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

[2020] AATA 2793

Kirk and Secretary, Department of Social Services (Social services second review) [2020] AATA 2793 (10 August 2020)

Division:GENERAL DIVISION

File Number(s): 2019/6025

Re:Adam Kirk

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:10 August 2020

Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

............................................................

Member W Frost

Catchwords

SOCIAL SECURITY – Disability Support Pension – mental health condition – chronic pain condition – whether conditions are fully diagnosed, fully treated and fully stabilised – mental health condition is fully diagnosed but not fully treated or fully stabilised – chronic pain condition is fully diagnosed but not fully treated or fully stabilised – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975
Mental Health Act 2007 (NSW)
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher and Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

REASONS FOR DECISION

Member W Frost

10 August 2020

INTRODUCTION

1. The Applicant, Mr Adam Kirk, is 45 years old and lives in Wongarbon, near Dubbo, in New South Wales. Mr Kirk has mental health and chronic pain conditions that give rise to his claim for the Disability Support Pension (DSP).

2. In November 2017, Mr Kirk’s claim for the DSP was rejected by the Department of Human Services, now Services Australia (referred to here as the Agency). In May 2019, an Authorised Review Officer (ARO) affirmed the Agency’s decision to reject Mr Kirk’s claim for the DSP and, in August 2019, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) also affirmed this rejection. In October 2019, Mr Kirk applied for review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (Tribunal).

3. The Agency, on behalf of the Respondent, did not consider that Mr Kirk was qualified for the DSP at the date of his claim in November 2017, or within the relevant 13 weeks thereafter, because his conditions were not ‘fully treated’ and ‘fully stabilised’ and therefore could not be assigned an impairment rating to meet the required 20 points in the impairment tables (Impairment Tables) set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Determination) and because he did not have a continuing inability to work.  

4. On 22 July 2020, the Tribunal held a hearing of Mr Kirk’s application, with the parties appearing by telephone.

   ISSUE

5. The issue before the Tribunal is whether Mr Kirk qualified to receive the DSP at the date of his claim on 23 November 2017 or within the following 13 weeks.   

   BACKGROUND

6. On 23 November 2017, Mr Kirk lodged his DSP claim with the Agency (being Document numbered ‘T10’ in the bundle of documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act)).[1] In his claim form, Mr Kirk listed his ‘disabilities, illnesses or injuries’ as being: chronic pain, chronic fatigue, generalised anxiety, depression, chronic insomnia, rotator cuff injury of the right shoulder, cervical spondylosis and chronic lumbar pain.[2]

   [1] Being Exhibit R1, T10, pages 133-163.

   [2] ibid., page 159.

7. On 30 November 2017, Mr Kirk’s claim for the DSP was rejected by the Agency on the basis of its assessment that he did not have an impairment rating of 20 points or more under the Impairment Tables.[3]

   [3] Exhibit R1, T14, pages 186-187.

8. On 14 May 2019, an ARO of the Agency affirmed the rejection of Mr Kirk’s DSP claim.[4] The ARO found Mr Kirk’s chronic pain condition was not ‘fully diagnosed, treated and stabilised’, and his mental health condition was not ‘fully treated and stabilised’.

   [4] Exhibit R1, T22, pages 322-325.

9. On 29 May 2019, Mr Kirk applied to the AAT1 for review of the Agency’s decision.[5]

   [5] Exhibit R1, T2, page 4.

10. On 9 August 2019, the AAT1 affirmed the rejection of Mr Kirk’s DSP claim.[6] The AAT1 found that Mr Kirk’s chronic pain and mental health conditions were neither ‘fully treated’ nor ‘fully stabilised’ and therefore could not be assigned any impairment rating under the Impairment Tables.

    [6] ibid., pages 3-9.

11. On 24 October 2019, Mr Kirk lodged an ‘Application for Second Review of Decision’ with this Tribunal.[7] Mr Kirk claimed in the application that the AAT1 decision was wrong because:

    I believe the evidence, I have provided supports my disability and indicates it has been fully diagnosed, treated and stable. I don’t believe all the information provided has been adequately considered or been taken into account.

    [7] Exhibit R1, T1, pages 1-2.

    CONTENTIONS

12. Mr Kirk told the Tribunal that he disagreed with the contentions of the Respondent set out in the document titled Secretary’s Statement of Issues, Facts and Contentions dated 6 April 2020. Mr Kirk referred the Tribunal to the documentation filed with the Tribunal, including his previous workers’ compensation claim.

13. Mr Kirk submitted that he had difficulty with his conditions and seeking adequate treatment because he had moved between many health care providers. In this regard, although he had been referred to health professionals for further treatment or medication there was said to be no doctor in the Dubbo area that was willing or able to treat Mr Kirk and his conditions or make the required referrals to medical specialists. Mr Kirk made claims about the level of professional treatment he had received from some of these doctors and referred to complaints that he had made to the Health Care Complaints Commission in NSW. Mr Kirk further said that his doctors had played a ‘major part’ in his conditions because they failed to properly treat him. To this end, Mr Kirk’s representative, Ms Evelyn May from Disability Advocacy NSW, told the Tribunal that Mr Kirk had done his best to get the required treatment to improve his condition, but there were often barriers to continuing treatment with a health professional.      

14. Mr Kirk further stated that the report of Dr Mason, Psychiatrist, dated 29 January 2019, was ‘ambiguous’ in relation to the value of back surgery for his chronic pain condition, despite purportedly informing Mr Kirk at his examination that if he had the operation it would make that condition worse.

15. Mr Kirk also referred to the period between 2007 and 2014 when, he contended, he was covered by workers’ compensation legislation and there were ‘unfit to work’ certificates for the ‘bulk of all that period’ due to his back problems. Additionally, in 2017, Mr Kirk had a car accident the effects of which, he claimed, were not properly considered or appreciated by his then lawyers for his workers’ compensation claim.

16. Mr Kirk told the Tribunal that he could not understand why the Respondent contended that he had a zero point impairment rating under the Impairment Tables in circumstances where he had long-standing pre-existing conditions. Mr Kirk disagreed with the Respondent’s contention that his conditions could not be assigned any impairment rating and told the Tribunal that his day-to-day living was a ‘struggle’. For example, Mr Kirk referred to a September 2011 report by Dr John Bosanquet that was completed for his workers’ compensation claim on which Mr Kirk had annotated with a list of his impairments, including various chronic pain issues, movement restrictions, insomnia and the associated stress and anxiety.[8] Mr Kirk also said that he needs morphine and other medication, but he cannot receive them because of his issues with medical professionals. Mr Kirk said this inability to receive proper medication ‘severely restricts’ his ability to ‘do anything’ or ‘think properly’.

    [8] Exhibit R1, T19, pages 279-288.

17. There was reference made by Mr Kirk to an insurance company in 2013 or 2014 declaring him unfit to work for two years, but Mr Kirk conceded that this occurred before his DSP claim and the qualification period.

18. In relation to the Respondent’s contention that consistent treatment should have occurred to demonstrate that Mr Kirk’s conditions were ‘fully treated’ and ‘fully stabilised’, he submitted that his physiotherapist had told him that too many sessions were not good for him, so he had a break from those weekly sessions to see whether this would assist his chronic pain condition.

19. The Tribunal was told by Ms May that Mr Kirk has had multiple hospitalisations due to his mental health condition and is socially isolated in regional NSW, with limited relationships with family and friends. However, Ms May informed the Tribunal that she was arranging regular psychological treatment and pain management and she considered there was a high likelihood that Mr Kirk would meet the criteria to be eligible for the DSP once he had received this consistent support. 

20. Mr Kirk finally told the Tribunal that he believes the ‘Centrelink process’ is unfair in not taking into account his medical history before the qualification period in determining eligibility for the DSP.

    CONSIDERATION

    What is the qualification period for assessment of eligibility for the DSP?

21. Clause 4(1) in Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act) sets out how to determine the ‘start day’ for a social security payment, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

22. Pursuant to the above, the Tribunal is required to assess Mr Kirk’s DSP claim based on his conditions as at the date his claim was made or within 13 weeks of that time.[9] The ‘start day’ for Mr Kirk’s claim for the DSP is the day he lodged that claim, which was 23 November 2017, and the 13 week qualification period therefore runs from that date until 22 February 2018. In accordance with the legislative requirements, if there has been any deterioration or change to Mr Kirk’s medical conditions suggesting he may have become qualified for the DSP at a later time (that is, after the end of the qualification period in February 2018), it is irrelevant to the Tribunal’s consideration of his impairments at the qualification period for the purpose of this application.

    [9] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8]; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at 31-33.

23. In this regard, in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34], the Tribunal stated 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). This 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.

24. The Federal Court of Australia in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 has endorsed the principle, discussed in Harris[10] and Fanning,[11] that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the applicant’s condition during the qualification period.[12]

    [10] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252.

    [11] Fanning and Secretary, Department of Social Services [2014] AATA 447.

    [12] Gallacher and Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29]).

25. Accordingly, the Tribunal can only consider Mr Kirk’s eligibility for the DSP within the qualification period commencing on 23 November 2017 and ending on 22 February 2018, assisted by medical information regarding his conditions as they were during that period, not following the end of that qualification period on 22 February 2018.

    What are the qualification criteria for the DSP?

26. Section 94(1) of the Social Security Act 1991 (Act) relevantly provides that a person is qualified for the DSP if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)one of the following applies:

    (i)     the person has a continuing inability to work…

27. Evidently from the terms of the above provision, each element of these qualification criteria set out in subsection 94(1)(a) to (c) of the Act must be satisfied for a person to qualify for the DSP.

    The Impairment Tables  

28. The Impairment Tables for the DSP and the rules for their application (Rules) were made by legislative Determination pursuant to section 26(1) of the Act. In accordance with section 27 of the Act, the Impairment Tables to be applied by the Tribunal are contained in the Determination, which took effect from 1 January 2012.

29. As noted above in these reasons, under subsection 94(1)(b) of the Act, a person’s impairment must be determined to be 20 points or more under the Impairment Tables. As set out in section 5 of the Rules, the Impairment Tables are: function based rather than diagnosis based; describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.   

30. Section 6 of the Rules sets out how to apply the Impairment Tables when assessing functional capacity and assigning impairment ratings for a person. When applying the Impairment Tables, the impairment ‘must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person’ (subsection 6(1)). The Impairment Tables may only be applied after the person’s medical history has been considered and an impairment rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment ‘is more likely than not, in light of available evidence, to persist for more than 2 years’ (subsections 6(2) and (3) of the Rules).

31. Subsection 6(4) of the Rules provides that a person’s condition is ‘permanent’ if each of the following criteria is met:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;

    (b)the condition has been fully treated;

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

32. In determining whether a condition has been ‘fully diagnosed’ and ‘fully treated’ for the purposes of subsections 6(4)(a) and (b), subsection 6(5) of the Rules provides that the following is to be considered:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

33. Under subsection 6(6) of the Rules, a person’s condition is ‘fully stabilised’ if:

    (a)either the person has undertaken reasonable treatment for the condition 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 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)     significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.  

34. The Rules provide, at subsection 6(7), that ‘reasonable treatment’ is treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

35. The presence of a diagnosed condition does not necessarily mean there will be an impairment to which an impairment rating can be assigned under the Impairment Tables if the condition has no functional impact on the person, including because there has been appropriate treatment for that condition (subsection 6(8) of the Rules).

36. Subsection 10(1) of the Rules states that table selection from the available Impairment Tables is to be made applying the following steps:

    (a)identify the loss of function; then

    (b)refer to the Table related to the function affected; then

    (c)identify the correct impairment rating.

37. When assigning an impairment rating, section 11 of the Rules provides that:

    (a) an impairment rating can only be assigned in accordance with the rating points in each Table; and

    (b) a rating cannot be assigned between consecutive impairment ratings (example: A rating of 15 cannot be assigned between 10 and 20); and

    (c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and

    (d) a rating cannot be assigned in excess of the maximum rating specified in each Table.

    Was there a physical, intellectual or psychiatric impairment?

38. The Tribunal is satisfied on the evidence before it, including Mr Kirk’s medical and related reports regarding his mental health and chronic pain conditions, that Mr Kirk had impairments during the qualification period that meet subsection 94(1)(a) of the Act, being that a person ‘has a physical, intellectual or psychiatric impairment’.

1. While the Respondent accepted that Mr Kirk suffered impairments so as to satisfy this criteria for qualification for the DSP, the Respondent contended that none of Mr Kirk’s conditions met the requisite test of being ‘fully treated’ and ‘fully stabilised’ during the qualification period to be assigned an impairment rating under the Impairment Tables in order to satisfy subsection 94(1)(b) of the Act, being an impairment ‘of 20 points or more under the Impairment Tables’.

2. The Tribunal considers Mr Kirk’s impairments below and whether he can be assigned an impairment rating in relation to those impairments such as to satisfy subsection 94(1)(b) of the Act.  

   Mental health condition

3. In relation to Mr Kirk’s mental health condition, the Tribunal is satisfied that it was ‘fully diagnosed’ during the qualification period, despite there being no evidence of a diagnosis being made during that period. A diagnosis was made by Dr Wayne Mason, Psychiatrist, on 29 January 2019,[13] which was almost one year after the end of the qualification period in February 2018. The diagnosis of Mr Kirk’s mental health condition was borderline personality disorder, persistent dysthymic disorder and anxiety.[14]

   [13] Exhibit R1, ST7, pages 399-412.

   [14] ibid., page 412. 

4. The Tribunal in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [88] said as follows in relation to a formal diagnosis of a mental health condition made after the qualification period for a DSP:

   There is nothing inherent in the process of diagnosis or in diagnosis itself that suggests that a condition does not exist until it is diagnosed… Provided there is a diagnosis at some stage and the evidence shows that the person suffered from the condition in the relevant period that meets the description of being a condition that is fully diagnosed.

5. The purpose of Dr Mason’s January 2019 examination of Mr Kirk was to conduct an independent medical examination in relation to ‘any psychiatric injury arising from the subject motor accident on 30 August 2017’. In his 29 January 2019 report, Dr Mason relevantly stated that:[15]

   [15] ibid., pages 401-412.

   SYMPTOMS

   …Before the accident he had pain through his entire back. After the accident he developed a sharp, stabbing lumbar pain and he was unable to lift things like shopping. He said he found it hard to get up and down steps. He said he had pain in his left scapula and exacerbation of tingling and numbness in both hands.

   I specifically asked about psychological symptoms. Mr Kirk said he became depressed and lost motivation because of the physical pain. He then complained that his lawyers had not done the right thing by him in his work injury claim from 2007.

   …

   TREATMENT

   …

   I asked if he had seen a psychiatrist or a psychologist. He said he had seen a psychologist, Mr Tim Manning of Dubbo one or twice weekly, but this left him in a hole. He thinks he attended approximately 10 sessions with no benefit…He told me had seen a psychologist, Mr Peter Allen in Kildara Street between 2007 and 2014 for his worker’s compensation injury. He said he found this treatment helpful. He said he did not see anybody else.

   I asked if he had attended a psychiatrist. He said he had seen Dr Sanjay Sinha between 2009 and 2012 on a monthly basis because of his workers compensation case. He was prescribed the antidepressant venlafaxine. He also said he consulted psychiatrist, Dr John Baker of Parramatta but did not attend for very long. Her reported his general practitioner, Dr Williams, prescribed quetiapine 200 mg, but he was not sure when this happened.

   He said he is currently not seeing any psychiatrist or psychologist, but he has been referred to a female psychologist in Dubbo and is waiting for an appointment.

   MEDICATIONS

   Current medications consist of Targin 10 mg daily and cannabis one quarter of a gram per day. He believes the cannabis helps with his mobility. He did not believe it provided any psychological relief. The cannabis has not been medically prescribed.

   …

   SUMMARY AND ASSESSMENT

   Mr Adam Kirk is a 44 year old man who was involved in a minor rear-end motor accident in Dubbo on 30 August 2017. He had significant pre-existing physical injuries from a work accident in 2007 and it appears there may have been some exacerbation of his backpain, although this determination lies outside my area of expertise.

   As a consequence of this, he claims his psychological condition has also been exacerbated. He is a person who has been anxious from his childhood on, he suffered panic attacks since commencing work, there have been suicide attempts prior to the subject motor accident, and there is pre-existing and current use of marijuana.

   In my opinion he suffered a pre-existing Persistent Dysthymic Disorder with Anxious Distress on the background of a Borderline Personality Disorder. It is possible that there has been a minor exacerbation of his Persistent Dysthymic Disorder with Anxious Distress in the subject motor accident.

   DSM-5 DIAGNOSIS

   ·Exacerbation of Persistent Dysthymic Disorder with Anxious Distress

   ·Borderline Personality Disorder

   OPINION

   Mr Kirk is a 44 year old man with pre-existing physical and psychological problems who was involved in a minor motor vehicle accident. It is possible that his back pain has been exacerbated and this in turn has exacerbated his psychological condition.

   …

   In my opinion the claimant suffered from an ongoing borderline personality disorder and since 2007, a persistent dysthymic disorder with anxious distress.

6. While the Tribunal is satisfied that Mr Kirk’s mental health condition was ‘fully diagnosed’ as of the qualification period, in accordance with subsection 6(4)(a) of the Rules, based on the evidence submitted to the Tribunal it is not satisfied that Mr Kirk’s mental health condition was ‘fully treated’ and ‘fully stabilised’ during the qualification period as required by subsection 6(4)(b) and (c) of the Rules.

7. To this end, the Tribunal sets out the documentary evidence in relation to Mr Kirk’s mental health condition, as follows:

   a.    On 29 November 2012, a Multidisciplinary Pain Management Assessment of Mr Kirk completed by Total Pain Management recommended he receive psychological and psychiatric treatment, in addition to pain management treatment.[16] In this regard, the report noted that Mr Kirk ‘experiences extremely severe levels of stress, anxiety and depression, low levels of self-efficacy and he is at risk of developing a long-term disability, which suggests he is not coping well with his chronic pain’.[17]

   b.    On 12 January 2015, Dr Spry discharged Mr Kirk from a mental health, drug and alcohol facility at Orange Health Service following ‘suicidal ideation in context of situational crisis’.[18] In his discharge summary, Dr Spry confirmed that Mr Kirk had both depression and chronic pain and recommended pharmacological treatment of the antidepressant mirtazapine and referral to a chronic pain team. Dr Spry noted Mr Kirk’s history of ‘adverse effects’ on antidepressants that had ‘limited their use’. Dr Spry accordingly recommended a ‘slow titration’ of medication over a number of weeks.

   c.     On 23 January 2015, Ms Finnie, Psychiatric Nurse at Dubbo Community Mental Health, reported to Mr Kirk’s general practitioner (GP) that his diagnosis was borderline personality disorder and depression, but he was yet to commence taking mirtazapine for ‘numerous reasons’. Ms Finnie said Dubbo Community Mental Health and Mr Kirk had agreed that ‘he would rather see his GP for management of depression and reported chronic pain’.[19]

   d.    On 2 March 2016, Dr Thong, Pain Specialist, reported to Mr Kirk’s GP that his psychological state is a ‘major contributing factor’ to his chronic pain condition. Dr Thong recommended increasing Mr Kirk’s Endep medication to ‘antidepressant doses’. Dr Thong also said, ‘Psychiatrist input would be helpful’ and that he would like to review Mr Kirk in three months.[20]

   e.    On 1 December 2016, a P. Ribton-Turner, Registered Nurse at Dubbo Community Mental Health, in consultation with the visiting Psychiatrist, Dr Kealey-Bateman, recommended to Mr Kirk’s GP that his Endep medication for his mental health condition be increased and an appointment made with the Psychiatrist, following an assessment of Mr Kirk by Wellington Community Mental Health. It was also suggested that Mr Kirk consider assistance for his grief and loss issues.[21]

   f.   On 25 April 2017, Dr Mills, Registered Psychologist, reported to Mr Kirk’s GP that she was ‘unable to make contact’ with Mr Kirk to arrange an appointment for psychological services. Accordingly, Dr Mills discharged Mr Kirk from the service.[22]

   g.    On 29 March 2018, which was after the end of the qualification period, Dr Abdullah, GP, reported that Mr Kirk was not then on any antidepressant medication for his mental health condition, although noted that he had previously been on such medication without reference to a particular period of time.[23]

   h.    On 5 June 2018, Mr Kirk told an employment services assessor that he had ‘trialled various medications and either did not like the side effects or could not afford them’, and reported that he had ‘previously seen Dr Sanjay Sinha (Psychiatrist) although not for some time’. Mr Kirk also reported ‘no current medication as he does not like the way it makes him feel’ and it was noted that there is ‘no evidence of psychological intervention’, with Mr Kirk’s mental health condition being ‘considered permanent for the purpose of the assessment’.[24]

   i.   On 6 September 2019, Dr Nina Dowling, GP, completed a ‘Mental Health Care Plan & Review’ for Mr Kirk, who had presented to her with depression.[25] Dr Dowling noted that Mr Kirk’s ‘Main Problem/Diagnosis’ was ‘Major Depression, probable complex PTSD’. Mr Kirk’s goals were listed as ‘Improve pain management’ and ‘Focus on coping skills’, while the ‘Actions/Treatments’ were said to be referrals to a pain specialist, psychologist, psychiatrist and Dubbo Community Mental Health.[26] 

   j.   On 12 December 2019, Mr Kirk was discharged from the mental health unit at Dubbo Base Hospital following his admission on 4 December 2019 by NSW Police under a ‘section 22’[27]. The mental health discharge and transfer summary states that ‘Police had been called by [Mr Kirk], saying that he had been threatened by someone and hit over the head with a bottle. When the Police attended, they felt that [Mr Kirk] was delusional and brought him into the Emergency Department under a section 22. He was assessed by the Emergency Department and made Mentally ill, under the MHA’.[28] On discharge, Mr Kirk was to continue on Amisulpride with gradually increasing doses over a period of two weeks and to attend his GP for ‘ongoing analgesic management’.[29]    

   [16] Exhibit R1, T19, pages 289-311.

   [17] ibid., page 300.

   [18] Exhibit R1, T11, pages 168-171.

   [19] Exhibit R1, T12, page 182.

   [20] Exhibit R1, ST2, pages 390-391.

   [21] Exhibit R1, ST3, page 392.

   [22] Exhibit R1, ST4, page 393.

   [23] Exhibit R1, T17, page 270.

   [24] Exhibit R1, T18, page 273.

   [25] Exhibit R1, ST9, pages 414-415.

   [26] ibid., page 415.

   [27] Exhibit A1, page 1. The Tribunal considers that ‘section 22’ is a reference to the use of the power under section 22 of the Mental Health Act 2007 (NSW), for a police officer to apprehend a person who ‘appears to be mentally ill or mentally disturbed’ and take them to ‘a declared mental health facility if the officer believes on reasonable grounds’ that:

   ‘(a) the person is committing or has recently committed an offence or that the person has recently attempted to kill himself or herself or that it is probable that the person will attempt to kill himself or herself or any other person or attempt to cause serious physical harm to himself or herself or any other person, and

   (b) it would be beneficial to the person's welfare to be dealt with in accordance with this Act, rather than otherwise in accordance with law’.

   [28] ibid.

   [29] ibid., page 2.

8. Based on the above history of Mr Kirk’s mental health condition, the Tribunal is not satisfied that, as at the end of the qualification period on 22 February 2018, Mr Kirk had undertaken ‘reasonable treatment’ for the condition in accordance with subsections 6(6) and (7) of the Rules. For example, over a period of many years, Mr Kirk’s treating physicians have recommended pharmacological treatments for his mental health condition. However, there was insufficient evidence before the Tribunal to demonstrate that Mr Kirk had complied with all reasonable treatment recommendations as of the end of the qualification period. The evidence indicates that Mr Kirk had not complied with pharmacological recommendations and psychological treatment. In this regard, in December 2016, it was recommended that Mr Kirk increase his Endep medication and see a psychiatrist. There was no evidence before the Tribunal that either of these recommendations were followed. Indeed, in April 2017, before the start of the qualification period, a psychologist was unable to contact Mr Kirk to arrange psychological services and, in March 2018, being after the end of the qualification period, Mr Kirk’s GP reported that he was not on antidepressant medication. In this way, the Tribunal did not have any evidence of treatment undertaken during the qualification period between November 2017 and February 2018. Therefore, although the Tribunal acknowledges Mr Kirk’s stated difficulties with receiving appropriate care and treatment from health professionals, it cannot find that Mr Kirk’s mental health condition was ‘fully treated’ and ‘fully stabilised’ under the Rules.  

9. While the Tribunal is satisfied that Mr Kirk’s mental health condition was ‘fully diagnosed’ as at the qualification period, it is not satisfied that it was ‘fully treated’ and ‘fully stabilised’ and, pursuant to subsection 6(3) of the Rules, the Tribunal therefore cannot assign an impairment rating under the Impairment Tables for this condition.   

   Chronic pain condition

10. In relation to Mr Kirk’s chronic pain condition, affecting his upper limbs and spine, the Tribunal is satisfied that it was ‘fully diagnosed’ as at the qualification period as required by subsection 6(4)(a) of the Rules. However, based on the evidence submitted to the Tribunal, it is not satisfied that this condition was ‘fully treated’ and ‘fully stabilised’ during the qualification period as required by subsection 6(4)(b) and (c) of the Rules.

11. To this end, the Tribunal sets out the documentary evidence in relation to Mr Kirk’s chronic pain condition, as follows:

    a.On 29 November 2012, a Multidisciplinary Pain Management Assessment of Mr Kirk completed by Total Pain Management reported that Mr Kirk ‘has a limited understanding of his chronic pain diagnosis, and is finding it difficult to cope with his injury, and the pain and suffering experienced as a result of it. He experiences some difficulty with sleep, appetite, concentration, memory and in his social life’. As a result, it was recommended that Mr Kirk undertake a ‘multidisciplinary pain management treatment’ program called ‘Regain’.[30]  

    [30] Exhibit R1, T19, pages 300 and 303.

    b.On 2 March 2016, Dr Thong, Pain Specialist, reported to Mr Kirk’s GP that his psychological state is a ‘major contributing factor’ to his chronic pain condition, and ‘controlling his distress will help him cope with his pain’. As set out above in these reasons, Dr Thong recommended increasing Endep to an antidepressant dosage and ‘input’ from a psychiatrist.[31]

    [31] Exhibit R1, T11, page 173.

    c.On 30 August 2017, Mr Kirk was involved in a car accident ‘wherein his vehicle was stationary and he was hit from behind at a speed of approximately 20-30km/hour…he was reasonably well for about 24 hours or so after the accident but then he complained of pain in the cervical, thoracic and lumbar spine’.[32]

    [32] Exhibit R1, T19 page 315.

    d.On 3 September 2017, a Dubbo Hospital Emergency Department discharge referral document noted that Mr Kirk attended that day presenting with ‘chronic back pain’.[33] It reported that Mr Kirk had a supply of ‘endone/codeine at home’ and the ‘only thing that works for his back is marajuna [sic] – ran out at home and now flare up of back pain’. It further reported that Mr Kirk had no recent trauma, and was ‘not known to chronic pain specialist’. Mr Kirk was offered but refused endone and diazepam and was referred back to his GP for a possible MRI and referral to a back specialist.

    [33] Exhibit R1, T15, pages 258-259.

    e.On 27 September 2017, Dr Hapani, GP, referred Mr Kirk to Dr Thong for review and formulation of a pain management plan for his chronic pain condition after Mr Kirk presented with ‘increasing pain after a low speed motor vehicle injury [the 30 August 2017 accident] causing whiplash with increasing subjective radiculopathy on the right side’.[34] Dr Hapani also referred Mr Kirk to an orthopaedic specialist at Dubbo Base Hospital for ‘opinion and management’ in relation to his condition.[35]

    f.On 4 October 2017, a Dubbo Base Hospital discharge referral document sent to Mr Kirk’s GP reported that he had presented with a ‘36 hour history of chest pain and chronic musculoskeletal chest pain.’[36] An ECG returned ‘normal’ results and Mr Kirk’s chest pain ‘self resolved’, although he received pharmacological treatment for his back and shoulder pain. Mr Kirk was discharged with analgesia and a pain management review was scheduled with his GP.

    g.On 16 October 2017, Mr Kirk attended a consultation at Activate Physiotherapy for his chronic pain condition following referral from his GP.[37] The Tax Invoice generated following that physiotherapist appointment noted that there were no further appointments booked. However, on 19 October 2017, Mr Kirk attended South Dubbo Physiotherapy Centre and a report to his GP stated that they would review him in one week.[38]

    h.On 23 October 2017, approximately one month before the start of the qualification period, Dr Thong, Pain Specialist, reported to Mr Kirk’s GP that ‘the correct way to manage his pain is exercise and fitness’. Dr Thong recommended a pain management plan, referral to an orthopaedic surgeon and exercise physiologist, with no analgesics except for anti-inflammatory medication.[39]

    i.On 21 December 2017, which was during the qualification period, Dr Taylor, Pain Medicine Specialist, reported to Mr Kirk’s GP that ‘his symptoms date back to a work injury around 2007’, when Mr Kirk was ‘working under a car to change a tire when things gave way suddenly’, leading to neck and shoulder pain.[40] A further incident led to a lower back injury. Dr Taylor noted that following two operations on his right shoulder, Mr Kirk ‘appears to have had a good functional return in terms of range of motion but struggles with significant ongoing pain and disability. He also has persistent neck pain and low back pain’. Dr Taylor further noted of Mr Kirk that ‘[o]ver the years his pain and disability has progressed’; he ‘is seeing a physiotherapist weekly and a psychologist but again is not really improving in terms of pain coping strategies or functional capacity’. Dr Taylor reported that Mr Kirk was managing his chronic pain condition with Targin and other medications, but in relation to his mental health condition he was ‘intolerant to Lyrica and Cymbalta and has tried previous antidepressants which again he says were not tolerated’. Dr Taylor reported that Mr Kirk had ‘developed a number of suboptimal pain coping strategies including fear avoidance, catastrophisation and has a high sense of injustice’, which is ‘compounded by his past history of anxiety and depression’. In summary, Dr Taylor stated that further injections or surgery would not be beneficial, he was ‘happy’ for Mr Kirk to continue using Targin at his current dosage, but also recommended focusing on pain management strategies with his physiotherapist and psychologist.

    j.Also on 21 December 2017, Dr Williams, GP, reported that Mr Kirk’s current and planned treatment for his chronic pain condition was analgesic.[41]

    k.On 1 February 2018, which was also during the qualification period, Dr Moloney, Neurosurgeon and Spine Surgeon, reported to Mr Kirk’s GP that he ‘has restricted cervical spine movements and lumbar spine movements. Power, tone and muscle bulk were within normal limits and deep tendon reflexes although diminished were symmetrical. His lumbar spine movements were also restricted because of discomfort’. Dr Moloney said that he reassured Mr Kirk ‘that surgical intervention is not necessary for this problem and indeed is contra-indicated’. Dr Moloney’s ‘only suggestion’ for ‘further management’ was for Mr Kirk to return to Dr Taylor for pain management.[42]

    l.On 20 February 2018, again during the qualification period, Dr Abdullah, GP, referred Mr Kirk to Dr Taylor for ‘opinion and management’ regarding his chronic pain condition and stated that he was ‘at a lost [sic] on how to manage his symptoms’.[43]

    m.On 29 March 2018, after the end of the qualification period, Dr Abdullah, GP, reported that Mr Kirk’s current and planned treatment for his chronic pain condition was analgesic and his past treatment was ‘rehabilitation’.[44]

    n.On 18 June 2019, Dr Seamus Barrett, GP, referred Mr Kirk again to Dr Taylor, Pain Medicine Specialist, for ‘opinion and management’ of his chronic pain condition, which is ‘significantly impacted by low mood and associated fear avoidance behaviours’.[45] The referral notes that Mr Kirk is using ‘Targin 10/5mg daily as needed’, together with input from a physiotherapist; a psychology review had also been arranged.  

    [34] ibid., page 263.

    [35] Exhibit R1, T15, page 264.

    [36] Exhibit R1, T15, pages 265-268.

    [37] Exhibit R1, T11, pages 176-177.

    [38] Exhibit R1, T11, page 178.

    [39] Exhibit R1, T18, pages 312-313.

    [40] Exhibit R1, ST5, pages 394-396.

    [41] Exhibit R1, T16, page 269.

    [42] Exhibit R1, T19, pages 315-316.

    [43] Exhibit R1, T19, page 317.

    [44] Exhibit R1, T17, page 270.

    [45] Exhibit R1, ST8, page 413.

1. Based on the above history of Mr Kirk’s chronic pain condition, the Tribunal is not satisfied that, as at the end of the qualification period on 22 February 2018, Mr Kirk had undertaken ‘reasonable treatment’ for the condition in accordance with subsections 6(6) and (7) of the Rules. Most relevantly, during the qualification period, the Pain Medicine Specialist, Dr Taylor, reported that Mr Kirk had developed ‘suboptimal pain coping strategies’, which was compounded by his mental health condition, and recommended Mr Kirk develop further ‘pain management strategies’ with his physiotherapist and psychologist.[46] Additionally, on 20 February 2018, being two days before the end of the qualification period, and following examination by Dr Moloney, Neurosurgeon and Spine Surgeon, Mr Kirk was referred back to Dr Taylor for review and ‘advice about how to manage his ongoing symptoms’.[47] However, there was no evidence before the Tribunal that Mr Kirk completed Dr Taylor’s clinical recommendation of developing management strategies with his physiotherapist and psychologist. In this regard, in June 2019, Mr Kirk was again referred to Dr Taylor for further ‘opinion and management’. There was also no evidence that Mr Kirk treated his chronic pain condition with exercise and fitness in conjunction with an exercise physiologist, as recommended by Dr Thong before the qualification period in October 2017.[48]

   [46] Exhibit R1, ST5, pages 394-396.

   [47] Exhibit R1, T19, page 317.

   [48] Exhibit R1, T18, pages 312-313.

2. While again acknowledging Mr Kirk’s stated difficulties with receiving appropriate care and treatment from health professionals, the Tribunal finds on the evidence that, as at the qualification period, treatment for Mr Kirk’s chronic pain condition was incomplete. Accordingly, the Tribunal is not satisfied that Mr Kirk’s chronic pain condition was ‘fully treated’ and ‘fully stabilised’ during the qualification period ending in February 2018. Therefore, pursuant to the Rules, an impairment rating cannot be assigned to any impairment arising from this condition under the Impairment Tables.

   CONCLUSION

3. Mr Kirk made his claim for the DSP in November 2017. Although Mr Kirk’s present circumstances are such that a different outcome may be reached if he lodged a new DSP claim with the Agency following adequate treatment, for the purpose of the current review before the Tribunal, it must apply the terms of the Act and the Rules to his DSP application from November 2017 and throughout the qualification period ending more than two years ago on 22 February 2018. As a result, and based on the evidence set out above in these reasons, the Tribunal finds that during the qualification period Mr Kirk could not be assigned an impairment rating under the Impairment Tables for his conditions. Mr Kirk’s claim for the DSP before the Tribunal therefore fails to satisfy subsection 94(1)(b) of the Act requiring a rating of 20 points or more under the Impairment Tables.

4. Because the Tribunal has found that Mr Kirk did not have a total impairment rating of 20 points under the Impairment Tables, given the conjunctive nature of subsection 94(1) of the Act, requiring each element to be met by an applicant, the Tribunal is not required to consider whether Mr Kirk had a ‘continuing inability to work’ pursuant to subsection 94(1)(c), in order to determine whether he meets this subsequent element of the DSP qualification criteria.

5. Accordingly, Mr Kirk’s application before this Tribunal is unsuccessful. This does not diminish the serious nature of the conditions suffered by Mr Kirk. As the Tribunal has noted, Mr Kirk is able to make a new claim for the DSP with the Agency accompanied by all relevant and updated evidence regarding his conditions and associated treatment. Pleasingly, Mr Kirk’s representative at the hearing, Ms May, informed the Tribunal that she was assisting Mr Kirk to seek further medical assistance for his conditions, including so as to be in a position to make a new claim for the DSP in the near future.

   DECISION

6. The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the AAT Act.

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

........................................................................

Associate

Dated: 10 August 2020

Date of hearing:	22 July 2020
Applicant:	By telephone, with Ms Evelyn May, Disability Advocacy NSW
Solicitors for Respondent:	Mr Alan Quanchi, Department of Human Services