JPXX and Secretary, Department of Social Services (Social security second review)

[2025] ARTA 1264

JPXX and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1264 (21 July 2025)

Applicant:JPXX

Other Parties:  Secretary, Department of Social Services

Tribunal Number:                2024/4722

Tribunal:Senior Member T Hamilton-Noy (second review) 

Place:  Melbourne 

Date:21 July 2025

Decision:The Tribunal affirms the decision under review.

.....................[sgd]...................................................

Senior Member T. Hamilton-Noy

Names used in all published decisions are pseudonyms.  Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999 (Cth).

Catchwords

Disability support pension claim – chronic pain – post-traumatic stress disorder – adjustment disorder with mixed anxiety and depression – not fully diagnosed, treated and stabilised – no impairment rating

Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Statement of Reasons

Background

1. This matter relates to the Applicant’s qualification for disability support pension.

2. The Applicant lodged a claim for disability support pension with the Respondent (Services Australia – Centrelink) on 20 June 2022 in respect of the conditions of musculoskeletal damage, post-traumatic stress disorder and depression.  This claim was rejected by an employee of Centrelink on 7 September 2022.

3. The Applicant requested an internal review of the decision and on 27 March 2023 an authorised review officer of Centrelink affirmed the decision to reject the claim for disability support pension.

4. The Applicant made an application to the Administrative Appeals Tribunal (the AAT) on 8 March 2024.

5. On 25 June 2024, at first review at the AAT, the decision to reject the claim for disability support pension was affirmed, on the basis that the Applicant’s medical conditions attracted a total impairment rating of 5 points.  As the Applicant did not have an impairment rating of at least 20 points, he did not meet the qualification requirements for disability support pension.

6. The Applicant made an application to the second tier of the AAT on 9 July 2024.

7. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

8. The Tribunal held a hearing with the Applicant on 8 July 2025, where the Applicant participated by telephone and gave evidence on affirmation.  A representative for the Respondent also participated in the hearing by telephone.

Issues and relevant law

1. The legislative requirements relevant to this matter are contained in the Social Security Act 1991 (the Social Security Act) and the Social Security (Administration) Act 1999 (the Social Security Administration Act). The relevant Determination in place at the time of claim, which sets out the circumstances in which points may be allocated for a condition, is the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

2. Section 94 of the Social Security Act sets out the qualification requirements for the payment of disability support pension. The Tribunal must consider in this matter whether the Applicant meets the requirements set out in subsection 94(1) of the Social Security Act in respect of the claim lodged with Centrelink on 20 June 2022, that is, whether:

   a. The applicant has a physical, intellectual or psychiatric impairment (paragraph 94(1)(a) of the Social Security Act);

   b. The Applicant’s impairment is of 20 points or more under the Impairment Tables (paragraph 94(1)(b) of the Social Security Act); and

   c. The Applicant has a continuing inability to work or the Applicant is participating in the program administered by the Commonwealth known as the supported wage system (paragraph 94(1)(c) of the Social Security Act).

3. The Determination establishes rules for applying the Impairment Tables and contains 15 Impairment Tables under which an impairment rating may be allocated.  An impairment is defined in the Determination to be a loss of functional capacity affecting a person’s ability to work which results from the person’s condition.

4. Section 5 of the Determination notes that the Tables are function-based rather than diagnosis-based and that they are designed to assign ratings to determine the level of functional impact and not to assess conditions.  The Determination states that the impairment of a person must be assessed on the basis of what they can, or could, do and not on the basis of what they choose not to do or what others do for them (subsection 6(1) of the Determination).

5. An impairment rating is only able to be assigned under an Impairment Table after a person’s medical history has been considered (subsection 6(2) of the Determination) and where the condition is permanent and where it is more likely than not to persist for more than two years (subsection 6(3) of the Determination).  A condition is considered permanent where it has been fully diagnosed by an appropriately qualified medical practitioner, fully treated, fully stabilised and is more likely than not to persist for more than two years (subsection 6(4) of the Determination).

6. In considering whether a condition is fully diagnosed and fully treated, the Tribunal must consider whether it has been diagnosed by an appropriately qualified medical practitioner, whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years (subsection 6(5) of the Determination).

7. In considering whether a condition is fully stabilised, the Tribunal must consider whether the person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years.  In the alternative, the Tribunal must consider whether, if the person has not undertaken reasonable treatment, significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment, or there is a medical or other compelling reason for the person not to undertake reasonable treatment (subsection 6(6) of the Determination).

8. The Determination notes that there is no Table relating specifically to pain.  When assessing pain, subsection 6(9) of the Determination requires the Tribunal to consider:

   ·That acute pain is a symptom which may result in short-term loss of functional capacity in more than one area of the body; and

   ·That chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

   ·Whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised.

9. The Determination further provides that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence (section 8 of the Determination).  Single conditions causing multiple impairments are to be assessed under each relevant Impairment Table; multiple conditions causing a single impairment are to be assigned a single rating in relation to the common or combined impairment (section 10 of the Determination).

10. Subsection 41(1) of the Social Security Administration Act provides that, unless another provision of the social security law provides otherwise, a social security payment becomes payable on a person’s start day. Section 42 of the Social Security Administration Act states that, for the purposes of the social security law, a person’s start day in relation to a social security payment is the day worked out in accordance with Schedule 2.

11. Clause 3 of Schedule 2 to the Social Security Administration Act states that if a person makes a claim for a social security payment and is qualified for the payment on the day on which the claim is made, their start day in relation to the payment is the day on which the claim is made. However, Clause 4 of Schedule 2 allows for an “early claim” in circumstances where a claim is made and the person is not qualified for the payment on the day the claim is made, but becomes qualified for the payment within 13 weeks of claim. In such circumstances, the claim is taken to have been made on the first day on which the person is qualified for the social security payment.

12. In written submissions provided to the Tribunal, the Respondent submitted that the relevant period for considering the Applicant’s qualification for disability support pension – given the effect of Clause 4 of Schedule 2 to the Social Security Administration Act – is 20 June 2022 to 19 September 2022, that is, at the time of the claim and within 13 weeks of the claim. The Respondent referred to Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 in support of this submission, in which the AAT had stated (at [34]) that:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks).  Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).  His point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused.  In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors.  If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

13. The Respondent further referred to Fanning and Secretary, Department of Social Services [2014] AATA 447, where the AAT cited Bobera with approval and commented (at [31]-[33]) that:

    In my view, in the case of DSP, it is implicit in Clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following.  Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

    This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.  Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.

    The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking.  With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added).  While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine.  The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter.  For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.

14. The Tribunal accepts that, based on the comments of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, cited above in Fanning, the Tribunal is required to consider the Applicant’s qualification within the period 20 June 2022 to 19 September 2022.

Evidence before the Tribunal

1. At the hearing, the Tribunal had been provided bundles of Centrelink documents (a main bundle of “T documents” and a supplementary set of documents).  The Tribunal had also been provided the result of a scan/X-ray by the Applicant that had been conducted in November 2024 and a Statement of Facts, Issues and Contentions prepared by the Respondent.  The Applicant confirmed he had received copies of all of the documents the Tribunal had been given.

2. The Applicant submitted to the Tribunal at the hearing that he has damage to his back which has worsened over the years, in addition to mental health conditions.  After his pension was cancelled he returned to work and was able to find a suitable job with an employer who knew about his back injury.  He was then in a car accident in 2018 which caused physical injuries, severe post traumatic stress disorder, depression and anxiety.  He has, more recently, developed arthritis in his hips and shoulders.  He believes he is qualified for disability support pension and has provided all his medical evidence to prove he is disabled.

3. The Respondent provided written submissions to the Tribunal. The Respondent’s position in this matter is that the Applicant had impairments during the qualification period that met the requirements in paragraph 94(1)(a) of the Social Security Act. The Respondent submits that the Applicant’s chronic pain was fully diagnosed during the qualification period, but was not fully treated and stabilised. The Respondent submits that the Applicant’s conditions of post traumatic stress disorder and anxiety were fully diagnosed, but were not fully treated and stabilised.

4. The Respondent further submits that the Applicant did not have a continuing inability to work on the basis that he did not have a severe impairment and had not actively participated in a program of support.  The Respondent submits that the Applicant was required to participate in a program of support in the period from 19 June 2019 to 19 June 2022 and that, in this period, he had no days of participation in a program of support, which is less than the 547 days required.  He was assessed in a job capacity assessment as having a work capacity of 8 to 14 hours per week, increasing to 15 to 22 hours per week within two years.  Based on this assessment, the Respondent submits that the Applicant’s impairments did not prevent him, within the following two years, from undertaking work for at least 15 hours per week or from undertaking a training activity that would enable him to undertake such work.

5. The Respondent’s oral submissions to the Tribunal at the hearing were consistent with the matters raised in the written Statement of Facts, Issues and Contentions.

The Applicant’s physical, intellectual or psychiatric impairments

1. The Tribunal accepted from the medical evidence before it that, at the time of claim, the Applicant was suffering from chronic pain, post-traumatic stress disorder and anxiety. The Tribunal finds that the Applicant had physical, intellectual or psychiatric impairments at the time of claim, in accordance with paragraph 94(1)(a) of the Act.

Impairment rating under the Impairment Tables

Chronic pain

1. The Tribunal accepted, by way of background, that the Applicant has previously received disability support pension, for a back condition and mental health condition.  Documentation dating back to 2003 was included in the bundle of documents provided to the Tribunal and the Tribunal accepted from these documents that the Applicant was considered unfit to work for a brief period in early 2003 due to lumbar back pain and that he then strained his back at work in January 2004.  As of 2004, the Applicant had commenced a WorkCover claim.  He was referred to a pain management program which he self-discharged from after attending a half day and he managed the back pain by physiotherapy, hydrotherapy, pain medication and massage.  As of 2015 when a review of his disability support pension was conducted, he was undertaking no active treatment for the back condition.

2. The Applicant was involved in a significant motor vehicle accident in October 2018 which resulted in contusions of both wrists, both shoulders, the back of his neck, front of his chest and both knees.  At the time he attended a job capacity assessment in March 2019 he reported to the assessor that he was attending physiotherapy weekly, was taking pain medication and that there were no further specialist referrals for the condition.  This was consistent with a report prepared by an occupational and environmental physician who the Applicant attended on 3 April 2019.  In a supplementary report prepared by the physician, the following was noted in respect of the chronic pain condition:

   Current ongoing treatment:

   [The Applicant] stated that his current treatment consists of physiotherapy, medication in the form of self-guided exercises provided from the therapist, Tramadol 50mg twice daily and Panadol 500mg.

   Current state:

   With respect to the cervical spine, [the Applicant] stated that he still has a constant dull ache that increases to pain localised to the base of the cervical spine.  He stated that the discomfort radiated to up into the head. He stated that the discomfort was aggravated by looking right, prolonged computer work and looking down.  [The Applicant] described stiffness in the morning on waking that improved with movement and warmth.  He described decreased range of motion in the cervical spine affecting all planes.  [The Applicant] denied any altered sensation or loss of strength in the upper or lower limbs.  [The Applicant] denied any lower tract symptoms such as relevant bladder or bowel changes, saddle anaesthesia, sexual dysfunction, or lower limb neurological changes.

   With respect to the right shoulder, [the Applicant] stated that he still has a constant dull ache that increases to pain localised in the top of the shoulder lateral aspect of the shoulder.  He stated that the discomfort radiated to into the upper arm into the neck.  He stated that the discomfort was aggravated by lying on the shoulder reaching behind pushing, pulling, reaching overhead and repeated movement.  He denied any concerns regarding range of motion in the shoulder.

   With respect to the right wrist, [the Applicant] stated that he still has a constant dull ache that increases to pain localised to the dorsum of the wrist.  He stated that the discomfort radiated to middle finger and index finger.  He stated that the discomfort was aggravated by vibration, forceful gripping and rotating the wrist, lifting, carrying, bending the wrist.  He denied any concerns regarding range of motion in the wrist.

   With respect to right upper limb sensation, he described ‘pins and needles’ sensation, affecting the median nerve distribution (thumb and first three fingers).

   With respect to the right knee, [the Applicant] stated that he still has intermittent pain localised to underneath the patella.  He denied any radiation of the pain.  He stated that the discomfort was aggravated by prolonged walking, climbing stairs, squatting and kneeling.  He denied any concerns regarding range of motion in the knee.  [The Applicant] denied any altered sensation or loss of strength in the knee.  Despite his ongoing limitations, [the Applicant] denied any difficulty with squatting kneeling though these activities do cause discomfort.

   With respect to his activities of daily living [the Applicant] reported the following:

   Self care: No reported impairment of ability to perform activities of self care.

   Household duties: Unable to perform some activities of household duties without assistance.  His children assist with these activities.

   Hobbies: Unable to perform some outdoor duties or recreational activities, including mowing, and hobbies of motorcycle riding, camping and fishing, and also difficulty shooting pistols and rifles.

1. At the time the above report was prepared, there was no further planned physical treatment for what was described as work related physical injuries.

2. The Applicant then underwent an examination in February 2020 with a consultant orthopaedic surgeon, for an independent medico-legal report prepared in March 2020.  In the report, the surgeon noted that the Applicant had ceased any physical rehabilitation in mid-2019, that he had had two further visits for physiotherapy and had been referred for pain management and was due to attend an appointment in March 2020.  The report noted that the Applicant was not receiving any specific treatment for his injuries at the time of consultation.  Functional impact of the injuries was described as including difficulties with personal care, mowing, cooking and hanging out washing.  The surgeon considered that the right shoulder condition was not stable due to likely benefit from treatment.  The surgeon was of the view that the Applicant would benefit from a local anaesthetic and steroid injection, a short course of physiotherapy and oversight in management of the right shoulder condition by an orthopaedic surgeon with special interest in upper limb conditions.  The surgeon anticipated that following treatment of the shoulder, the Applicant would be able to return to work on suitable duties and reduced hours or an alternative employment (but this would be dependent on his mental health recovery).

3. The Applicant attended an occupational therapy assessment in April 2020 and, in a report prepared in May 2020, the occupational therapist noted the Applicant was taking pain medication but was unable to recall the details of the medication as it had been recently changed.  He reported taking one Panadol Osteo twice a day.  The occupational therapist was of the view that the Applicant would benefit from attending a pain management program.

4. The Applicant commenced a claim for total and permanent disability in or around 2020.  He underwent assessment by another occupational therapist in September 2020 and, in the resulting report, the occupational therapist noted the Applicant presented with chronic pain in the cervical spine, right shoulder, right wrist and right knee and which could radiate into both shoulder girdles.  The occupational therapist reported the following about the condition:

   There is upper limb paraesthesia.  Headaches are sub-occipital, radiation to the front of the head.  They occur once or twice each week.  Aggravating factors for [the Applicant] include lifting activities or static postures of the head and neck.  Checking blind spots when driving can be problematic.  Overhead activities are pain provoking.

   [The Applicant] experiences ongoing right upper limb pain (of the wrist and shoulder).  He finds he is weaker.  There is pain in the posterolateral aspect of the shoulder (radiating into the interscapular region).  There is pain is in the dorsal aspect of the wrist.  It feels stiff and can swell.  The pain can radiate into the dorsal aspect of his fingers.  There is a loss of sensation in the palm.  Aggravating factors include forceful or repetitive use of the afflicted arm.  Unilateral or bilateral lifting activities are now restricted, particularly above chest height.  Overhead activities can be painful.  Rolling on to the shoulder in bed causes pain and sleep disturbance.  Opening jars is difficult.  Vibration is aggravating to his symptoms.

   The claimant’s knee pain is of an oscillating nature. There is intermittent swelling and clicking.  The knee feels stiff, and it can lock.  Aggravating factors include extended periods of standing, walking on stairs or uneven ground, squatting or kneeling and lifting activities.  So that he might modulate his pain, [the Applicant] will use medication, heat and rest.  He frequently rests in a recliner chair, supporting his neck and elevating his knee.

   ….

   The claimant is ambidextrous.  He writes with his left hand but is otherwise reliant on his right hand.  Cervical flexion and extension is restricted.  He describes pain with cervical rotation.  Static neck tolerances are compromised.  This adversely affects his capacity for computer activity or driving.  Flexion and abduction of the right shoulder is restricted at end range.  The right wrist has a reduced range of motion in flexion and extension.  Forward or overhead reach activities are limited by cervical spine and right upper limb dysfunction.

   Knee extension is normal.  Flexion is limited at end range.  He describes that he often limps with long periods of walking.  There are difficulties traversing stairs or uneven ground.  The claimant suffers increased knee pain with long periods of standing or walking.  He experiences stiffness when moving to stand (particularly after sitting for a period).  Where possible, he alternates postures between standing and sitting.  There are difficulties with crouching and kneeling.  Activities below waist height, above chest height or in front of the body are now problematic. 

5. The disability support pension claim was lodged on 20 June 2022 and, in the claim form, the Applicant indicated that he was taking painkillers for his physical health condition and that his doctor was providing this treatment to him.

6. In a Centrelink medical certificate prepared on 30 August 2022, the Applicant’s GP described the Applicant’s primary condition as an exacerbation of chronic neck pain following a motor vehicle accident, which was described as temporary and with symptoms expected to impact the Applicant’s capacity for work or study for 3-12 months.  Past treatment was stated to be analgesia, steroid injection and specialist review; current treatment was analgesia; and planned treatment was physiotherapy.   This information was repeated in a further Centrelink medical certificate prepared on 12 September 2022.

7. The Applicant attended a job capacity assessment on 15 August 2022.  The only comments by the Applicant reflected in the assessment in respect of this condition are that:

   [The Applicant] reported he consulted a spinal specialist in 2021 and early signs of arthritis has been identified in his left hip.

   [The Applicant] advised he self-manages his pain and is able to undertake household tasks, but with constant pain.

8. The Tribunal noted that the assessor largely used reports from 2020 to assess the functional impact caused by the condition and in concluding that the condition was causing moderate impact on functions involving physical exertion and stamina (Table 1 of the Impairment Tables).  

9. The Tribunal had been provided further medical certificates dated 3 January 2024, 14 February 2024 and 9 August 2024 about the chronic pain condition, all of which continued to reflect the condition as temporary and with current treatment analgesia and planned treatment physiotherapy.  The Applicant also provided results of a CT of the lower spine and X-ray of the left hip, pelvis and right knee conducted on 15 November 2024.  The Tribunal did not place weight on these documents as it considered they did not assist the Tribunal in determining whether the condition was fully diagnosed, treated and stabilised during 2022 or the level of functional impact caused by the condition as of 2022. 

10. The Applicant gave evidence at the hearing that his back condition has become worse throughout the years.  He noted that he had previously received disability support pension and that this had been cancelled when Centrelink considered he no longer met the qualification requirements.  The Applicant’s evidence about the more recent exacerbation of his back condition was consistent with the documentation before the Tribunal about the Applicant’s involvement in a significant car accident.  The Applicant told the Tribunal that since that time he has experienced nerve and tissue damage in his wrists, shoulder, between his shoulder blades, his right and left knees and his neck, in addition to symptoms of post-traumatic stress disorder, depression and anxiety.  The Applicant stated that more recently he has developed arthritis in his hips and shoulders and he believes he is eligible for the pension.  The pain condition impacts him daily, he is taking painkillers every day and is unable to work.

11. The Applicant gave evidence at the hearing that he had not attended a recommended pain management program in 2020 because he had attended one in 2006 and he has learned to deal with the pain over the last decade and doesn’t need to be told how to manage the pain.  In response to an observation made at hearing by the Respondent that a failure to attend the program suggests the condition cannot be regarded as permanent, the Applicant responded by stating that his doctor has not suggested a pain management program and then stated that he attended years ago.

12. The Applicant told the Tribunal that, as of June 2022 when the disability support pension claim was lodged, he was taking painkillers and was undertaking pain management, which included whatever his GP told him to do.  This included limiting his movement, sitting and standing for periods of time and walking around when he could.  He stated that he has been taking Lyrica, Celebrex, Endep and a range of different painkillers since 2006, that he changes medications at times and that his medication dosage is managed by his GP. 

13. The Applicant stated that, as of 2022, he would drop his coffee cup as his hand gave out, he had limited movement in his arms above head height, his knee would lock up when he walked on concrete, and he had difficulty bending down to pick up items due to stiffness in his back. He had difficulty picking things up and he would be in pain by lunchtime every day.  He was still driving as of 2022 and was using his mirrors for head checks.  He had trouble pushing a trolley around the supermarket.  He was able to walk perhaps 600 metres in a day.  He was living with his parents and his mother undertook house maintenance and cleaning.  He was experiencing dizziness because of the pain and believes he is a liability for an employee. 

14. The Tribunal accepted from the evidence before it that, following the Applicant’s involvement in a serious motor vehicle accident in October 2018, he experienced damage to his wrists, shoulders, knees, the back of his neck and the front of his chest.  He initially treated the pain through physiotherapy and pain medication; the physiotherapy ceased in or around 2019.

15. The Tribunal found that during 2020 the Applicant was recommended to undertake further treatment for his chronic pain.  This included participation in a pain management program, anaesthetic and steroid injection, and management by an orthopaedic surgeon.  There is no medical evidence confirming that any of these recommendations was pursued by the Applicant, although the Tribunal notes that he advised a job capacity assessor in August 2022 that he had seen a spinal specialist in 2021.  At the time of claim, the Applicant was managing the pain through medication only, prescribed by his GP.  The GP described, in August 2022, that future planned treatment included physiotherapy.

16. The Tribunal found that the Applicant had not undertaken a range of treatments that had been recommended to him in 2020.  He described at the hearing that he did not need to attend a pain management program as he had attended one in 2006.  The Tribunal had some difficulty accepting this, on the basis that the Applicant had not participated in the program in 2006 as he had self-discharged after half a day.  The Applicant, further, had not pursued steroid injections, management of the condition by an orthopaedic surgeon or further physiotherapy sessions. Given reasonable treatment had been recommended to the Applicant and these recommendations had not been followed by the Applicant, the Tribunal found that the condition had not been fully treated at the time of claim or within 13 weeks of claim.  Further, the Tribunal was not persuaded that the condition was fully stabilised on the basis that the Applicant had not undertaken a range of reasonable treatment recommended to him.

17. As the chronic pain condition was not fully diagnosed, treated and stabilised at the time of claim or within 13 weeks of claim, it is not considered to be permanent and cannot be allocated an impairment rating under the relevant Impairment Tables.

Mental health conditions

1. The Tribunal accepted that the Applicant was identified as having mental health concerns from at least 2004, when results of a pain management assessment indicated an extremely severe level of depressed mood, a severe level of anxiety and an extremely severe level of stress.  At that time, psychiatric review was recommended as appropriate, to assess the need for pharmacological treatment.  The Applicant then participated in a psychiatric medico-legal report in mid-2005, where a psychiatrist observed that he had become depressed secondary to being in chronic pain and that his presentation was consistent with a psychiatric diagnosis of adjustment disorder with depressed mood. 

2. As of March 2008, when the Applicant participated in a job capacity assessment, he reported to the assessor having engaged in cognitive behavioural therapy, trialling various medications for depression and having undergone a mental health care plan with his GP.  By 2013, when participating in a subsequent job capacity assessment, the Applicant reported having been off antidepressant medication for four years

3. A review of the applicant’s previous disability support pension was undertaken in March 2015.  The Applicant completed a review form in which mental illness was not mentioned by the Applicant as an illness, disability or injury he had at the time; an associated form completed by the Applicant’s GP also did not mention any mental health conditions.  The Tribunal noted that the Applicant attended a job capacity assessment in March 2015, at which he indicated he had been off medication for four years and felt that he was symptom free.

4. There is no medical evidence before the Tribunal about the Applicant’s mental health presentation between 2015 and late 2018.  After the motor vehicle accident in October 2018, in November 2018 the Applicant’s GP prepared a Centrelink medical certificate querying post-traumatic stress disorder as a diagnosis.  In December 2018, the Applicant’s GP responded to a WorkCover questionnaire and indicated that the Applicant’s diagnoses included anxiety and post-traumatic stress disorder.   These diagnoses were reiterated in a Centrelink medical certificate prepared by the GP on 29 January 2019.

5. The Applicant attended a psychologist during 2019, who prepared a report for WorkCover purposes dated 17 March 2019.  The psychologist considered that the Applicant’s symptoms and psychological test results were consistent with a diagnosis of adjustment disorder with mixed anxiety and depressed mood, and with post-traumatic stress disorder.

6. The Applicant then underwent psychiatric evaluation in April 2019 with a consultant psychiatrist who stated that the Applicant’s work-related injury was post traumatic stress disorder, secondary to the motor vehicle accident.  The residual pain was likely to be impacting his mood, resulting in an adjustment disorder with mixed anxiety and depression. He was undertaking regular sessions with his psychologist, including cognitive behavioural therapy, and medications he was taking included Diazepam.  The psychiatrist was of the view that the Applicant would benefit from further psychological sessions, including ongoing cognitive behavioural therapy and acceptance and commitment therapy, and that eye movement desensitisation and reprocessing would be an appropriate intervention.  The psychiatrist suggested that a further eight to 10 sessions would be beneficial.

7. The Applicant attended the same psychiatrist again in July 2019, at which time he had attended his psychologist for a further three sessions and had four further sessions booked.  The psychiatrist recommended completion of a further four sessions with the psychologist.  In a supplementary report prepared by the psychiatrist in August 2019, the psychiatrist stated that the Applicant would likely be stable after a further four sessions of psychological treatment.

8. The Applicant was involved in proceedings before an industrial relations tribunal during 2020 and, as of February 2020, stated he was prescribed Citalopram.  This was consistent with an independent medico-legal report prepared by a consultant orthopaedic surgeon in March 2020, in which the Applicant reported having been treated by a psychologist for a 12-month period up to 2019 and having been prescribed antidepressant medication by his GP for the previous four months.  It was also consistent with a report prepared by the Applicant’s GP in October 2020 about his commencement the previous year of Citalopram. 

9. Commensurate with the disability support pension claim, the Applicant’s GP prepared a Centrelink medical certificate, dated 23 May 2022, which stated his diagnoses of post traumatic stress disorder and anxiety were a “temporary exacerbation”, with symptoms of insomnia, flashbacks, fluctuation of mood, poor motivation and lethargy.  Past treatment was described as psychotherapy, current was antidepressants and planned treatment was psychotherapy. 

10. In his claim for disability support pension in June 2022, the Applicant stated that his current treatment was antidepressants.  He attended a job capacity assessment on 15 August 2022 soon after lodgement of the claim, in which the following was reported by the assessor:

    [The Applicant] reported he continues to experience panic attacks, insomnia, flashbacks of fatal car accident, "always sees the face of the other driver", always drained and tired and don't like being around people.

    [The Applicant] advised he experiences constant headaches for which he takes Nurofen.

    [The Applicant] stated he is in the process of changing his antidepressant medication and his GP has suggested trialling medicinal cannabis.
    
    
    Medical evidence suggested limited treatment over the last couple of years.

11. A Centrelink medical certificate prepared by the Applicant’s GP, dated 12 September 2022, stated in respect of the mental health conditions that current medication was antidepressants and planned treatment was psychotherapy. 

12. The Applicant gave evidence at the hearing that he had been attending his psychologist as of 2019, when the consultant psychiatrist recommended another four sessions, and that he had continued to attend the psychologist for a further year.  In respect of the psychiatrist’s recommendation for him to attend a range of therapies, he told the Tribunal that he had no money to pay for the therapy.

13. The Applicant gave evidence at the hearing that he was taking antidepressants from 2019 onwards, which was managed by his GP and psychologist.  He was not seeing a psychologist as of 2022; he thinks this stopped around 2020, as it didn’t seem to be progressing any more. He was taking Citalopram, which was a stable dose at the time but which has been increased during 2024.  The Applicant noted that his dose has gone up and down throughout the years and it was increased during 2024 as he started feeling anxious and depressed.  He stated he has not returned to counselling since 2020.

14. The Applicant described to the Tribunal that his mental health conditions impact his functioning as he avoids watching the news and has difficulty driving past accidents or hearing about accidents.  He doesn’t go out if he doesn’t need to, doesn’t socialise with a lot of people, has a limited friendship group and is anxious at shopping centres, which he avoids.  His condition makes him angry.

15. The Tribunal accepted from the psychiatrist consultation undertaken in 2019 that the Applicant had, following the motor vehicle accident, been diagnosed as suffering from post-traumatic stress disorder and with adjustment disorder with mixed anxiety and depression.  The Applicant attended counselling with a psychologist up to 2019 or early 2020 and, around the same time, commenced taking Citalopram.  Between that time and June 2022 when the disability support pension claim was lodged, the Applicant was taking medication prescribed by his GP but was not otherwise attending a psychologist or a psychiatrist.  The recommendations the psychiatrist had made in 2019 about participation in further therapies had not been pursued by the Applicant; his evidence at the hearing was that this was due to financial limitations.  Commensurate with the time of claim, the Applicant indicated that he was in the process of having his medication changed and his GP indicated that further psychotherapy was planned.

1. The difficulty for the Applicant in his application to this Tribunal is that, in the lead up to the claim, he was taking medication only, despite recommendations to pursue a range of therapies.  At the time of claim, and within 13 weeks of the claim being lodged, he was taking medication only and had not recommenced psychotherapy as indicated was planned by his GP.  He had not attended a psychiatrist for a review of his medication and his medication had been managed solely by his GP for a number of years.  The Tribunal finds that the range of therapies recommended by the psychiatrist, a medical review of the Applicant’s medication and recommencement of psychotherapy were all reasonable treatment options that had not been pursued by the Applicant.  Given this finding, the Tribunal concluded that the mental health conditions were not fully diagnosed, treated and stabilised at the time of claim or within 13 weeks of claim.  The Tribunal is therefore unable to consider the allocation of points under the relevant Impairment Table. 

Conclusion about medical conditions

1. The Tribunal has found that the Applicant’s conditions were not fully diagnosed, treated and stabilised at the time the disability support pension claim was lodged or within 13 weeks of claim and, because of this, no impairment rating is able to be allocated under the relevant Impairment Tables. 

2. The Applicant’s impairments did not attract a rating of 20 points or more and he therefore did not satisfy paragraph 94(1)(b) of the Act at the time of claim or within the relevant period after the claim was lodged.  He did not meet the qualification requirements in respect of the disability support pension claim lodged with Centrelink on 20 June 2022 and, for this reason, the Tribunal did not go on to consider whether the Applicant also has a continuing inability to work.  The decision to reject the Applicant’s claim for disability support pension is legally correct and is affirmed by the Tribunal. 

DECISION

The Tribunal affirms the decision under review.

Date of hearing:	8 July 2025
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Mr C Darben