Jansen and Secretary, Department of Social Services (Social services second review) - [2018] AATA 3362

Jansen and Secretary, Department of Social Services (Social services second review) [2018] AATA 3362 (7 September 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5288
Re:Barbara Jansen
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:07 September 2018
Place:Perth

The decision under review is affirmed.
............[sgd]............................................................
Member C Edwardes
CATCHWORDS
Social Security – disability support pension – mental illness – spine condition - not fully diagnosed, fully treated & fully stabilised – not fully treated & fully stabilised – impairment rating cannot be assigned – continuing inability to work rating – participation in program of support – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(1)(a)
Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(b), s 94(1)(c)(i), s 94(2), s 94(3B), s 94(3C)
Social Security Administration Act 1999 (Cth) – s 179, Sch 2 Cl 4 (1)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Campbell and Secretary, Department of Family and Community Services [2004] AATA 1201
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Harris v Secretary, Department of Employment and Workplace relations [2007] FCA 404
Harvey and Secretary, Department of Social Services [2014] AATA 364
Toma and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 379
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Guide to Social Security Law
Social Security (Active Participation for Disability Support Pension) Determination 2014 - s 5, s 7(1), s 7(2)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5), s 6(6), s 6(7), s 7, s 8, s 8(1), s 10, s 11, s 11(1)(c)
REASONS FOR DECISION
Member C Edwardes
7 September 2018
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 11 August 2017, where the AAT1 affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP). The Applicant lodged the DSP claim on 4 October 2016 (T2 4-12)(R1).
INTRODUCTION
On 4 October 2016, the Applicant lodged a claim for Disability Support Pension involving conditions of spinal disorder and depression (T15 101-132)(R1) and (T17 134-135)(R1).
The claim was rejected by an officer of the Centrelink (a part of the Department of Human Services), and the Applicant was advised of this rejection by letter dated 14 March 2017 (T18 139)(R1). The reason for rejection of the application was on the basis that the Applicant had failed to attain an impairment rating of 20 points or more.
The Applicant requested review of the decision by the officer of Centrelink. The review was undertaken by an Authorised Review Officer (ARO), and the Applicant received notification of this decision on 12 May 2017 (T23 149-153) (R1).
On 12 May 2017 the ARO made the following findings:
Your conditions of degenerative lumbar disease and depression are not accepted as being permanent as they have not been fully treated and stabilised.
You do not have an impairment rating of 20 points or more.
You do not have a continuing inability to work 15 hours per week or more because of your impairment (T23 150)(R1)
As a result of the decision of the ARO, the Applicant lodged an application with the AAT1 on 30 May 2017 (T2 5)(R1).
In a decision dated 11 August 2017, the AAT1 determined that the Applicant did not attract at least 20 impairment points under the [social security] legislation (T2 12) (R1). The Tribunal found that both of the Applicant’s conditions had not been fully treated and stabilised within the qualification period.
The AAT1 concluded:
41. As Ms Jansen’s medical conditions do not attract at least 20 impairment points under the legislation, the Tribunal did not proceed to address the issue of whether she has a continuing inability to work as required by paragraph 94(1)(c) of the Act.
42. Ms Jansen will no doubt be disappointed with this outcome but the Tribunal in no way disputes she has a severe degenerative lumbar spine condition which presently impacts on her ability to function. However, for the reasons outlined above, the Tribunal has concluded that both her spinal condition and her depression have not been fully treated and stabilised. There is presently insufficient information as to whether any improvement is to be expected once she has had suitable or reasonable treatment and assessment, and if there is no appreciable improvement in her function, she may wish to re-test her eligibility for a disability support pension.
43. As discussed with Ms Jansen, the Tribunal has gone into some detail in terms of considering each of her medical conditions and the reasons for its conclusions. (T2 12)(R1)
On 5 September 2017, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the AAT1 decision dated 11 August 2017 (T1 1-2) (R1) and (T2 5)(R1).
In the Applicant’s application for second review of decision, the Applicant stated:
I request a second review into my appeal application. On the 18^th of July a telephone hearing was conducted in which I requested my Neurosurgeon be contacted for the AAT to receive an up to date report on my condition. The decision made on the 11 August was made without the report from Dr Jeffs, thus [sic] I have attached. [sic] My condition requires assistance and I hope the tribunal [sic] can take this into consideration (T1 2)(R1)
The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (the Administration Act).
The matter was heard in Perth on 20 August 2018. The Applicant appeared in person and the Respondent was represented by Ms Jones-Bolla from Sparke Helmore.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act1991 (the Act) and the Administration Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
1A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) person has a continuing inability to work;
(ii) …
Assessing impairments and assigning an impairment rating
The Impairment Tables referred to in section 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables.”
Section 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
5 … The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. 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. A claimant’s impairment is to 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: s 6(1) of the Determination.
6 The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Sections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Sections 6(5), 6(6) and 6(7) fall under the heading “Applying the Tables.” Section 8(1) of the Determination (under the heading “Information that must not be taken into account in applying the Tables”) stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using Impairment Tables and how to assign impairment ratings. In particular, Section 11(1)(c) of the Determination states that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.”
Continuing inability to work
As set out above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:
2A 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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – 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
(bb)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
(cc)in all cases – either:
the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
‘Severe impairment’ is defined in section 94(3B) of the Act:
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. (Original emphasis.)
Section 94(3C) of the Act states that 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.
Relevantly, sections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
QUALIFICATION PERIOD
Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements in Schedule 2 clause 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was lodged with Centrelink, and concluding 13 weeks after that day. In the present case, the 13 week period is from the 4 October 2016 2016 to 3 January 2017 inclusive, and is known as the “Qualification Period”.
For a claim to be successful, a person must be qualified for DSP during the qualification period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1].
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179)
ISSUES
The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP during the qualification period for the purposes of section 94(1) of the Act.
This requires consideration of whether at the time of the qualification period:
(a)the Applicant had any physical, intellectual or psychiatric impairment;
(b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c)if so, whether the Applicant had a ‘continuing inability to work’ as defined in section 94(2) of the Act.
EVIDENCE
As mentioned above, the matter was heard in Perth on 20 August 2018. The Applicant appeared in person. The Respondent was represented by Ms Jones-Bolla of Sparke Helmore
The Tribunal would like to thank all parties for the assistance they provided during this hearing.
The Tribunal has the following evidence before it:
·Exhibit A1 – Report of Dr D Bassett dated 10/1/18.
·Exhibit A2 – Report of Dr Witte dated 8/3/18.
·Exhibit A3 – Various spine scans.
·Exhibit A4 – Report of Dr G Jeffs dated 8/6/18.
·Exhibit R1 – T documents (T1-127 pp 1-199)
·Exhibit R2 – Statement of Facts, Issues and Contentions (SOFIC).
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Secretary made the following contentions in respect to the medical conditions of the Applicant: (R1 6-9)
Mental Health Condition
38. A letter from Dr Witte dated 23 September 2016 stated that the Applicant had "a longstanding history of depression and was struggling with the recurrence of her symptoms in the context of her chronic pain and disability and resultant stressors." [T13 p98]
39. The Applicant was assessed by Dr Basset [sic], consultant psychiatrist, on 10 January 2018, the Applicant having been referred to him on 9 January 2018. In his report of 10 January 2018, he stated the Applicant had mild depression, normal levels of anxiety, and moderate stress.
40. In his opinion, "Ms Jansen presented with an intermittent Major Depressive Disorder with anxiety, co-morbid with chronic pain and physical disability." [Annexure A]
41. Dr Basset's report also noted that Ms Jansen's current management of her condition (being Sertraline 200mg and Diazepam occasionally) was "very appropriate and should continue into the foreseeable future".
42. A letter from Dr Witte dated 8 March 2018 stated the Applicant was "initially diagnosed with depression on 26 September 2000 when she presented with a 5 week history of persistent very low mood associated with often being teary for no reason, mood swings... and daytime fatigue." [Annexure BJ]
43. Dr Witte further noted her current treatment was Sertraline 200mg; she had accessed regular counselling and had been very proactive in her recovery; she should remain on lifelong antidepressant therapy; and that her condition had stabilised but would be lifelong.
Spinal Condition
49. A letter from Mr Soni Narula. adjunct associate professor and neurosurgeon. dated 23 November 2015 [T5 p89] stated that:
(a) The Applicant had lower back pain for a week, including bilateral hip pain and anterolateral thigh aches. not reaching her knees.
(b) An MRI scan dated 23 November 2015 indicated an annular fissure at the left L4/L5 as well as L5/S1 with minimal disc protrusion without any canal encroachment or nerve root impingement; discs were desiccated but there was no herniation. [See Annexure CJ]
(c) The Applicant had difficulty sitting, standing. turning and difficulty in initiating movements.
50. A letter from Mr Narula dated 27 November 2015 stated that the Applicant had been admitted to St John of God Hospital with back pain and not much radicular pain. An MRI did not show any significant finding except mild disc bulges and annular fissures. The Applicant was given an injection "which provided reasonably good relief." On discharge, she was provided with medications; advised to undertake gentle walking and then hydrotherapy; and given advice with regard to activities as well as an exercise program. [T7 p91]
51. A medical certificate from Dr Witte dated 6 January 2016, indicated the onset of "lower back pain" and listed the treatment regime (including past, current and planned treatment) as physiotherapy, analgesics and specialist review on 2 February 2016. [TS p92]
52. A letter from Mr Narula, dated 2 February 2016, recommended core exercises and suggested facet joint injections. Mr Narula was "not keen to be considering surgery as a first option" [T9 p93]. A facet joint injection was subsequently carried out on 5 February 2016. [Annexure CJ]
53. A letter from Dr Philip Finch, pain medicine physician and anaesthetist, dated 6 September 2016, reported that nerve blocks and facet joint injections from 25 November 2015 to May 2016 had provided some periods of improvement. He intended to block the L4/5 disc on its own to see if it would improve the Applicant's functioning. [T12 p96]
54. A letter from Dr Witte, dated 23 September 2016, stated that nerve blocks and epidurals had not provided significant or lasting relief to the Applicant. Dr Witte stated that the Applicant had been proactive with regular attendance for physiotherapy and hydrotherapy, but in spite of these interventions, she continued to experience severe, constant lower back pain and remained significantly restricted, although additional interventions were scheduled to be trialled with Dr Finch. Dr Witte concluded, "the limitations regarding her activities are likely to persist into the longer term." [T13 p98]
55. In her claim for DSP claim signed on 4 October 2016, the Applicant wrote"/ can't stand for more than 15 minutes nor can I sit for the same timeframe." The Applicant listed her treatment as "physio, hydro, pain specialist and medication," and that she was expecting to have epidurals and spinal surgery on 29 September 2016. [T15 p129]
56. In MRI report dated 14 December 2016 in relation to the lumbosacral spine is only partially legible, but indicates multilevel degenerative lumbar spondylosis. [T16 p133]
57. A letter from Dr Graham Jeffs, consultant neurosurgeon, dated 31 March 2017, stated after initial examination that he was "of the opinion that she has severe degenerative disease and this is likely to require surgical intervention at some time in the future." [T20 p142]
58. A letter from Dr Jeffs dated 25 August 2017 stated, "The degradation combined with the scoliosis in my opinion makes it very unlikely indeed that Mrs Janssen will be comfortable enough to work 15 hours a week in any particular role due to ongoing issues such as back pain and sitting for long periods...although there is likely to be improved comfort post recovery I do not think this will be of sufficient degree to warrant or allow return to the workforce... there is no further treatment to be performed." He stated, in summary, that "although the condition has been diagnosed and treated surgically this was treatment for a focal area of collapse and does not treat overall spinal deformity or the widespread unusual and premature degeneration present throughout the lumbar spine." [T1 p3]
59. A letter from Dr Witte, dated 8 March 2018, stated that "As it is now 8 months post surgery, Barbara's condition is considered to be stabilised." Dr Witte also stated that the Applicant "has advanced degenerative changes in her spine, which are unusual for her age... Barbara continues to have restrictions including bending, lifting and twisting which results in her having to utilise aids such as a reaching stick, and if her pain is severe, a walking stick." Dr Witte described the applicant's back condition as "likely to be progressive and deteriorate further over time." [Annexure BJ]

The Applicant contends:
Due to having a permanent injury to my spine I have spent the last 2 years in pain I have 3 children at home that help with day to day duties including assisting me with my disability. Some days I can’t walk and I am daily in pain in which I am medicated, needing to take 19 tablets a day. Even with my pps [sic] card it is expensive for me. I need specialist which cost a lot of money and I need to have my private health paid every week to receive my treatments. I cannot sit nor stand for more than 20 mins at a time which prevented me from my trade as a hairdresser. I am a single mother so I returned to University to do a business degree so that I can work from home in the future, however I can not as some days I am not mobile due to my condition. I rely very much on my children and hate seeing they are needing to take care of me. I need to get disability [sic] not only for myself but my children. I have provided all letters and scans along with getting second opinions from all specialists to show how serious my condition is. Yes in the future I may have surgery but my condition is not fixable. Surgery is performed to assist me in releasing some of the chronic pain. Contantly I have numbness and sharp pains down my legs due to my nerve damage. I have joint, bone and arthritic disease. 2 fractures in my spine, a hernai [sic] attached and 4 lower discs that are damaged and bludging. Due to my condition I have anxiety and depression in which I see a counsellor but without assistance I cannot get the required help. I need physio, hydrotherapy and medication. I am trying to do this on my Centrelink study and parenting payment and I am seriously struggling. I have attached my bone scan and DR Graham Jeffs is happy to be contacted to assist with any inquiries you may have about my condition. (T2 6)(R1)
The Respondent opened by relying on on Exhibit R2, the Respondent’s Statement of Facts, Issues and Contentions, and confirmed that the Qualification Period relevant to this matter was 4 October 2016 to 3 January 2017.
Evidence at the hearing
The Respondent claimed that the Applicant had not completed a program of support (POS) and therefore needed 20 impairment points from a single table to qualify for DSP.
The Secretary also claimed that the Applicant had a work capacity of 15-22 hours within two years.
The Applicant disagreed with the Respondent’s statement and claimed there was evidence to show that she was not fit for work.
Under cross-examination she said:
·Dr Witte was her General Practitioner;
·she was under medication as outline in a report by Dr D Bassett (Exhibit A1);
·during the qualification period, she was studying full time study in a Business degree at Curtin University;
·during the qualification period she was working 4-5 hours per week;
·during the qualification period she was undergoing treatment. This was outlined in reports produced by SKG Radiology, dated 23/11/2015 to 28/11/2017. (A3);
·that she agreed with details in a medical certificate dated 6 January 2016 (T8 92) and stated that she was undergoing treatments in the form of physiotherapy and analgesics. The Tribunal notes a letter written by Dr M Witte at (T13 98) providing further evidence that the Applicant was receiving treatments in the form of nerve blocks, epidurals, physiotherapy and hydrotherapy;
·she was undergoing further treatments of physiotherapy, hydrotherapy, pain management and medication in her claim for DSP dated 4 October 2016 (T15 129);
·She agreed that she told the AAT1 at (T2 10) “…that she did a STEP program which was to address her chronic pain. This involved seeing a psychologist, a physiotherapist and a pain specialist and the program was for two full days in February/March 2017…”
·that she agreed with Exhibit A4, a letter written by Dr Graham Jeffs and stated that she was receiving ongoing treatment outside of the qualification period.
·that she agreed with Exhibit A4, and stated that 8 months after her surgery, her condition with her back had now stabilised.
The Applicant brought her mother before the Tribunal as a witness.
The Applicant’s mother stated:
·the condition of her daughter had been very taxing on the whole family, both emotionally and financially;
·her daughter was in pain almost every day;
·receiving a DSP would assist the Applicant in getting assistance for her daughter and her children;
·enormous pressure was placed on the Applicant’s children to help their mother daily.
In summary, the Applicant stated:
·she was consistently in pain and receiving treatments.
·she wanted to work but was finding employment difficult, as she was unreliable with her back condition;
·she had to take her children out of Trinity College because she could not afford the school fees;
·She had to sell her house because she could not continue payments.
The Tribunal found the Applicant and her mother to be truthful witnesses.
CONSIDERATION
The Tribunal accepts that the Qualification Period for this matter is for the period 4 October 2016 to 3 January 2017.
The Tribunal will now consider all the evidence before it, both written and oral from the Applicant and Respondent.
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal at the date of the claim, it is not in dispute that the Applicant suffers from the following medical conditions – a spinal condition and depression
There are numerous medical reports and other reports which attest to the fact that the Applicant suffers from the conditions above.
The Tribunal finds that the Applicant satisfies section 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
The AAT1 was told by the Applicant:
25. Ms Jansen told the Tribunal she had surgery three weeks ago and this was conducted by Dr Jeffs. This was after a further MRI had been done. The surgery involved segmental internal fixation, posterior bone graft and spinal fusion. She said she had two fractures in her spine at L3 and this disc has been removed and replaced with an artificial disc and there has been a cage placed around the two fractures. There had been damage to the L2 to L5 discs and L3 had been removed in order to address the numbness in her legs and to release and relieve nerve pain which also resulted in loss of balance. She is presently not allowed to do anything until her post-surgical appointment on 3 August 2017. She is unaware of any plans for a rehabilitation program. She told the Tribunal that she also has a scoliosis at the base of the spine which is something that surgery cannot fix. This was one of the reasons the L3 disc was removed and replaced. Ms Jansen said one reason for the surgery was to take pressure off the other discs. Dr Jeffs had indicted to her that the surgery was more complicated than he thought.
26. Ms Jansen told the Tribunal that she is allowed to walk but is not allowed to lift and cannot do any housework. She has also been given the use of a wheelchair. She has been told that she will have physiotherapy and do strengthening exercise of core muscles such as Pilates.
27. Ms Jansen confirmed she used to be a hairdresser but had to stop this because of increasing problems with being able to do her work as a result of her spinal condition. She decided to return to study and retrain. She is studying towards a business degree and is doing three units each semester and presently receiving ABSTUDY and parenting payment. She has three children in her care aged nine, 13 and 14 and is separated from her partner. She confirmed that she experienced pain in her back after exercising and found that the next day she was unable to move. She took anti-inflammatory medication but this did not help and the pain increased. She had to go to the emergency department where she was given an epidural. She was then seen by Mr Narula who she said did not do many investigations but referred her to physiotherapy. She has also seen Dr Finch, a pain specialist who performed nerve blocks, which did not help and he may have blocked the wrong area. She also saw Dr Bedou a pain specialist who changed her medication. She was referred to Dr Jeffs for a second opinion.
28. Ms Jansen said that the recent surgery will not improve her function as there were four damaged discs and the condition is never going to stabilise. All she can expect is to manage the pain and that the scoliosis cannot be fixed. She said that Dr Jeffs will argue this is a stable condition and it has been fully treated.
29. Ms Jansen said she is unable to sit or stand for more than 20 minutes and since the surgery has not had nerve spasm. She takes a lot of medication to manage the pain levels including polexia, Celebrex and tramadol. The only difference since the surgery is that the spasms have stopped but the level of pain is much the same.
30. Ms Jansen told the Tribunal that she did a STEPS program which was to address her chronic pain. This involved seeing a psychologist, a physiotherapist and a pain specialist and the program was for two full days in February/March 2017. (T2 9)(R1)
The Secretary contended:
60. The Secretary accepts that the Applicant's spinal condition was fully diagnosed during the qualification period, based on the reports of Mr Narula from 2015 and 2016 and the MRI of the Applicant's lumbosacral spine on 14 December 2016, which indicated multilevel degenerative lumbar spondylosis [T16 p133].
61. The Secretary contends, however, that the Applicant's spinal condition was not fully treated and stabilised at the qualification period, 4 October 2016 to 3 January 2017, as the Applicant was continuing to see specialists in relation to the treatment of her spinal condition.
62. The Applicant's first consultation with Dr Jeffs, neurosurgeon, was not until late March 2017, over two months after the end of the qualification period.
63. The Applicant then underwent L3/4 fusion surgery on or about 24 June 2017, which was over five months after the end of the qualification period. [Annexure C].
64. The fact that the Applicant sought further treatment in the form of surgery after the qualification period indicates that the spinal condition was not fully treated or stabilised prior to or during 4 October 2016 to 3 January 2017.
65. here is a strong line of precedent concerning treatment that has occurred shortly after the claim period. For example, in the case of Livermore and Secretary, Department of Social Services [2013] AATA 747 Senior Member Toohey found at [20] that:
As Mr Livermore was still awaiting surgery during the relevant period, his back condition was not fully treated and stabilised during that time, and it cannot be given a rating on the Impairment Tables.
66. In the case of Toma and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 379 Member Breen found, at [34] to [35]:
Given that the surgery for the right-sided hernia took place after the DSP qualifying period, it is clear that at the time of Mr Toma's DSP claim, this condition had not been fully treated. As of October 2012, Mr Toma had not had surgery for his left sided hernia. Therefore, Mr Toma's left-sided hernia had also not been fully treated at the time of his DSP claim.
67. In the case of Campbell and Secretary, Department of Family and Community Services [2004] AATA 1201 Member Hunt found at [13] that:
I am satisfied that at 3 September 2003 Mr Campbell could not demonstrate satisfaction of the criterion that he had permanent conditions or injuries warranting an impairment rating of 20 points under the Tables. It follows that he cannot satisfy section 94(1)(b). He cannot satisfy this requirement until his condition has been fully investigated, treated and stabilised. As he is awaiting surgery the injury or injuries requiring surgery have not been stabilised and, it follows, cannot be found to be permanent.
68. There is also the case of Harvey and Secretary, Department of Social Services [2014] AATA 364.
69. The Secretary's position is further supported by the post-operative reports of Dr Jeffs dated 25 August 2017 [T1 p3] and Dr Witte dated 8 March 2018 [Annexure BJ, which indicate that it was only after surgery was performed that the Applicant's spinal condition could be considered fully stabilised and treated.
The Tribunal having carefully examined the medical reports, scans, and the evidence before it, the Tribunal concludes that the spinal condition of the Applicant was fully diagnosed during the qualification period. It does not however find that the condition during the qualification period was fully treated and stabilised.
The Tribunal has looked at the ARO report of 12 May 2017 which states:
According to the medical evidence, your condition of degenerative lumbar disease is fully diagnosed. However, the evidence indicates that you will undergo surgical intervention within the next two years. Therefore this condition is not considered optimally treated and stabilised and cannot be rated against the impairment tables. (T23 150)(R1)
Evidence before the Tribunal shows the spinal condition was still being treated and stabilised outside of the qualification period.
As to the Applicant’s condition of depression (mental health), the Impairment tables in the Determination state:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist) (T3 44)(R1).
This therefore means this condition at the time of the qualification period was not fully diagnosed, fully treated and fully stabilised.
Whether the Applicant has a continuing inability to work
The Tribunal finds that the Applicant has zero points under the Impairment Tables and therefore fails to satisfy section 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider section 94(1)(c) of the Act.
DECISION
For the reasons given above, the Applicant does not qualify for DSP. The decision of the AAT1 is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.......[sgd]................................................................
Associate
Dated: 07 September 2018

Date(s) of hearing: 20 August 2018

Applicant: In person

Solicitors for the Respondent: Daphne Jones-Bolla, Sparke Helmore

Date(s) of hearing:	20 August 2018
Applicant:	In person
Solicitors for the Respondent:	Daphne Jones-Bolla, Sparke Helmore