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

Kaplan and Secretary, Department of Social Services (Social services second review) [2021] AATA 1553 (28 May 2021)
Division:GENERAL DIVISION
File Number(s): 2019/6792
Re:Rebecca Kaplan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:28 May 2021
Place:Adelaide

The decision under review is affirmed.
.....................[SGND].......................
Senior Member B J Illingworth
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether Applicant’s conditions attracted an impairment rating of at least 20 points – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Re Fanning & Secretary, Department of Social Services [2014] AATA 447.
Secretary, Department of Social Services & Austin [2015] AATA 441.
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011.
REASONS FOR DECISION
Senior Member B J Illingworth
28 May 2021
Introduction

This is an application to review a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1) on 16 September 2019 which affirmed a decision of an authorised review officer (ARO) to reject the Applicant’s claim to disability support pension (DSP) lodged on 9 March 2018.
Background
On 9 March 2018, the Applicant lodged a claim for DSP with the Department of Human Services (Centrelink). Her medical conditions included back pain, major depressive disorder, asthma, diabetes, right shoulder impairment, left wrist pain and liver condition.
On 24 July 2018, the Applicant’s claim for DSP was rejected on the basis that she did not attract the requisite impairment rating of 20 points on the Impairment Tables referred to in the Social Security (Tables for the Assessment of Work- related Impairment for Disability Support Pension 2011) Determination 2011 (the Determination). The Applicant sought internal review of that decision.
On 28 May 2019, an ARO affirmed the decision to reject the Applicant’s claim for DSP. The Applicant applied to the AAT for review of that decision.
On 16 September 2019, the AAT1 affirmed the decision under review and made the following findings with respect to the Applicant’s claimed conditions:
·spinal function – Table 4 – fully diagnosed, treated and stabilised (FDTS) - 5 points
·mental health condition – Table 5 – FDTS - 10 points.
As to the balance of her claimed conditions, the Applicant did not satisfy the AAT1 that she met the requirements for an impairment rating on the relevant Tables. Accordingly, the Applicant’s conditions attracted a total impairment rating of 15 impairment points and she did not meet the requirements of s 94 (1) (b) of the Social Security Act 1991 (the Act) and did not qualify for DSP.
On 22 October 2019, the Applicant sought review of the AAT1 decision which is the application for review now before the Tribunal. The Applicant was self-represented, and the Respondent was represented by Mr Chan of Sparke Helmore Lawyers.
Issues
For the Applicant to qualify for the DSP, he must satisfy the provisions of s 94 of the Act, namely that:
(a)she has a physical, intellectual or psychiatric impairment(s) for the purposes of subsection 94(1)(a) of the Act; and
(b)that her impairment(s) attracts a rating of 20 impairment points according to the Impairment Tables referred to in the Determination; and
(c)that she has a continuing inability to work; and
(d)that if she does not have a severe impairment which is defined as a score of 20 points under a single Table, the Applicant must have actively participated in a program of support as contained in the Determination.
Impairment ratings are to be assessed having regard to the Impairment Tables which are found in the Determination. Those Tables contain instructions for assessing impairments with respect to nominated conditions. The condition must be ‘permanent’, which means that the relevant condition must be FDTS[1] as at the date of the claim or up to 13 weeks thereafter (the Qualification Period).[2] The Qualification Period in this matter is 9 March 2018 to 8 June 2018.
[1] Clause 6(4) of the Determination.
[2] Schedule 2, Clause 4(1) of the Social Security (Administration) Act 1999.
In assessing whether a condition is fully diagnosed and fully treated, clause 6(5) of the Determination provides that the following must be considered:
(a)Whether there is corroborating evidence of the condition;
(b)What treatment or rehabilitation has occurred in relation to the condition; and
(c)Whether treatment is continuing or is planned in the next two years.
A condition is ‘fully stabilised’ if:[3]
(a)The person has undertaken reasonable treatment for that condition, and it is unlikely that further reasonable treatment will result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)If the person has not undertaken reasonable treatment for the condition:
(i)such treatment is not expected to result in a significant functional improvement to a level enabling the person to undertake work in the next two years; or
(ii)there is a medical or other compelling reason not to undertake reasonable treatment.
[3] Clause 6(6) of the Determination.
In assessing the functional impact of permanent conditions under an Impairment Table, the diagnosis of the condition must be made by an appropriately qualified medical practitioner, and there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.
The Applicant’s Evidence
The Applicant was born in in 1974 and is 47 years of age. She has two children, namely a daughter aged 26 years and a son aged 21 years, both of whom no longer live at home. She said her son is her carer. The Applicant was distressed throughout the giving of her evidence.
The Applicant has a housemate who has lived with her for about three months.
The Applicant’s back injury was the result of a workplace accident in March 2003, when a self-closing door shut on her and injured her back. She suffered a L4/L5 disc prolapse with compression of S1 nerve root. She had microdiscectomy/laminectomy surgery performed by Dr Osti in May 2003, when aged 28 years.
As a result of that injury she was on workers’ compensation for eight or nine years. She said that she was also in receipt of part-payment of DSP while she received workers’ compensation. During that period, she returned to work on a couple of occasions. The Applicant settled her workers’ compensation entitlements and after two years living off her settlement sum, she began receiving Centrelink payments.
Approximately six years ago, the Applicant again suffered injury to her back when she slipped on some rocks. She lost sensation in her legs and back, suffered back pain, her legs would give way and she had a loss of bladder control. She said she again suffered nerve impingement. She was unable to perform “most normal tasks” and her children had to do everything for her. As a result of that injury, the Applicant attended the pain clinic where she was prescribed medication and received two epidural injections to her spine which did not work. The Applicant referred to a letter from Dr Chan of 28 July 2016 confirming her attendance at the pain clinic.
The Applicant said that she first attended the pain clinic in about 2015. By the time she filed her application for DSP, she had finished her treatment at the pain clinic. At the time of the hearing she had not been to the pain clinic for about three years. The Applicant said that they provided no real treatment, that they advised her to lose weight and to come off all her medication and “deal with it” and “suck it up”. She was on a waiting list to see a neurosurgeon.
The Applicant said that she had since reduced her medication because of its impact upon her liver and she had reduced her weight by 38 kilograms in the last two years. She had not lost that weight by the time of the filing of her application for DSP and slowly came off medication over the last two years. She tried other medication, but she had an allergic reaction to some medication including loss of sight in one eye. She overdosed on Norspan patches which impacted on her liver. This, she said, happened in hospital after she had her gallbladder removed three years ago.
At the time of the application for DSP, the Applicant was only receiving treatment at the pain clinic. She said there was nowhere else where she could be seen, and she was on a waiting list to see a neurosurgeon. She said that in January 2019 she rang the pain clinic and said she had been waiting so long and enquired what was happening about a consultation with a neurosurgeon. As a result of that telephone conversation, they brought her appointment forward to April 2019. The Applicant said that, because of the system, it was hard to get appointments to see doctors, or obtain reports or referral letters.
At the time of her DSP application, she described her back as horrible; she was in constant pain every day and she was not able to do things at home. For weeks her back would give way on her, she could not put any weight on her feet and her feet would drop out on her. She could not sit for long periods of time. She would sit for 20 – 30 minutes before she needed to get up. She would sit on a lounge or dining room chair. The latter was better and easier to get up from than the dining room chair. Sometimes she could not get out of the lounge chair and her children would assist her. Her son would pull her up out of the chair. He would also help her get out of bed. Sometimes, in the morning, she could not feel her feet. She had pins and needles.
At that time, she was driving when required and could do so for 20 – 30 minutes. Her parents live in Goolwa and she has not visited them in 2 ½ years because of the travel distance. The hospital system would assist in providing transport. She struggled to drive to get to the Tribunal for the hearing.
She could not clean the house. It was a mess. She had a light vacuum cleaner and she would vacuum because she had to. Mopping “is the killer” and sometimes she did not do it. She had limited help from her children. She could not hang out the washing because of her wrist and shoulder. She has not hung out the washing for over a decade. Bending into the washing machine was hard. It was a front loader washing machine and she had to do small loads. It was her right shoulder and left wrist, not her back, that caused her difficulty washing.
The Applicant could manoeuvre small things in and out of cupboards or the pantry but not reach to items that were kept up high. She said she can move her right and left arm and hand, but it is repetitive movements that causes the grinding and discomfort. Carrying her bag to the Tribunal for the hearing caused discomfort to her wrist but she did it because she had to.
Neck movement was not a problem. Sometimes she could bend to pick up items off the floor, but other times people would pick things up for her. She could bend to pick up an item that was at coffee table height but with pain and discomfort. She had no issue picking things up off a normal table if they were not heavy.
The Applicant said at the time of her application her back pain affected all aspects of her daily living including her ability to shower, look after herself, wash the dog, do the gardening, cleaning or exercising.
The Tribunal asked the Applicant what treatment she had received for her back since March 2018. She said she has not had a lot of treatment because nothing will make her back better. She cannot have any more steroid epidural injections. She said they were degenerating her spine and making it worse according to Dr Chan. She has seen Dr Chan six times at the pain clinic. The Tribunal asked again what treatment she had received for her back since March 2018. She said just consultations with the neurosurgeon and the emergency department at Flinders Hospital or Noarlunga Hospital when she has trouble with her back or legs. In the majority of occasions, she would travel to hospital by ambulance. She has driven herself on a couple of occasions.
The Applicant then referred to a Flinders Medical Centre letter which said her last MRI was in May 2018, so she must have presented on that occasion to that hospital.
Mental Health
The Applicant said that she first had trouble with mental health issues when she was about 17 years of age. She had been involved in a home invasion by people who were known to her. She was threatened. She bottled up her mental health concerns until she first saw Dr Blackmore in about 2004.
The Applicant then saw a psychologist at PsychMed for a number of years through a mental health care plan in about 2016 or 2017. The Applicant also saw psychiatrist Dr Pols who provided a report dated 28 July 2016[4]. Dr Pols diagnosed major depressive disorder supervening on top of chronic dysthymia and grief for her grandmother’s passing 12 months earlier. Dr Pols recommended graded exercise and a swimming program with the need for significant weight loss. Dr Pols also recommended a general practitioner mental health care plan with 10 sessions of clinical psychology as well as a general practitioner shared care plan with acupuncture. She needed “pain education and in due course Mindfulness Meditation may also be helpful.”
[4] Exhibit C.
The Applicant said that she was swimming and doing hydrotherapy at a pool, but she became unwell with influenza A and every year for the last six years she has been sick due to influenza or human metapneumovirus, which was a respiratory condition. She said that she stopped swimming in November 2017 when Flinders Medical Centre closed the swimming pool for renovations. She has not returned to swimming because her asthma has been bad, and the chlorine affects her asthma.
As for the recommendation of a clinical psychologist and a general practitioner shared care plan, the Applicant said that was the reason she went to Psych Med. The Applicant said that she could not recall the person she saw there. The person has since left the practice. She was a psychologist, not a clinical psychologist. The Applicant said that she went to four sessions but thought she was not improving; she was not seeing the same person on each occasion and the appointments were few and far between. She said she did not cease that treatment, but she told PsychMed it was not helping. That treatment concluded in 2016.
The Applicant said before 2018 her then doctor, Dr Sanchez referred the Applicant to a psychiatrist Dr Hibbert, but she did not make an appointment. Dr Sanchez has since refused to see that Applicant because she missed two appointments. In answer to further questions from the Tribunal, the Applicant said this occurred before her referral to Dr Pols in 2006. It appears from further evidence that the Applicant may have been mistaken about the date this occurred.
The Applicant said she saw a psychologist as part of her treatment with Flinders Medical Centre. It was some time ago.
Left Wrist
The Applicant said her problem was with the dorsal compartments. She had pain in her wrist, and she was unable to lift or carry anything. She can lift items such as her laptop, but with pain. Doing dishes and repetitive motions like holding vegetables when cutting or peeling (the Applicant is right-handed) are painful.
The Applicant said that she had surgery on her left wrist at Flinders Medical Centre on 20 December 2017 to release the dorsal compartment with some improvement. The condition improved but “it still niggles”. This will occur three or four days a week. It will not prevent her using the wrist, but she will have pain. She has pain most days, but it is not significant.
Right Shoulder
The Applicant said she has had cortisone injections in the shoulder, the last being about six months to a year ago. She said the diagnosis was bursitis and frozen shoulder. She has had this condition for over a decade, and they will not be giving her another cortisone injection in the future. When a flareup occurs, she cannot move her shoulder and it will be painful if she leans on it when sleeping. The pain is constantly there but the Applicant will push on through. Deep heat helps.
The Applicant sees Dr Richard Telfer for this condition.
Asthma
The Applicant said she has suffered from asthma for many years. As at the time of the application for DSP, the Applicant said she would get a lot of infections which would increase her asthmatic reaction, requiring hospitalisation. After the Applicant had surgery on her wrist, she contracted a respiratory infection from the surgery, namely human metapneumovirus, and she went to hospital on 26 December 2017 until 8 January 2018.
When not suffering from an infection, the Tribunal asked the Applicant to explain how the asthma impacted upon her as at the date of the DSP. The Applicant had difficulty referencing her condition to the Qualification Period. She said it caused lethargy and she was taking medication, namely three puffers a day as prescribed by the Flinders Medical Centre, when she was admitted after her influenza A and human metapneumovirus, but this was well before the date of the application for DSP. She then said that every year save for 2020 she has been sick.
The Applicant said she had an asthma attack walking from her parked car to the Tribunal. She suffered shortness of breath and was wheezing. She referred to numerous chemicals including fuel, chlorine and washing powder which give rise to spontaneous attacks. The Applicant has always used a puffer.
Insofar as the asthma impacted upon her, she said she had shortness of breath, was constantly perspiring, had a lack of energy, was coughing all the time and was not able to get her lungs back. She then said the last year has been the worst, and that she had been sick since April 2020.
Diabetes
The Applicant had been in hospital two days prior to the hearing date for this condition. She was diagnosed six years ago. She is treated for this condition at Flinders Medical Centre. At the time of her application for DSP, she said her diabetes was not under control. She could not control her blood sugars but since losing weight it has been a lot better. However, she now has an issue with low blood sugar. She does not maintain her blood sugar level because of her eating problems caused by her stomach and liver conditions.
Her diabetes is still being treated to get her to a stable blood sugar level which the Applicant said will require ongoing treatment. The Applicant said that she had been in the emergency division of Flinders Medical Centre twice in the week preceding the hearing. She had to stop her insulin injections for two days prior to the hearing and, on the date of the hearing, was to return to insulin injections which she self-administers and has done so for the last six years.
Liver
The Applicant was not sure when her liver condition was diagnosed. It was either January 2018 or 2017. She then said she believed it was 2017 but it was not treated and stable. She then said it was treated and stable, in a way, because she had an allergic reaction to the medication she was trialling in 2017. It was the only medication she was able to receive.
She said nothing further happened with her treatment. However, in answer to the Tribunal, she agreed she had a biopsy in May 2018, and in August 2018 she had a procedure for a bile blockage which related to her liver condition. The procedure included the implant of a stent. The procedure was an endoscopic retrograde cholangiopancreatography. Since then her liver enzymes were high and she has stomach issues, including cramping daily. She also had a skin reaction which was related to her liver condition.
National Disability Insurance Scheme (NDIS)

The Applicant was approved for an NDIS plan on 23 December 2020. Her approved condition was her mental health. All the evidence provided to the Tribunal was also provided to the National Disability Insurance Agency. Her supports are now directed to her mental health, stomach, liver, eating and finding alternate living accommodation.
Cross-examination
In cross-examination, the Applicant said that she last worked approximately four years ago in the hospitality industry at events selling merchandise. She could not perform bar work because of the impact that had on her wrist, which also prevented her from working as a qualified cook. Her back also prevented her from working as a cook.
She cooks at home rarely because of her back and wrist pain but also because she cannot digest food because of her stomach condition which was also related to her liver.
Before the Applicant saw clinical psychologist Mr Upsdell, she saw another psychologist at PsychMed but she could not recall the name. The Applicant was unable to get her consultation notes from PsychMed.
The Applicant said she also saw Dr Bandara before she saw Dr Sanchez and Dr Meyer. Dr Bandara worked at the same clinic. That was for her general health. The Applicant referred to difficulties she experienced when treated by Dr Sanchez.
The Applicant saw Dr Pols once. Albeit the report of Dr Pols referred to reviewing her again in six weeks’ time, that did not occur, and the Applicant said she saw another psychologist. The Applicant was then unsure who that person was or whether that practitioner was a psychologist or psychiatrist. She could not recall whether that practitioner was male or female.
In respect of “graded physical therapy” referred to in the medical notes, the Applicant did not know what that treatment was. She did say she undertook some physiotherapy but became sick again and repeated her earlier evidence that she could not go to the swimming pool and exercise because she contracted influenza, then the swimming pool shut down and she could not exercise because of the asthma. The Applicant said acupuncture helped but she stopped that treatment because of her respiratory condition.
In respect of her asthma, the notes refer to the Applicant being booked into a respiratory outpatient clinic at Flinders Medical Centre in March 2018[5]. The Applicant said he had not been to the clinic yet. Her asthma condition has worsened. She said her doctors had not been able to determine why. She said pollution, being in her car and the car exhaust causes asthma attacks. She has been housebound for six months because of her asthma condition.
[5] T43, page 267.
The Applicant was asked about the surgery on her wrist which she said was a dorsal compartment release to permit release of the muscle which was impinged. The surgery occurred in December 2017 and again she described her wrist pain as “still niggling”. She could not perform repetitive movements in 2017. The surgery helped but she still has difficulties with activities such as peeling potatoes and gripping items.
The Applicant had a post-surgery review. She had slow healing of the muscles due to her diabetes. She does not have a current review date but will arrange a medical appointment if it niggles again. Her last review was 2019. Her condition “plays up here and there”, particularly in the cold months. It also affects her wrists when driving.
Dr Jonathan Meyer
Dr Meyer provided a report dated 10 August 2020[6] and gave evidence by telephone. In his report he said the Applicant had been a patient at his medical practice since 2006 to date. He has been treating the Applicant since July 2018. Prior to that, she had been seeing a colleague, Dr Sanchez. She was also consulting Dr Telfer at a different clinic.
[6] Exhibit M.
The Applicant is on an annual mental health care plan and is seeing a psychologist. That was done at the other clinic. The only time Dr Meyer’s clinic created a mental health care plan was in May 2018 by Dr Sanchez. Since then, she has spent more time at the other clinic under the care of Dr Telfer.
The report said that the Applicant last saw a psychiatrist in August 2016. Dr Meyer was not aware of any subsequent referral to a psychiatrist, albeit that may have occurred at the other clinic. Dr Sanchez referred her to a clinical psychologist in May 2018 at Fleurieu Psychology and she was also referred to, and booked for, assessment by a psychiatrist at that same time. The purpose of the referral was for general psychological treatment, including cognitive behavioural therapy and supportive psychology for the depression.
Dr Meyer received something in September 2018 from clinical psychologist, Mr Upsdell of Fleurieu Psychology saying he had met the Applicant and was addressing the issues raised in the mental health care plan. Since then, the Applicant stopped seeing Dr Sanchez and has been dealing with Dr Telfer. The expectation in referring the Applicant for this treatment was the improvement in her mental health.
Dr Meyer in his report opined that the Applicant met the criteria of severe functional impact in respect of the Table 5 – mental health function – entitling her to an assessment of 20 points, moderate functional impact in respect of Table 4 – spinal function – entitling her to an assessment of 10 points, mild functional impact in respect of Table 1 – asthma – entitling her to an assessment of 5 points, mild functional impact in respect of Table 2 – upper limb function (right shoulder) – entitling her to an assessment of 5 points. However, importantly, Dr Meyer said the opinions he expressed were as at the date of his report. Because he did not see the Applicant before July 2018, he was not, even by reference to the practice notes, able to express an opinion at the time of the application for DSP or during the Qualification Period.
In cross-examination, Dr Meyer confirmed that in 2018 he saw the Applicant six times, including his first consultation on 7 July 2018. The consultations were mainly for pain management and were predominantly for her back. He prescribed OxyNorm and targin tablets for her back pain and diazepam for muscle relaxation and anxiety.
Dr Meyer was not aware of the Applicant engaging in graded exercise in 2018. At that time, she was seeing Dr Telfer more and he was dealing with her health care plan. Dr Meyer also said that, in respect of the general population, back pain can exacerbate a person’s mental health and, as an extrapolation, it may have had an effect on her, but he could not say for sure in respect of the Applicant. Generally speaking, it often does have that effect.
Dr Meyer agreed that since 2018 the Applicant had been weaned off much of her pain medication and, at the moment, she was just taking OxyNorm. She was seeing Dr Telfer when it was decreased.
Closing submissions
The Respondent submitted that the Applicant does not qualify for 20 points and, in particular, with respect to any one condition.
As for the mental health condition, it was not fully treated and stabilised. Dr Meyer first saw the Applicant after the Qualification Period and the further psychological treatment as at May 2018, when the mental health care plan was drafted, was expected to help the Applicant. Hence it supports the Respondent’s submission that the mental health condition was still being treated after the Qualification Period. It is also relevant that on the last page of Dr Pols report dated 28 July 2016, he said that the Applicant’s depression had thus far been inadequately treated. She was only receiving 20milligrams of Cipramil which was increased to 40 milligrams. It was noteworthy that 15 years later she was still taking 20 milligrams of Cipramil.
Therefore, no impairment points can be assigned to her mental health condition.
As to the back condition, the Respondent submits further treatment was still ongoing. Dr Chan referred to the weaning off the medication and to try other therapies such as hydro or physical therapy, graded exercise or mindfulness meditation. Albeit the Applicant may have done some, if not all, of those other therapies she did not undertake the weaning off of medication and weight reduction until after the Qualification Period. Hence, the back condition cannot be assigned any impairment points.
As to the other conditions, the Respondent relied on the Statement of Facts, Issues and Contentions. Psychiatrist Dr Pols and pain management physician Dr Chan, both of whom worked at the pain management clinic at Flinders Medical Centre, support the argument that there is an interrelationship between the physical and psychological conditions and the need to get the pain under control, whereafter one would expect the mental health to improve. Given that at the time of her application for DSP or during the Qualification Period the physical condition was not FDTS, neither was her mental health condition.
The Respondent emphasised the absence of any legal barrier to the Applicant reapplying for DSP and the resetting of the Qualification Period. There was evidence of two experts that supports her application should she reapply today. The report of Dr Meyer supports the Applicant’s current entitlement for DSP.
The Applicant referred to the stress of going through the pain clinic and the delay she experienced in getting treatment on her back. She was critical of the treatment she received. She was critical of the system and the stress she suffered pursing her claim for DSP. She said she had slipped through the system. She had previously applied three times for DSP, but she said she was waiting on everyone and that she did everything that was asked of her and complied with her appointments.
Consideration
The Applicant was an honest witness who endeavoured to do her best to assist the Tribunal. She has previously applied for DSP on three occasions without success and encountered difficulties because, amongst other things, she did not have the relevant evidence to support her application. That was also an issue for her in this application. She referred, for example, to her inability to obtain her files from Flinders Medical Centre and PsychMed. It would appear that she may have engaged with other mental health practitioners but could not remember who they were and when that occurred. It is noteworthy that in 2004 Dr Blackmore diagnosed the Applicant’s mental health condition which continues, but there was an absence of evidence that directed her mental health condition to the claim date or Qualification Period.
The Tribunal is satisfied that the evidence the Applicant was unable to obtain, would not have assisted the Tribunal. It was in the nature of historical evidence and not directly relevant to the date of her DSP application or the Qualification Period. The Applicant clearly understood the Tribunal was obliged to consider whether her numerous medical conditions were FDTS at the time of filing a claim for DSP on 18 March 2018 or during the Qualification Period. The Tribunal will now detail that evidence.
Mental Health Condition
Psychiatrist Dr Blakemore said in his report dated 3 March 2004[7], that he saw the Applicant when she was then 29 years of age. He also received a large volume of medical reports from numerous practitioners dating back to 2001. The Applicant’s medical conditions included her back injury, difficulty dealing with pain and issues with WorkCover proceedings. She had undergone a discectomy by Dr Osti by the time of the consultation and was tense during the interview and demonstrated physical discomfort as the interview proceeded. Dr Blakemore found the Applicant to be very genuine and her depression was added to, by the separation from her partner and father of her two children. Nonetheless, the major cause of her depression and suicidal ideations appeared to be her ongoing back pain and resultant incapacities.
[7] Exhibit G.
Dr Blakemore diagnosed the Applicant to be suffering from an adjustment disorder with depressed mood.
Psychiatrist Dr Pols reviewed the Applicant on 28 July 2016, 12 years after she saw Dr Blakemore[8]. There is an absence of evidence with respect to the treatment of the Applicant’s mental health condition in those intervening years. Dr Pols reviewed the Applicant at the Pain Management Unit, Flinders Medical Centre. In his report, he detailed various medical conditions, an acrimonious breakup of her long-term relationship which involved the abduction of her two children, in respect of whom she now has custody and is the primary caregiver, together with her family and personal history. He diagnosed the Applicant as suffering from major depressive disorder, supervening on top of chronic dysthemia and grief for her grandmother who passed away 12 months earlier.
[8] Exhibit C.
Dr Pols reported:
Pervasive depression disorder describes Rebecca best and she has had a
supervening major depressive disorder on top of this. She has amotivation anhedonia and significant sleep disorder.
Her depression thus far is inadequately treated as she is only on 20mg of Cipramil
and I have increased this to 40 mg per day and we will review this in 6 weeks.
Her pervasive depression however is related to her self-talk to a large degree and
there was a time where she was optimistic and “a winner”. She clearly needs to
recapture this view of herself and it would seem to be that graded exercise, together with a swimming program may well be very useful for her. It seems to me that this has to be accompanied with significant weight loss if she is to regain her capacity to go back to work.
It would seem to me that she requires a General Practitioner Mental Health Care
Plan, together with 10 sessions of clinical psychology … She needs pain education
and in due course Mindfulness Meditation may also be very helpful for her.
I will review her in 6 weeks.
There is no evidence about a further review, whether or not it occurred and the outcome.
Dr Chan was a senior consultant at the Pain Management Unit, Flinders Medical Centre. The Tribunal received an Interdisciplinary Team Assessment dated 19 August 2016[9]. The psychiatric assessment reports, amongst other things, major depressive disorder superimposed on chronic dysthemia, depressed personality traits, and refers to a home invasion and broken relationship. She presented as depressed with some passive suicidal behaviours and urges to self-harm. The management plan included a mental health care plan, shared care plan, and access to a clinical psychologist. A follow-up appointment with Dr Chan was arranged and she was also to undergo CT guided facet joint injections and physical therapy. Her treating general practitioner, Dr Bandara, was to arrange a mental health care plan and shared care plan and a referral to a psychologist. She was also to be referred to the mindfulness and pain program through the Repatriation General Hospital.
[9] T25, pages 215-216.
Dr Chan provided a letter to Dr Bandara dated 21 July 2017. He said the Applicant’s predominant complaint was low back pain as well as bilateral hips. Her CT scan showed, amongst other things, stable changes to the lumbar spine. The Applicant had been taking a range of medications for her chronic pain. Dr Chan encouraged the Applicant to continue with graded physical therapy rather than rely on medications. He emphasised the importance of seeing a psychologist. The Applicant asked to be reviewed again by a psychiatrist which was to be organised.
It is not clear from the evidence before the Tribunal what, if any, of the recommended mental health treatment was progressed in 2016 and 2017.
The Applicant’s treating medical practitioner, Dr Meyer, gave evidence. Dr Bandara from his medical practice commenced treating the Applicant from 10 August 2006. Dr Sanchez was then involved in her treatment and Dr Meyer was first consulted by the Applicant in July 2018, shortly after the Qualification Period.
In Meyer’s report of 10 August 2020, under heading ‘Mental Health’ he reported that the Applicant had a mental health care plan and was currently seeing a psychologist. Importantly, he reported that she last saw a psychologist in August 2016, approximately 17 months before her application for DSP.
In the Employment Services Assessment report dated 25 January 2019, the author reported that the Applicant started treatment with psychologist Mr Upsdell in August 2018 after the end of the Qualification Period.
The Tribunal received a report from Mr Upsdell, Clinical and Organisational Psychologist, dated 11 October 2018[10]. He reported that Dr Sanchez referred the Applicant to him on 7 May 2018 for assessment and management of her depression. He saw her on two occasions, the last being 11 October 2018. He reported that she had previously consulted another psychologist in 2017 for three months. Mr Upsdell confirmed the previous diagnosis of major depressive disorder, which was recurrent, and opined that there was a significant impact on her ability to gain and maintain employment, and that she was unlikely to be employed for more than eight hours a week in the foreseeable future (at least two years).
[10] T69, pages 384 – 385.
In a brief one paragraph report dated 14 May 2019[11], Dr Upsdell reported the Applicant’s distress about the DSP process and confirmed some incremental gains in terms of activity and that her condition could be regarded as fully treated and further gains were likely to be small.
[11] T 73, page 396.
The Tribunal received a further report from Mr Upsdell dated 7 August 2020. He reported a long history of psychological and psychiatric treatment outlined in his previous letter of 11 October 2018 which was outside of the Qualification Period.
Mr Upsdell opined that under Impairment Table 5 the Applicant qualified for severe functional impairment entitling her to an assessment of 20 points. However, that is a report more than two years after the Qualification Period and is not directed to that point in time.
Importantly, Dr Meyer said that the only time his clinic created a mental health care plan for the Applicant was in May 2018 by her former treating practitioner Dr Sanchez. Dr Meyer reported that she was referred to a clinical psychologist in May 2018 midway through the Qualification Period and was booked for assessment by a psychiatrist at the same time. Dr Meyer said that her mental health condition thereafter was dealt with by Dr Telfer at a different clinic. In September 2018, he received a communication from Mr Upsdell that he had met the Applicant and was addressing the issues in the mental health care plan, which the Tribunal infers was that plan created by Dr Sanchez. Dr Meyer does not report on any assessment by a psychiatrist.
Hence, it is clear that the Applicant was being treated by, at the very least, a clinical psychologist upon referral from Dr Myers’ clinic after the Qualification Period. In respect of that treatment, Dr Meyer said the purpose of the referral was for general psychological treatment, including cognitive behavioural therapy and supportive psychology for depression with the expectation of improvement in the Applicant’s mental health.
The Tribunal received a report from Dr Telfer dated 15 May 2019[12]. He referred to a number of other conditions impacting upon the Applicant. As for her depression, he referred to a letter from Dr Upsdell that she had not shown considerable improvement and that, due to her mental illness, her diabetes control has declined.
[12] T 74, page 396.
The Tribunal also received a report from Dr Telfer dated 7 August 2020[13]. He had known the Applicant since June 2016 when he saw her at a different clinic. However, he does not report on the treatment previously given, nor the period over which he was consulted. Dr Telfer reports that the Applicant had been attending his current clinic since 9 November 2018, five months after the Qualification Period and, to the extent he provides an opinion in relation to the Applicant, it is not referable to the Qualification Period, which was over two years earlier. He does report the Applicant has poor concentration and focus, and completes tasks with significant difficulty, such as booking and keeping medical appointments and scheduling her time. She also has significant difficulties with indecisiveness which leads to more emotional distress.
[13] Exhibit N.

Hence, the Tribunal is satisfied that, during the Qualification Period, the Applicant was referred by Dr Sanchez to a clinical psychologist and psychiatrist with respect to a mental health care plan. Dr Sanchez thereafter ceased treating the Applicant and her treatment was taken over by Dr Meyer. The purpose of the referral by Dr Sanchez was an expectation that there would be an improvement in the Applicant’s mental health. The report of clinical psychologist Mr Upsdell dated 14 May 2019 suggests that the Applicant saw Mr Upsdell twice and for the last time in October 2018. There may have been other occasions not referred to in Dr Upsdell’s reports. Dr Telfer in his report dated 7 August 2020 said “She is engaging with a psychologist to hopefully improve her mental state. Her mental state has unfortunately been reluctant to improve despite working with psychologist for over 3 years.”
It is not clear to whom Dr Telfer is referring in respect of the Applicant’s work with a psychologist for over three years, but it is clear that at the time Dr Telfer was managing her condition and engaging with Ms Upsdell they expressed the hope of improving her mental health condition.
The Tribunal is satisfied that the Applicant’s condition was fully diagnosed at the time of her Qualification Period. It is clear that, at the time of the Qualification Period and following, the condition was not fully treated and stabilised and that her referral to Mr Upsdell was in anticipation of improvement in her mental health condition. She was also referred to a psychiatrist which, on the basis of the evidence before the Tribunal, was not pursued and that too, may have also contributed to the improvement of her mental health condition.
The Respondent referred the Tribunal to the decision of Re Fanning & Secretary, Department of Social Services[14] (Fanning) as authority for the proposition that medical evidence that comes into being after the qualification period is only relevant where it refers to an applicant’s condition during the qualification period. The Tribunal agrees with that submission.
[14] [2014] AATA 447.
In respect of assessing whether a condition is ‘fully stablised’ during the qualification period, Deputy President Handley in Fanning[15] said;
…in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with [sic] 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.
The language in cl 6(5) and (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 2 years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within 2 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.
[15] Ibid at [33].
Deputy President Bean in Secretary, Department of Social Services & Austin[16] emphasised that later evidence can be taken into account to give a fuller picture of an applicant’s medical conditions as they existed during a qualification period and in assessing what was the likely efficacy of treatment not yet undertaken during a qualification period:
However, … I am not persuaded that the Tribunal may not have regard to what subsequently transpired in determining what was likely to occur at an earlier point in time. I understand the position to be that, in making findings as to the state of affairs at an earlier point in time, and what could be considered likely to eventuate at that time, the Tribunal may have regard to evidence which comes into existence later. In my view, it is consistent with that proposition for the Tribunal to have regard to what actually happened in determining what was likely at an earlier date, namely during the assessment period.
[16] [2015] AATA 441 [24].
The Tribunal is satisfied that as at, and after, the Qualification Period the Applicant was still receiving psychological treatment for her mental health condition which was reasonably expected and likely to improve her mental health. That treatment included consultations with Mr Upsdell. The reports that came into being after the end of the Qualification Period clearly indicate that was the expectation and that some improvement did occur.
Hence, the mental health condition was not fully treated and stabilised at the time of the application for DSP or during the Qualification Period and accordingly no Table 5 impairment rating can be attributed to this condition.
Back Condition
The Applicant has been managed by various medical practitioners for her back condition for a number of years. The Tribunal accepts that her back condition was a consequence of a work-related injury in March 2003 and was exacerbated when she slipped on some rocks in or around 2014. Dr Meyer, in his report dated 10 August 2020, under heading ‘Spinal Function’ said that the Applicant’s lumbar spine degeneration was first diagnosed in 2001 and she had a microdiscectomy in 2003 performed by Mr Osti. Dr Chan said, “Since surgery it has been managed through analgesia, corticosteroid facet joint injections and epidurals”.
Dr Chan in his letter dated 21 July 2017 to treating practitioner Dr Bandara, referred to the various analgesics that had been taken by the Applicant, that he had discussed with her the lack of benefit from the majority of those medications for chronic persistent pain, and encouraged her to continue with graded physical therapy rather than rely medications. He emphasised the importance of seeing a psychologist to improve her self-management skills. She was also referred for a CT guided right L5/S1 transforaminal epidural steroid injection.
The Respondent submitted at paragraph 40 of the Statement of Facts, Issues and Contentions that Dr Chan’s recommendations in 2017 were consistent with Dr Pols recommendations in 2016. Dr Pols said:
….it would seem to be that graded exercise, together with swimming program may will be very useful for her. It seems to me that this has to be accompanied with significant weight loss if she is to regain her capacity go back to work.
Dr Chan in his Interdisciplinary Team Assessment dated 19 August 2016 under heading ‘Summary’ said:
Rebecca is a 41 year old woman from home with her daughters who was referred to the pain management unit for assistance with managing her lower back pain. She has a 10 year history of lower back pain following work place injury. She has a number of psychosocial stressors that impact on her chronic pain, including depressed mood, passive suicidal ideation and urges to self harm and feels a sense of injustice with regard to her situation.
Under heading ‘Recommendations to referring doctor’ he said:
1.    Rebecca will be booked in for follow up appointment with Dr Jonathan Chan for follow up post CT guided facet joint injections and to discuss commencement of physical therapy. In particular, she may benefit from a swimming programmer hydrotherapy, which she could access through a local swimming pool, or through the Repatriation General Hospital.
2.    Rebecca has a follow up appointment booked with pain management psychiatrist Dr Rene Pols in September.
3.    Dr Bandara, GP, to please organise mental health care plan and shared care plan, and refer Rebecca to a community clinical psychologist. It is thought that Rebecca would benefit from a cognitive behavioural therapy/ acceptance and commitment therapy approach.
4.    Rebecca will be referred to the Mindfulness and Pain programme through the Repatriation General Hospital.
5.    Rebecca will be booked in for early follow up in pain management RMO clinic to provide feedback from the MDT assessment and early actioning of the pain management team plans.
The Applicant gave evidence that she has lost a significant amount of weight due to ongoing stomach and liver conditions which impacted upon her inability to eat. That was post the Qualification Period. She did start hydrotherapy and swimming but that ceased and has not been continued. She contracted influenza which impacted upon other medical conditions, the swimming pool at Flinders Medical Centre closed for upgrade and there is no evidence that she has renewed those recommended treatments to improve her overall wellbeing during the Qualification Period.
Dr Meyer was not aware of the Applicant engaging in exercise in 2018. Dr Telfer in his report dated 7 August 2020 said the Applicant was not participating in recreational activities and lacked motivation. Dr Meyer also in evidence said that in respect of the general population, back pain can exacerbate a person’s mental health and, as an extrapolation, would have an effect upon the Applicant, albeit he could not be sure. Dr Meyer also said that since 2018, the Applicant had weaned off much of her pain medication during the time she was seeing Dr Telfer, which was post the Qualification Period.
The Tribunal is not satisfied that the Applicant undertook reasonable treatment prior to the Qualification Period to address her back condition. The Tribunal is not satisfied that she appropriately undertook those recommendations made by Dr Chan. Albeit she may have started some recommendations such as swimming and hydrotherapy, she had various reasons for not continuing with treatments, such as she regularly contracted influenza, and the closure of the Flinders Medical Centre swimming pool for renovations. She made no alternative arrangement to continue treatment elsewhere or to return to Flinders Medical Centre when the renovations were complete.
Accordingly, the Tribunal is satisfied that the Applicant’s back condition was fully diagnosed, but that it was not fully treated and stabilised as at the Qualification Period and therefore she is not entitled to a Table 4 impairment rating.
Shoulder Condition
The medical evidence of Dr Telfer and Dr Meyer both confirmed the Applicant was diagnosed with a subacromial bursitis to her right shoulder. She has had ultrasound and cortisone injections, but the evidence lacks detail about what other treatment she has undertaken.
The Applicant said that her last cortisone injection was approximately six months ago, but she will no longer receive cortisone injections. She describes the pain as constantly there, but she can push through that pain and she receives benefit from using deep heat. When she has a flareup, she cannot move her shoulder, and this causes pain and discomfort.
The Applicant’s shoulder condition was fully diagnosed as at the Qualification Period. However, she was still having treatment by cortisone injection six months prior to the hearing. There is an absence of medical evidence corroborating the Applicant’s condition and any impairment at the time of the Qualification Period.
Dr Telfer at paragraph 6 of his report details the Applicant’s shoulder condition. He said he is reluctant to administer many cortisone injections due to the impact on her blood glucose level. The Applicant reported a mild limitation to overhead range of motion, but this was self-reporting by the Applicant of her right shoulder complaint and, in any event, is not directed to the Qualification Period.
The Tribunal is satisfied that the Applicant’s right shoulder condition was fully diagnosed at the Qualification Period but is not satisfied that at that time it was fully treated and stabilised. Accordingly, the Applicant is not entitled to a Table 2 impairment rating.
Left wrist condition
The Applicant said in evidence that she underwent surgery at Flinders Medical Centre in December 2017 to release the dorsal compartment in that wrist. The condition improved but it will “niggle” her three or four days a week. It does not prevent her using her wrist, albeit there is constant pain.
The medical notes[17] corroborates that the Applicant attended Flinders Medical Centre for plastic surgery for treatment for stenosing tenosynovitis. The procedure went well, and she was discharged home the same day.
[17] T40, page 260.
In the Respondent’s Statement of Facts, Issues and Contentions at paragraph 44 it is submitted that:
…in March 2018, Dr Sanchez reported that the left wrist pain was “temporary”: T52/300. Further treatment was planned as of March 2018: T53/302. Given the condition was not expected to persist, and further treatment was expected to improve the applicant’s symptoms, the Secretary contends that the wrist condition was clearly not FTS, and no impairment rating can be allocated under Table 2 for any resulting impairment.
The Tribunal agrees with that submission.
The Applicant’s left wrist condition was fully diagnosed at the Qualification Period, but further treatment was planned. Hence, the Tribunal is not satisfied that her condition was fully treated and stabilised as at the Qualification Period. Even if that was incorrect, the description given by the Applicant of the impact of this condition upon her, does not satisfy a mild functional impact and does not qualify for a Table 2 impairment rating.
Diabetes
The Applicant has a past history of diabetes, including in October 2013 as referred to in a Flinders Medical Centre referral form[18].
[18] T23, page 63.
Dr Telfer in his report of 2020 at paragraph 5 said that the Applicant’s diabetes was very poorly controlled. It would rarely impact on her ability to work, albeit she has very high glucose levels and experiences headaches, sweats and nausea. Her mental health condition has impacted on her ability to control her sugar levels. She had no organ damage. He said the medication prescribed should be adequate to control her blood glucose level, but it is her attendance to self-care impacted by her mental health that is driving the poor control.
Again, this report does not assist the Tribunal with respect to this condition as at the Qualification Period.
Dr Meyer in his report of August 2020 said the diabetes had improved over the past 12 months with weight loss and better medication compliance.
The Tribunal is satisfied that the Applicant’s diabetes condition was fully diagnosed at the Qualification Period. However, her mental health was impacting upon this condition. The observation of Dr Meyer that the Applicant has lost weight and has better complied with her medication intake over the last year clearly indicates that the Applicant’s diabetes was complicated by her ongoing mental health condition, her weight and medication such that she was not fully treated and stabilised at the Qualification Period. Accordingly, the Applicant is not entitled to a Table 1 impairment rating.
Asthma
The Applicant’s evidence was that she has suffered from asthma for many years. At the time of her application for DSP she was suffering from a lot of infections which aggravated her asthmatic condition requiring hospitalisation. She gave an example where post-surgery on her wrist she contracted a respiratory infection.
However, the Applicant had difficulty explaining the impact her asthma condition had upon her when not suffering from an infection and relevant to the Qualification Period. She said asthma caused her lethargy. She was on three puffers a day. She referred to shortness of breath and wheezing and reaction to pollutants. However, that was a general description of the impact. She said last year was the worst and that she has been sick since April 2020.
The Applicant could detail instances where her asthma condition was aggravated, for example, by influenza A and human metapneumovirus, but this was well before the claim for DSP. She referred to having an asthma attack walking from her parked car to the Tribunal, but her evidence did not assist the Tribunal with respect to her condition as at the Qualification Period.
Dr Telfer at paragraph 4 of his report, to the extent he referred to the Applicant’s asthma condition, was of no assistance in assessing the Applicant’s condition as at the Qualification Period. Dr Meyer, again, could only express an opinion as at August 2020 and said, in between flare ups, she occasionally struggles with physical activity and her impairment on Table 1 should be assessed as mild (5 points).
The Tribunal is satisfied that the Applicant’s asthma condition was fully diagnosed as at the Qualification Period, but it is not satisfied that it was fully treated and stabilised as at the Qualification Period and cannot be allocated a Table 1 impairment rating.
Liver condition
The Applicant at first could not recall when her liver condition was diagnosed but finally said it was in 2017. However, the Applicant underwent a liver biopsy in June 2018. As the Respondent observed at paragraph 49 of their Statement of Facts, Issues and Contentions, the result of that biopsy was highly suggestive of a diagnosis of primary biliary cirrhosis (PBC), but an overlap of PBC and autoimmune hepatitis could not be excluded.
It is clear that the Applicant’s liver condition was still being treated post the Qualification Period and, as at June 2018, there was no confirmed diagnosis. The liver condition was not FDTS as at the Qualification Period and no impairment rating can be attributed to that condition.
Conclusion
The Applicant did not complete a program of support as at the Qualification Period and did not at that time satisfy any exemption from doing so. She said in evidence that she was not aware of the requirement to complete a program of support until she appeared in the AAT1.
For the Applicant to satisfy the Tribunal that she was, as at the Qualification Period, entitled to the DSP, she must first satisfy the Tribunal that for any one condition, she satisfied the criteria of severe functional impact entitling her to an assessment of 20 points.
The most significant of her many conditions were her mental health condition and spinal condition. For the reasons outlined above, both conditions were fully diagnosed but not fully treated and stabilised as at the Qualification Period. As for her other conditions, the Tribunal was not satisfied that the Applicant was entitled to an impairment rating with respect to the relevant Table. Hence, the application for DSP cannot succeed having regard to the evidence before the Tribunal.
The Applicant was distressed and crying through much of her evidence. Presenting her case before the Tribunal clearly had a significant impact upon her. This decision by the Tribunal will also be very distressing to the Applicant, however, there are aspects of that evidence that are relevant should the Applicant wish to consider making a fresh application for DSP.
The Applicant has evidence of a clinical psychologist Mr Upsdell dated 11 October 2018 which confirms the diagnosis of major depressive disorder. There is also evidence of Dr Telfer[19], outlining the Applicant’s various conditions as they relate to the Impairment Tables, together with the report of Dr Meyer of August 2020 who, having considered the Impairment Tables, opined that in respect of Table 5 – mental health function – the Applicant satisfied the criteria of severe functional impact (20 points); and Table 4 – spinal function – opined she met the criteria of moderate functional impact (10 points). Dr Meyer also made an assessment in relation to asthma under Table 1 of mild functional impact (five points) and in relation to her right shoulder under Table 2 of mild functional impact (five points).
[19] T75, pages 399 – 401.

Those opinions arguably may assist the Applicant should she make a fresh claim for DSP. Also, the authors express opinions about her CITW, and that may be relevant to the consideration of the exemptions from completing the program of support.
Decision
The decision under review is affirmed.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.

……………[SGND]……………….

Administrative Assistant Legal

Dated: 28 May 2021

Date of hearing: 29 January 2021

Applicant:

Self-represented

Representative for the Respondent: Mr Alex Chan, Sparke Helmore Lawyers

[2021] AATA 1553

28 May 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth.
……………[SGND]………………. Administrative Assistant Legal Dated: 28 May 2021
Date of hearing:	29 January 2021
Applicant:	Self-represented
Representative for the Respondent:	Mr Alex Chan, Sparke Helmore Lawyers