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

Jones and Secretary, Department of Social Services (Social services second review) [2016] AATA 534 (27 July 2016)

Division

General Division

File Number(s)

2015/5910

Re

Leanne Jones

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 27 July 2016

Place Sydney
The decision under review is affirmed.

................................[sgd]........................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - claim for disability support pension – physical and psychological impairments – assessment and rating of impairments – physical impairments related to subjective experience of pain – pain not consistent with objective evidence – psychiatric conditions - treatment affected by drug dependency – not fully treated and fully stabilised – minimum requirement for 20 impairment points not established – decision affirmed
LEGISLATION
Social Security Act 1991, s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
27 July 2016

Leanne Jones lodged a claim for disability support pension (DSP). The claim was rejected. She applied for review, but the rejection decision has been affirmed. Unhappy with this result, she has applied for further review.
Facts
The brief facts that are established by materials before the Tribunal are as follows.
On or about 7 March 2011, Ms Jones was injured in employment. Dr Evans, an orthopaedic surgeon, described the injury in the following way –
“… she fell from a ladder when a shelf it was resting on collapsed and she fell probably something over a metre onto the ground. The worst pain was in the low back and shooting up the spine to a higher level. She also developed pains in the right hip and right knee.”[1]
[1] T4 folio 103.
Ms Jones was incapacitated for work. It appears that she obtained treatment and underwent rehabilitation, although no direct reports of any such treatment and rehabilitation have been given to the Tribunal. She returned to work on 24 August 2011 but continued to experience periods of incapacity. She was certified unfit for any work in November 2012 and subsequently she has not worked since.
Ms Jones claimed and was paid periodic compensation (details of the compensation is not presently established or material in these proceedings). I understand that this continued until 25 February 2015[2] – it was the cessation of these payments that caused her to seek income support in the form of DSP.
[2] T13 folio 203.
In or about April 2011, Ms Jones’ son, Ryan, claimed carer payment in respect of his mother. Medical reports for this purpose were produced by Dr Malek, Ms Jones’ treating general practitioner,[3] on 11 May 2011 and by Dr Sheikh, a rehabilitation and pain management consultant, on 5 July 2011 and 5 September 2011.[4] On these reports, it appears that Ms Jones was diagnosed with low back pain, right hip and right knee pain, and depression. The doctors, particularly Dr Sheikh, reported that Ms Jones was quite severely disabled and in need of extensive care at that time. This does not sit well with Dr Evans’ report of Ms Jones returning to work on 24 August 2011. I am unable to resolve this conflict on the present materials.
[3] T12 folios 165-170.
[4] T12 folios 171-182.
On 28 June 2013, Ms Jones was involved in a motor vehicle accident. Dr Evans described her injuries in the following way –
“She was shaken about in the car after the collision, restrained by her seat belt. The main symptoms were in the neck. There was some aggravation of the back as well at that time.”[5]
[5] T4 folio 104.
Ms Jones complained of persistent disabling pain in her lower back, legs and neck. On 13 June 2014, Dr Evans reported that –
“The pains that she has are much greater than one can explain from the physical point of view. I have no explanation for her low back pain and I do not have any good explanation for her continuing neck pain either.”[6]
[6] Ibid, folio 105.
The doctor reviewed a CT scan taken on 11 October 2013 and an MRI scan taken on 7 April 2014. He reported that these revealed mild degenerative disease in Ms Jones’ cervical spine (“mild disc “protrusions” C4/5 and C5/6 with no canal stenosis or foraminal narrowing”) and no abnormality in her lumbar spine.[7] He also referred to Ms Jones’ history of drug dependence –
“She was on the Methadone programme for ten years while she was working… I note that she is still on the programme. She has changed to some Morphine product now which she did tell me about but I forgot the name of. Anybody on this sort of pain relief becomes desensitised and becomes vulnerable to minor pain. Her problems seem now to be essentially psychosocial rather than physical the secondary effects being physical.”[8]
[7] Ibid, folio 104.
[8] Ibid, folio 105.
On 23 February 2015, Ms Jones signed a claim for DSP.[9] It appears that this was lodged on 13 March 2015.[10] The Secretary asserts that Ms Jones lodged a claim for DSP on 30 April 2015. I can find no record of this.
[9] T7 folio 146.
[10] T13, folio 202; T10 folio 157.
On 13 March 2015, Dr Malek reported that Ms Jones had the following medical conditions – cervical spine and lumbar spine injuries; depression, anxiety and suicidal thoughts; diabetes mellitus; and hypertension.[11]
[11] T6 folios 111, 114 and 117.
On 29 April 2015, a Job Capacity Assessment was undertaken. In the resulting report on 21 May 2015, the Assessors reported “longstanding history of difficulties with drug dependency” and “The client reported current relapse in drug dependency impacting on all aspects of daily living”.[12]
[12] T8 folios 149 and 150.
On 27 May 2015, Centrelink notified Ms Jones that her DSP claim had been rejected.[13]
[13] T9.
Ms Jones requested review. On 12 June 2015, an Authorised Review Officer decided to affirm the rejection decision.[14]
[14] T10 and T11.
Ms Jones applied for review. On 6 October 2015, the Social Services and Child Support Division of this Tribunal decided to affirm the rejection decision.[15]
[15] T2.
Ms Jones applied for further review.
Issues
The issue to be decided is whether Ms Jones meets the minimum requirements to qualify for grant of DSP. The DSP qualification requirements are set out in s 94 of the Social Security Act 1991 (the Act). The three key criteria of present relevance are set out in s 94(1) –
(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) the person has a continuing inability to work;
…
These qualification criteria must be satisfied on the day the claim was lodged or within 13 weeks thereafter (the qualification period). If the qualification criteria are not satisfied within this period, DSP is not payable in respect of the claim.
It follows that, Ms Jones’ claim must be assessed during the qualification period commencing on 13 March 2015 and ending on 12 June 2015.
Impairment
The Secretary asserts that Ms Jones suffered from back pain, depression, anxiety, diabetes and hypertension during the qualification period, and these conditions are impairments for the purposes of s 94(1)(a).
I accept that Ms Jones suffered from these medical conditions, as well as drug dependence, during the qualification period. On the reports of Dr Malek and Dr Evans, it is probable that Ms Jones suffered from cervical and lumbar spine pain with associated pain radiating into both legs and loss of range of motion. The cause of these impairments is not clear – this is a matter to which I will return. It is reasonably clear that Ms Jones was drug-dependent during the qualification period and that her psychological and cognitive functions were impaired.
That being so, I am satisfied that Ms Jones had physical and psychological impairments during the qualification period, satisfying the first qualification requirement for DSP under s 94(1)(a).
Impairment rating
In order to address the second essential qualification requirement under s 94(1)(b), Ms Jones’ impairments must be assessed under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
To satisfy this qualification criterion, a rating of 20 or more points is required, applying the Tables set out in Part 3 of the Determination.
For this purpose, Part 2 of the Determination sets out rules that must be followed. A rating may only be assigned to an impairment that results from a ‘permanent’ medical condition where the impairment is expected to persist for more than 2 years. If these tests are not made out by evidence, no rating can be assigned for the particular impairment.
For a medical condition to be treated as ‘permanent’, the condition must be fully diagnosed, fully treated and fully stabilised: s 6(4). When deciding if a medical condition is fully diagnosed and fully treated during the qualification period, the matters set out in s 6(5) must be considered. The tests to be applied when determining if a medical condition is fully stabilised during the qualification period are set out in s 6(6) and (7).
Lumbar spine
Ms Jones’ persistent complaints of low back pain and pain radiating into her legs are clear in the reports of Dr Malek, Dr Sheikh, Dr Evans and Dr Bertucen. The cause of these symptoms and related impairments is rather opaque.
Dr Malek attributes the symptoms and related impairments to the continuing effects of the injuries to her cervical and lumbar spine in March 2011 and June 2013. The causal connection between Ms Jones’ complaints of low back pain (and pain radiating into her legs) and the injuries she sustained in 2011 and 2013 is not readily apparent, however. The present materials do not establish the precise nature or diagnosis of the alleged injuries to Ms Jones’ back. Dr Malek does not provide a diagnosis of her low back pain or an explanation of how the pain symptomatology is related to her previous injuries.
Dr Evans made no firm diagnosis and could provide no explanation for her low back symptoms in June 2014, several months prior to the qualification period. He reported that her “orthopaedic injuries” had resolved and there was no physical cause to explain the degree of impairment or disability Ms Jones displayed - “Her problems seem now to be essentially psychosocial rather than physical the secondary effects being physical”.[16] Dr Evans took into account Ms Jones’ history of drug dependence and use of opioid medications for pain relief – “Anybody on this sort of pain relief becomes desensitised and becomes vulnerable to minor pain”.[17] Even though Dr Evans’ report pre-dates the qualification period by a number of months, his findings on examination of Ms Jones are relevant matters to take into account when determining these questions with reference to that period. Dr Evans had regard to CT and MRI scans of Ms Jones’ cervical and lumbar spine, and those scans apparently support the conclusions he reported.
[16] T4 folio 106.
[17] Ibid.
While a precise neurological or musculoskeletal diagnosis of Ms Jones’ low back injury is not presently established, and the cause of Ms Jones’ low back pain symptoms during the qualification period is not clear, it does not follow that Dr Malek’s reported diagnosis of “cervical spine and lumbar spine injury” must be rejected. I think a broad interpretation of the word ‘diagnosed’ may be adopted for present purposes.
The persistence of pain without overt physical or pathological explanation after an injury is a vexed and difficult area of medicine, over which medical minds and experts may differ. One only has to consider debate about such matters in the public media to understand the present limits of medical science. I do not think that this should stand in the way of a diagnosis of persistent post-injury pain. Furthermore, even if the post-injury experience of pain is not, itself, diagnosed as a medical condition, it may well be within the meaning of ‘impairment’ if the injury occurred and medical evidence establishes that the resulting perception of pain is real and the related impairment is verified.
It appears that Ms Jones obtained medical treatment from Dr Manohar, a rheumatologist, and this included planned radiofrequency ablation to her lumbar spine. One would not expect a rheumatologist to consider treatment of that kind appropriate without formulating a diagnosis and accepting the complaint of pain or impairment was real. Unfortunately there is no evidence from Dr Manohar before the Tribunal.
Even though Dr Evans could not provide an explanation for Ms Jones’ low back pain symptomatology, he did not suggest that her perception of pain was not real, or that she was malingering. He carefully examined and reported her pain symptomatology and related physical impairments.
In view of this, and having regard to the present evidence and the matters set out in s 6(5) of the Determination, two possible explanations for Ms Jones’ low back pain symptomatology lie open: her pain is related to the injuries she sustained in 2011 or 2013 as proposed by Dr Malek, although the mechanism for a causal relationship of this kind has not been explained; or the symptoms are attributable to psychosocial variables or causes as postulated by Dr Evans. In each case, a diagnosis of the pain symptoms is not clearly established.
For this reason, I am not persuaded that Ms Jones’ low back pain condition was ‘fully diagnosed’ during the qualification period. At that time, there was significant doubt about the cause of her pain symptomatology and, if there was a causal relationship with the injuries she suffered in 2011, this is not established by the present evidence.
That said, if one accepts Dr Malek’s diagnosis of lumbar spine injury is sufficient to satisfy the ‘fully diagnosed’ test under s 6(4) and s 6(5) of the Determination, the next questions are whether this medical condition was fully treated and fully stabilised during the qualification period.
It appears that Ms Jones was due to undergo radiofrequency treatment[18] to alleviate pain symptoms in her lumbar spine on 15 May 2015 and thereafter,[19] but she was concerned that her admission to a drug rehabilitation program as an in-patient may interrupt this treatment. I accept that radiofrequency ablation treatment by Dr Manohar was planned at that time. It appears that treatment of this kind was efficacious in reducing Ms Jones’ neck pain,[20] but the present evidence does not establish that Ms Jones undertook such treatment for her lumbar spine symptoms.
[18] T6 folio 111.
[19] T8 folio 148.
[20] T1 folios 5 and 7.
At this point it is appropriate to note that, in her DSP claim form, Ms Jones ticked ‘Yes’ to the question ‘Are you expecting to have an operation in the future?’.[21] The nature of the planned operation is not clear, however. Ms Jones nominated Dr Manohar as a specialist who could provide detailed information about her condition.
[21] T7 folio 131.
On 23 October 2015 Dr Bertucen, a consultant psychiatrist, reported –
“… Ms Jones chronically misses appointments with Dr Manohar as she is often intoxicated or “passed out”. She still experiences dull central lower back pain and paraesthesia into both feet described as “three to four out of ten” in severity at rest.”[22]
“Between April and June 2015, Ms Jones continued to use intravenous heroin at least two or three times per week as well as prescribed opiate analgesic medications (oxycontin 40mg, up to three to four tablets per day) which she ingested orally and obtained from a number of local GP’s (Dr Malek her usual GP refused to prescribe them for her).
In June 2015, Ms Jones voluntarily entered the Corella Lodge detox facility… Nonetheless, following the six day admission Ms Jones relapsed into heroin use after two days.
Over the last few months, Ms Jones has used heroin intravenously at least weekly on average, Oxycontin up to 160mg per day and Diazepam 20-30mg per day…” [23]
[22] Ibid, folio 5.
[23] Ibid, folio 7
I note that, on 18 January 2016, Dr Puranik, a general practitioner, requested a report about Ms Jones from Dr Manohar in which he says –
“Leean [sic] has been seeing me periodically about twice a month and requests me to prescribe Oxycontin 40mg 28 tabs for bad neck & back pain.
She also takes Antenex 5mg 2 to 4/day.
I understand you have been seeing her.
I appreciate your report regarding Leann.”
I should say now, having regard to what the Full Court said in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen,[24] that I do not consider Ms Jones’ drug dependence a ‘compelling reason’ for her not to undertake treatment such as the radiofrequency ablation treatment that, otherwise, was open to her.
[24] [2008] FCAFC 48 at [39]-[40].
In these circumstances, where treatment for Ms Jones’ lumbar spine condition was planned but appointments were missed, I do not think that it can properly be said that the medical condition affecting her lower back was fully treated and fully stabilised. I am reasonably satisfied that it was not.
For these reasons, I am satisfied that Ms Jones’ lumbar spine condition, however described, was not fully diagnosed, or fully treated and fully stabilised during the qualification period.
There are two further matters to address on this point.
Firstly, Ms Jones argues that the level of her disability resulting from the physical injuries she sustained in March 2011 has been underestimated. She relies upon reports by Dr Malek and Dr Sheikh that were prepared in the context of her son’s claim for Carer Payment in 2011. On this material, it appears that she was quite severely disabled, in part at least, as a result of low back pain and right leg pain at that time.[25] These reports were produced soon after Ms Jones was injured at work on 7 March 2011. The present evidence does not establish that the level of her disablement or impairment as a result of her low back condition continued at the same level from 2011 to the qualification period in 2015. She returned to work for a time on 24 August 2011 and continued to work to some extent until November 2012, when she was certified unfit. The evidence of Dr Evans suggests that there was a substantially lower level of impairment in June 2014 than the disablement Dr Sheikh reported in July and September 2011. The 2011 reports of Dr Malek and Dr Sheikh do not shed light on the permanence of Ms Jones’ lumbar spine condition during the qualification period in 2015, or the extent of impairment that was present at that time.
[25] T12 folios 167-169, 173-175 and 179-181.
Secondly, as Ms Jones’ experience of lumbar spine pain and pain radiating into her right hip and legs is subjective and, on Dr Evans evidence, it may be accentuated or sensitised by use of opioid medications, it is necessary to consider psychosocial as well as physical causes, or potential causes, of her pain and related impairments.
The extent to which psychosocial factors, including drug dependency and psychiatric conditions, contributed to cause the pain of which Ms Jones complained is difficult to determine however. As will appear, I am satisfied that her drug dependency and psychiatric medical conditions were not fully treated and fully stabilised. Furthermore, it is not established that her low back pain symptomatology is attributable to her drug dependency or a psychiatric condition.
That being so, I am unable to assign a rating to the pain and related impairments in Ms Jones’ lumbar spine, lower back or lower limb functions – the underlying medical condition, or the pain itself, is not fully diagnosed, or fully treated and fully stabilised, and it is not ‘permanent’ for the purposes of the Determination. With regard to pain-related impairment, the present evidence does not establish that this was likely to persist for more than 2 years – there is a real prospect that further treatment by Dr Manohar may alleviate pain symptoms and related impairment to some extent.
Cervical spine

Issues of diagnosis arise in respect of her cervical spine. While there is some radiological imaging evidence of pathological changes or degenerative disease in Ms Jones’ cervical spine, the comments I have made about the difficulty of diagnosis in respect of her lumbar spine condition apply equally to diagnosis of her cervical spine condition.
Issues of diagnosis aside, Dr Bertucen reported on 23 October 2015 that Ms Jones obtained benefit from radiofrequency ablation treatment of her cervical spine by Dr Manohar, and that further treatment of this kind was planned. Radiofrequency treatment of Ms Jones cervical spine condition is referred to in the Job Capacity Assessment report on 21 May 2015.
That being so, for reasons similar to those I have given in respect of her lumbar spine condition, I am not persuaded that Ms Jones’ cervical spine condition can be taken to be fully diagnosed, or fully treated and fully stabilised during the qualification period, when plainly it was not.
The comments I have made about psychosocial factors and interrupted treatment apply equally to this condition.
For these reasons, I am unable to assign a rating for pain and related impairments to Ms Jones’ cervical spine and neck functions.
Depression and anxiety
It appears that Dr Bertucen diagnosed Ms Jones with major depressive disorder from 2011.[26] On 2 March 2016, Dr Kumar, a consultant psychiatrist, reported “a past history of depression, though she has not seen psychiatrists”.[27] He diagnosed “major depression on a background of substance abuse”.[28]
[26] T1 folio 7.
[27] Report by Dr Kumar, 2 March 2016, page 1.
[28] Ibid, page 2.
The reports of Dr Malek and Dr Sheikh from 2011 indicate the presence of depression, anxiety and cognitive impairments at that time.[29] If this high level of disablement or impairment was present in June 2014, one might expect Dr Evans to have noted or commented about it, but the doctor reported –
“I note that currently she is also under the care of a psychiatrist who gives her a SOFAS rating of 55 which apparently coincides with moderate symptoms or any moderate difficulty in social and occupational skill functioning. The psychiatrist rates her as having Major Depression associated with her chronic pain and substance abuse history.”[30]
[29] T12 folios 169, 175 and 181.
[30] T4 folio 104.
Dr Malek and Dr Bertucen report that Ms Jones consulted Dr Saker, a psychiatrist and Mr Medhat Metry, a psychologist. There is no direct evidence from Dr Saker or Mr Metry.
On 17 March 2015, Dr Malek reported the presence of “Depression, Anxiety, Suicidal thoughts” that required further treatment with “cognitive therapy”. He reported that the impact of this condition was expected to persist for more than 2 years but fluctuate within the next 2 years, but he did not indicate the nature or extent of any functional impact resulting from it.[31]
[31] T6 folios 114-116.
On 21 May 2015, the Job Capacity Assessors reported –
“The client reported that she was recently referred for 5x sessions of counselling with Mr Metry Medhat (Psychologist) under the Mental Health Care Plan, however noted that, at the time of the assessment she had not commenced counselling. The client reported that at the time of the assessment she had not commenced psychiatric intervention with Dr Saker however indicated that she would pursue further psychological intervention and commence psychiatric intervention following completion of her [drug] rehabilitation programme. The client also reported that at present she was not taking antidepressant medication.”[32]
[32] T8 folios 149-150.
On 13 October 2015, Dr Bertucen reported –
“Since the last interview [9 May 2014],[33] Ms Jones claimed that she has been unable to afford to see her former psychiatrist Dr Stuart Saker, however continues to attend her psychologist Medhat Metry every two weeks.”[34]
[33] T1 folio 3.
[34] Ibid, folio 4.
As can be seen, on Dr Bertucen’s report, Ms Jones was obtaining psychological treatment from Mr Metry on a fortnightly basis in October 2015, whereas, proceeding on the basis that the Job Capacity Assessor’s report of information provided by Ms Jones is correct, in May of that year, during the qualification period, she had not yet commenced that treatment.
Dr Bertucen reported the following diagnoses and impairments –
“Therefore at present in my opinion, the diagnoses with respect to MsJones [sic] is Major Depressive Disorder and chronic polysubstance dependence/abuse, (benzodiazapines, heroin and prescribed opiate medication).
…
Ms Jones remains significantly psychiatrically disabled as a result of her symptoms across a number of domains of functioning (e.g. self care and hygiene, diet and regular sleep patterns, social functioning, independent travel, relationship functioning and employability).”[35]
“Ms Jones receives significant care from her son Ryan with regards to errands, driving, other aspects of personal care and cooking. However, at the present stage this assistance in my opinion is largely in the context of her incapacity related to depressed mood and substance abuse.”[36]
[35] T1 folio 7.
[36] T1 folio 8.
Even though on this evidence it is clear that Ms Jones was quite disabled by her psychiatric condition in October 2015, the extent to which her “ongoing relapse into previous patterns of opiate use which had been dormant for the previous 15 years (on regular buprenorphine therapy)”[37] was a factor in the functional impact of psychiatric illness on her ability to function is difficult to determine. The question is whether those impairments were likely to persist for more than 2 years.
[37] T1 folio 7.
On this point, Dr Bertucen’s reported prognosis, albeit four months after the qualification period ended, is relevant and compelling –
“At this stage in my opinion, prognosis is poor given the ongoing pattern of heroin use and opiate/benzodiazepine abuse and the recent overdoses (the most serious of which in April required hospitalisation). Prognosis is unlikely to improve significantly until remission of the abuse condition has been achieved.” [38]
[38] T1 folio 7.
This prognosis is supported by Dr Kumar’s referral of Ms Jones to the Bankstown Hospital on 2 March 2016, in which he says –
“Overall, based on this assessment the provisional working diagnosis appears to be major depression on a background of substance abuse. Since the risks are high at this stage, I have recommended that she bee [sic] admitted and treated as an inpatient.”
On this evidence, it is quite clear that Ms Jones’ psychiatric condition was, at least in part, causally related to her drug dependence and substance abuse conditions. The significant difficulty this poses, for present purposes, is in respect to the treatment and stabilisation of her major depressive disorder during the qualification period.
I accept Dr Bertucen’s evidence that effective treatment for this psychiatric condition is unlikely until remission of her substance abuse condition is achieved. And that is only likely to occur if Ms Jones obtains treatment and rehabilitation for her drug dependency. As this had not occurred during the qualification period, I do not think that her psychiatric medical condition can be taken to be fully treated and fully stabilised at that time.
Furthermore, I am not persuaded that Ms Jones’ major depressive disorder was fully treated or fully stabilised during the qualification period. At that time fortnightly psychological treatment with Mr Metry had not yet been undertaken and Ms Jones had not consulted Dr Saker or Dr Bertucen since May 2014.
For this reason, Ms Jones major depressive disorder was not ‘permanent’ during the qualification period and no rating can be assigned to any resulting impairments under theDetermination.
Drug dependence
It will be clear by now, that Ms Jones has a history of drug dependency. Approximately 10 years before her accident in 2011 she commenced regular Methadone therapy. She effectively managed her drug dependence in this way for many years until sometime early in 2015. Unfortunate relationship circumstances caused a relapse of this condition and resumption of her previous pattern of opiate use. It will also be clear that this condition is interwoven with her psychiatric condition and it is a significant factor in the assessment of impairments resulting from other conditions that afflict her.
As can be seen in the Job Capacity Assessment report on 21 May 2015, Ms Jones’ relapse into previous patterns of opiate use was evident during the qualification period. The evidence of Dr Bertucen and the Job Capacity Assessor clearly establishes that this relapse was not treated or stabilised during the qualification period, at least from the Assessment date on 29 April 2015. Dr Kumar reported that it was ongoing in March 2016. Dr Malek makes no reference to Ms Jones’ drug dependency in his 17 March 2015 report.
Dr Bertucen’s evidence of the disabling effect of drug dependence and major depressive disorder on Ms Jones’ ability to function is very clear – by his account she was significantly disabled across several functional domains. In all likelihood, doing the best with the available evidence, a similar comorbidity and degree of impairment was likely present during the qualification period.
This notwithstanding, the present evidence does not establish that Ms Jones’ impairments of this kind were likely to persist for at least 2 years from the qualification period. It may be inferred from Dr Bertucen’s prognostication that improvement may be possible once remission of the substance abuse condition is achieved.
As I have said, this conclusion is reinforced by the high risks Dr Kumar identified in March 2016, which caused him to refer Ms Jones for in-patient treatment at the Bankstown Hospital. The present materials do not illuminate the result of that referral.
In such circumstances of interwoven conditions, high risk, incapacity and significant disablement, the Determination is a blunt instrument that provides little flexibility.
Even if I accept that the condition of substance abuse or drug dependence is permanent, having been present for more than 15 years, albeit dormant while Ms Jones maintained regular methadone or buprenorphine therapy, on balance, the present materials do not establish that impairments resulting from this condition during the qualification period were more likely than not to persist for more than 2 years.
For this reason, no rating under Table 6 of Part 3 of the Determination can be assigned.
Diabetes mellitus
On Dr Malek’s evidence, Ms Jones has suffered from diabetes mellitus since 1991. On 13 May 2015, he reported that this condition was generally well managed and it caused minimal or limited impact on her ability to function.[39]
[39] T6 folio 117.
This assessment is reasonably consistent with that of Dr Evans on 13 June 2014.[40]
[40] T4 folio 105.
In the Job Capacity Assessment report of 21 May 2015, Ms Jones is said to have reported only minor symptoms of this condition.[41]
[41] T8 folio 151.
It can be accepted that Ms Jones’ diabetes is ‘permanent’ for the purposes of the Determination. Nevertheless, the present evidence is not sufficient to establish that the condition caused impairment that would attract a rating greater than 0 points under the Impairment Tables.
Hypertension
Dr Malek reported that Ms Jones has suffered from hypertension since 2012. He also reported that this condition was generally well managed and it caused minimal or limited impact on her ability to function.[42]
[42] T6 folio 117.
The 21 May 2015 Job Capacity Assessment report states that Ms Jones reported the condition is managed by medication and that she experienced no symptoms of this condition.[43]
[43] T8 folio 151.
The present evidence does not establish that Ms Jones’ hypertension was fully treated or fully stabilised during the qualification period, or that the condition resulted in impairment that would attract a rating greater than 0 points under the Impairment Tables.
No rating can be given for any impairment resulting from this condition.
Overall impairment rating
In sum on these points, the overall rating of Ms Jones’ physical and psychological impairments is 0 points under the Determination.
This is so despite the strong likelihood that her ability to function was significantly impaired during the qualification period. The medical conditions that were the cause of her impairments had not been fully treated or fully stabilised at that time. In those circumstances and for that reason, the resulting impairments cannot be assigned a rating under the Determination.
It follows that Ms Jones does not satisfy the second essential test to qualify for DSP set out in s 94(1)(b).
For this reason, her claim cannot succeed.
Conclusion
Ms Jones had physical and psychological impairments during the qualification period. These impairments do not attract a rating of 20 or more points under the Determination. For this reason, she is not qualified for DSP.
It is not necessary to proceed further to determine whether or not she had a continuing inability to work for the purposes of s 94(1)(c) of the Act.
Decision
The decision under review is affirmed.

I certify that the preceding 91 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
.................................[sgd].......................................
Associate
Dated 27 July 2016

Date(s) of hearing 21 June 2016

Advocate for the Applicant Ryan Hughes

Solicitors for the Respondent Department of Human Services

[2016] AATA 534

27 July 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Division	General Division
File Number(s)	2015/5910
Re	Leanne Jones
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	27 July 2016
Place	Sydney

Date(s) of hearing	21 June 2016
Advocate for the Applicant	Ryan Hughes
Solicitors for the Respondent	Department of Human Services