes her a degree of pain.
[18] Refer to Mrs Hurst’s employment history within A1.
Therefore, on the available evidence Mrs Hurst’s application is likely to have failed:
(a)regardless of whether her claimed conditions were FDTS; and
(b)
if her claimed conditions had been found to be FDTS, regardless of whether

20 impairment points were assigned under a single condition,

or accumulatively.
CONCLUSION
The Tribunal accepts that, at the date of claim, Mrs Hurst suffered from medical conditions impacting on her health such that she satisfies s 94(1)(a) of the Act. However, the Tribunal has found that there is insufficient evidence to establish that any of her claimed conditions, being the musculoskeletal conditions, were permanent at this time and hence they cannot be assigned any impairment points.
As Mrs Hurst’s claimed conditions are not, in the Tribunal’s view, FDTS and hence do not attract any impairment points, she fails to satisfy the second qualification criteria under

s 94(1)(b) of the Act and in turn fails to qualify for the DSP.
DECISION
The decision of the AAT1 dated 4 October 2019, which affirmed a decision of the Agency dated 12 July 2019 to reject Mrs Hurst’s application for DSP lodged on 12 June 2018,

is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

...........................[sgd].............................................
Associate
Dated: 25 August 2020

Date of hearing: 28 July 2020

Applicant: In person

Counsel for the Respondent: Laura Hinwood

Solicitors for the Respondent: Services Australia

but only insofar as they are referable to the applicant’s condition during the relevant period
(Re Fanning and Secretary, Department of Social Services[2014] AATA 447, Deputy President Handley at 473 [31]; affirmed by the Federal Court of Australia in Gallacher v Secretary, Dept of Social Services [2015] FCA 1123 at [27]-[28]).

As to Mrs Hurst’s additional and previously claimed musculoskeletal condition, polymyalgia rheumatica (PR), Mrs Hurst did not previously submit that her impairment arising from this condition is severe. At the hearing, Mrs Hurst did not claim to continue to pursue this condition in the present application, rather, she confirmed to the Tribunal and to Ms Hinwood on several occasions that her present claim was entirely encompassed by her neck, shoulders and back conditions. However, Mrs Hurst did refer to her PR condition at the hearing in the context of her broader claims regarding her musculoskeletal conditions and her chronic pain symptoms.

The Tribunal is satisfied that Mrs Hurst was afforded a reasonable opportunity to pursue her claim for PR at the hearing had she wished to do so.

See Mr Renner’s report dated 12 August 2019 (R1, T24, page 190) and Dr Salvaris’ letter dated

19 August 2019 (R1, T26, page 198). See also R2, paragraph 46.

The Tribunal notes this recommendation appears in Mr Slinger’s report dated 12 June 1998, more than

20 years ago.

The Tribunal notes that these matters are not referred to in Dr Taylor’s report dated 26 February 1999

(located within A2).

[2020] AATA 3132

25 August 2020

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Date of hearing:	28 July 2020
Applicant:	In person
Counsel for the Respondent:	Laura Hinwood
Solicitors for the Respondent:	Services Australia