LBHS and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 168

LBHS and Secretary, Department of Social Services (Social security second review) [2025] ARTA 168 (3 March 2025)
Applicant/s:  LBHS
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2024/3556

Tribunal:Senior Member M Kennedy
Place:Adelaide
Date:3 March 2025
Decision:The Tribunal affirms the decision under review.

Statement made on 03 March 2025 at 10:44am
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
Disability Support Pension – rejection of claim – fluoride toxicity – fluorosis – diagnosis – non-specific lower back pain – mental health – not diagnosed, reasonably treated and stabilised – decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023
Cases
Gallacher v SDSS [2015] FCA 1123
Statement of Reasons
BACKGROUND

LBHS applied for a grant of disability support pension (DSP) on 13 July 2023. His claim was rejected by Services Australia on 26 August 2023, and this decision was affirmed by an authorised review officer on 8 January 2023 following LBHS’s request for the rejection to be reviewed.
LBHS applied to the Administrative Appeals Tribunal for review on 29 March 2024. The Administrative Appeals Tribunal affirmed the decision to reject LBHS’s claim on 20 May 2024.
In affirming the decision, the Administrative Appeals Tribunal found that LBHS did not meet the criteria for qualification for DSP because his claimed medical conditions of fluorosis with associated pain and mental health conditions were not diagnosed, reasonably treated and stabilised at the date of claim or within 13 weeks of the date of claim.
LBHS applied for second review in the Administrative Appeals Tribunal on 3 June 2024.
On 14 October 2024, the Administrative Appeals Tribunal was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the Administrative Appeals Tribunal before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.
CONSIDERATION
Medical qualification for DSP is provided for in section 94 of the Social Security Act 1991 (the Act). It requires, among other matters, that a person have a physical, intellectual or psychiatric impairment, and that the person’s impairment is of 20 points or more under the Impairment Tables: paragraphs 94(1)(a) and (b) of the Act.
It is settled that it is in the 13-week period from the date of claim that medical evidence must establish the entitlement to DSP: Gallacher v SDSS [2015] FCA 1123 and sections 41 and 42 and Schedule 2 to the Social Security (Administration) Act 1999. Evidence of subsequent changes to health and functional capacity is irrelevant. Later medical evidence that comes into existence outside that period may still be relevant if it casts light on the condition during the 13-week qualification period.
I note that LBHS considers it unfair that the 13-week period from the date of claim has been identified as a key issue in the review, as he considers he was not told about this. However, the requirement that an applicant for DSP be medically qualified for the payment on the date of claim, or will become qualified up to 13-weeks thereafter is a legal and statutory reality that is not dependant on whether or not an applicant is aware of that requirement.
Do LBHS’s impairments rate at least 20 points under the Impairment Tables?
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (the Impairment Tables). The Impairment Tables include directions as to how they are to be applied.
Paragraph 8(3)(a) to the Determination explains that an impairment rating can only be assigned to an impairment if it has been diagnosed by an appropriately qualified medical practitioner. Subsection 8(4) of the Impairment Tables provides that in determining whether a condition has been diagnosed by an appropriately qualified medical practitioner, it must be considered whether there is corroborating evidence of the condition as set out in the requirements of each Table.
Fluorosis / fluoride toxicity / fluoride poisoning
LBHS identified fluorosis exposure as the medical condition affecting his capacity to work in his claim of 13 July 2023. I understand LBHS attributes chronic bone pain, affecting his back in particular, to this condition. I consider it is appropriate to adopt the descriptor of this condition used by the Administrative Appeals Tribunal as fluorosis with associated pain.
LBHS believes that his fluorosis was caused by exposure to fluoride products in the course of his employment as a welder. It appears that LBHS’s belief that he has employment-caused fluorosis has been the subject of medico-legal dispute elsewhere. There is therefore a body of specialist medical assessment directed at the question of whether LBHS has fluorosis.
Dr K, an Occupational Physician Registrar, prepared a report on 23 January 2023 (amended 6 February 2023) arising out of a consultation and examination of LBHS on 23 September 2022. The report was arranged by Gallagher Bassett, a firm charged with administering the Return To Work SA scheme.
Dr K was asked to provide a specific diagnosis of LBHS’s condition, which was presented to him as lower back pain emerging in 2019, abdominal symptoms, and dental discolouration. On the question of diagnosis, Dr K considered LBHS’s complaints as non-specific and potentially arising from multiple pathologies, identifying for example minor changes including a disc bulge at L3/4 in a lumbar spine CT. Dr K observed that the result of the blood tests he had ordered were unremarkable.
Dr K did not have a specific diagnosis for LBHS’s complaints, but suspected LBHS had suffered a non-specific lower back pain and examination supported a diagnosis of a sprain. Dr K considered that the abdominal complaints required further study by a gastroenterologist, and the dental discoloration required assessment by a dentist.
Dr K acknowledged that when taken together, the symptoms and history of exposure provided by LBHS made fluoride toxicity a possibility, but he considered it unlikely, and that each symptom should be evaluated individually. Dr K detected an elevated urinary fluoride result, but explained that elevated urinary fluoride levels do not always translate to harm. Dr K also mentioned that there was a risk of contamination with the test result and it may not reflect true biological levels.
Dr K concluded by stating that he did not believe LBHS’s complaints were the result of work-related fluorosis, which in context I infer to mean are not the result of fluorosis per se.
Dr K further observed that he did not consider that LBHS’s complaints had reached maximum medical improvement.
Another report of an occupational physician was requested by Anderson Solicitors on behalf of LBHS. Dr D examined LBHS on 5 June 2023.
Dr D noted that LBHS had described symptoms of lower back pain and pain in the wrists, forearms and legs. Dr D noted LBHS had poor dentition with brown and white stained teeth, and slightly restricted movement with bilateral lumbar spine guarding.
Dr D diagnosed non-specific back pain, haemorrhoids and dental discolouration. Dr D observed that the non-specific back pain could be caused by multiple factors, and there was no clear relationship between workplace chemical exposure in isolation and the back pain, with similar observations made in relation to the haemorrhoids and abdominal pain, and dental discolouration. Dr D noted a report (that is not before the Tribunal) of Professor G[1] had stated that the dental discolouration was consistent with fluoride exposure.
[1] The Tribunal undertook its own enquiries disclosed to the parties at the hearing to identify that Professor G is an Oral and Maxillofacial Surgeon
Dr D concluded that it was difficult to draw a relationship however there was a constellation of symptoms that could in total correlate with the fluorosis exposure. It should be noted that Dr D’s remarks in that regard were in response to a request that he identify any diagnosis.
Other medical and allied health evidence is also available to the Tribunal. Dr N, General Practitioner refers to concerns over fluoride poisoning in a referral letter to a Dr S on 26 August 2022 I have no report from Dr S.
A chronic disease management plan dated 12 January 2024 prepared by Dr L, General Practitioner[2] refers to multiple body symptoms ‘due to fluoride poisoning’, and lists fluoride poisoning as a patient problem, but a diagnosis of fluoride poisoning is not identified amongst LBHS’s symptoms in a letter of support dated 21 September 2023.[3]
[2] T11
[3] T14
Although falling outside the qualification period of 13 weeks from the date of LBHS’s application, Dr L writes on 10 July 2024[4] that LBHS has been diagnosed by “an occupational therapy doctor / specialist” with chronic fluoride toxicity, and he has been advised by a specialist that there is no treatment available.
[4] Exhibit B
A letter from Ms T, counsellor, dated 29 September 2023 refers to LBHS’s physical discomfort ‘likely stemming from overexposure to fluoride’, and Mr F, physiotherapist states[5] that he is managing LBHS’s long-term effects of exposure to fluoride, and suggests there is medical literature linking fluoride exposure with changes to the muscular and skeletal system.
[5] T16
LBHS considers that Dr D’s report should be preferred to the report of Dr K, and that Dr D has diagnosed fluoride poisoning. He submits that because Dr K was engaged on behalf of the insurer his report should not be relied upon. LBHS further contends that Dr K did not correctly state his medical history, and drew attention to an error as to dates when the discolouration of his teeth became evident, but I note this has been corrected in the report.
In the course of his evidence and in cross-examination (which proceeded with the assistance of a Mandarin interpreter) LBHS was asked to identify where Dr D had diagnosed fluorosis or fluoride poisoning, and LBHS asserted it had been accepted.
I do not accept that there has been a diagnosis of fluoride poisoning or fluoride toxicity on the medical evidence before me.
I do not reject Dr K’s opinion merely because he was engaged on behalf of Workcover SA. I note Dr K states that he has prepared his report in accordance with the instructions applicable to Expert reports in the Uniform Civil Rules 2020 (SA). I find the opinions he has expressed are measured and reasonable on the observations he has made. I note that when invited to express an opinion on diagnosis, Dr K expressly declined to diagnose fluoride toxicity, regarding such a cause of LBHS’s symptoms as unlikely, although possible.
Contrary to LBHS’s contention, I do not accept that Dr D has diagnosed fluoride toxicity. Dr D appeared to be more open to the diagnosis of fluoride poisoning, but summarised his opinion by expressing difficulty in drawing a relationship between the symptoms LBHS was presenting. However, in circumstances where the instructions to Dr D in preparing the report was to diagnose the injuries LBHS was suffering from, I consider that Dr D’s remarks do not amount to a diagnosis of that condition.
In light of the opinions of the two Occupational Physicians in this regard, I do not accept the references in the chronic disease management plan (which appears to be a template document generated from clinical notes) to fluoride poisoning to amount to evidence of diagnosis, particularly when it is not stated in correspondence from the same doctor specifically outlining LBHS’s medical history. I do not consider that LBHS’s counsellor or physiotherapist are qualified to diagnose fluoride poisoning, and interpret their remarks as documenting the history they have been given by LBHS in the course of addressing symptoms that fall within their respective areas of expertise.
Dr L’s remarks in his letter of 10 July 2024 are inconsistent with the opinions expressed by the Occupational Physicians. If Dr L was referring to those reports in his letter, he is mistaken in interpreting either of those reports as amounting to a diagnosis of chronic fluoride toxicity when they simply do not. If another specialist medical practitioner has made such a diagnosis with a tolerable degree of clarity, then that evidence is not before me. I do not accept the evidence of Dr L’s letter of 10 July 2024 as evidence of a diagnosis of chronic fluoride toxicity in these circumstances.
I am not satisfied that there has been a diagnosis of fluoride poisoning, fluoride toxicity or fluorosis. As that medical condition is not the subject of a diagnosis, it is not amenable to attracting an impairment rating on the basis that I do not consider the condition to be diagnosed, reasonably treated and stabilised.
Lower back condition
While I am not satisfied that a medical condition of fluoride poisoning, fluoride toxicity or fluorosis has been diagnosed, I note that both occupational physicians identified and diagnosed conditions associated with LBHS’s lower back pain.
In this regard, Dr K described the condition as lower back pain, and indicated that examination suggested a sprain. Dr D also identified non-specific back pain.
Lower back pain is also referred to by Dr L in his correspondence and is referred to as ‘chronic back pain from poisoning’ in the chronic disease management report, although for the reasons expressed above I do not accept that attribution.
Medical imaging relied upon by Dr K is before the Tribunal[6] and reports that a minor annular disc bulge was identified, but I recognise that such observations are not necessarily clinically significant, and that information appears to have been available to the two occupational physicians who examined LBHS. In his evidence, LBHS told me that he did not think he has had further imaging to his back performed since the date of that report, which I note is in 2020.
[6] T10
The imaging report was addressed to Dr L. As mentioned above, Dr L has identified chronic back pain, and I note a further medical certificate to that effect dated 29 September 2020.
Dr K expressed the opinion that LBHS’s symptoms should be investigated individually, and indeed documents that he offered to investigate symptoms but LBHS had declined. This was put to LBHS in cross examination, and I understood LBHS to restate his concerns about Dr K’s impartiality as he had been engaged on behalf of Return To Work SA. Dr D declined to provide any advice in relation to treatment apart from education and psychological assessment.
There is no medical evidence before the Tribunal specifically addressing further medical investigation of LBHS’s lower back condition. I draw attention again to the remarks of Dr L (falling outside the qualification period) where Dr L states that LBHS has been advised by specialists that no further treatment is available. Again, if Dr L is referring to the reports of the two occupational physicians, in the context of non-specific lower back pain as a condition in itself, that observation is inaccurate. If Dr L’s remarks pertain to specific fluoride poisoning treatment, they are not relevant to the question of management of the lower back pain as a discrete problem, given I do not accept there is a clear diagnosis of fluoride poisoning.
There is no evidence of any further investigations or referrals for the opinion of a different medical specialty, and in his evidence LBHS said he had not been referred to or consulted an orthopaedic surgeon for an opinion.
I have taken into account the reports of Mr F, noting that the reports document LBHS’s response to questionnaires designed to assess physical function and document Mr F’s efforts through exercise therapy, and documenting LBHS’s capacity to undertake prescribed exercises.
Returning to the question of whether LBHS’s non-specific lower back pain has been diagnosed, reasonably treated and stabilised, I proceed on the basis that the identification of non-specific lower back pain amounts to a diagnosis for these purposes. However, concerns I have regarding the lack of specificity inherent in that terminology to amount to a diagnosis are a manifestation of the absence of further medical investigation directed towards treatment and stability.
In the absence of medical imaging post-dating 2020, the absence of referral to other medical specialties directed at investigating LBHS’s lower back pain as a discrete condition (given that was recommended by an Occupational Physician) and the rejection of the offer for Dr K to arrange those further investigations, I am not satisfied that the non-specific lower back pain has been reasonably treated or stabilised within the qualification period.
In relation to Dr L’s opinion expressed in the letter of support dated 10 July 2024 (falling well outside the qualification period in any event) I do not consider that the expressed assumption that the non-specific lower back pain is attributable to fluoride toxicity and therefore not amenable to further investigation or treatment is reasonable, when regard is had to the opinion of the occupational physicians, and Dr K specifically.
I therefore am not satisfied that LBHS’s condition of non-specific lower back pain is reasonably treated and stabilised, and it is not amenable to attracting an impairment rating.
Mental Health condition
Dr K does not identify mental health symptoms in his report. Dr D’s recommendation that LBHS undergo psychological assessment is not further elaborated upon and Dr D does not otherwise address LBHS’s mental health. No mental health condition is identified on the chronic disease management plan.
Mr F, physiotherapist, in his report dated 21 October 2023 refers to LBHS mentioning that he has crippling depression and should be referred to a psychologist or psychiatrist.
Dr L, in a letter of support dated 21 September 2023, states that ‘more recently [LBHS has] develops the symptoms of depression including suicidal ideation, which needs medication therapy and psychological referral. This correspondence does not identify what medication therapy has been commenced (if any) or offer further information about prognosis.
On 29 September 2023, Ms T (counsellor) refers to LBHS having a persistent and debilitating state of depression that has lasted for approximately one year, although I do not interpret that to refer to a diagnosis of a mental health condition being made a year previously, because no such condition appears on the chronic disease management report of 11 July 2023 or any correspondence from Dr L pre-dating 29 September 2023. I presume Ms T is referring to history provided to her by LBHS. Ms T does however mention that LBHS had agreed to consult with his doctor about the potential use of anti-depressant medication, from which I infer that despite Dr L identifying the need for medication therapy in his letter of 21 September 2023, had not actually commenced any such therapy.
Despite the limitations in the evidence, I accept that Dr L had diagnosed a condition of depression within the 13 week qualification period. However, I am not satisfied that the condition had been reasonably treated or stabilised within the period in circumstances where Dr L had identified the need for medication therapy but apparently not commenced it.

The evidence indicating that LBHS’s mental health condition was not reasonably treated and stabilised within the qualification period is reenforced by the opinion of Associate Professor L in a report dated 24 January 2024.[7] Professor L diagnoses a major depressive disorder based on the information provided to him, also making observations of LBHS’s mental state and mood. Professor L mentions a particular medication regime that LBHS has followed for the past 3 months, which may suggest that the medication therapy was commenced around October 2023, but Professor L makes significant adjustments to the medication regime, and continued psychotherapy.
[7] T20
In light of this evidence, I am not satisfied that LBHS’s mental health condition was reasonably treated and stabilised within the qualification period. Medication therapy and counselling appears to have been commenced for the first time only at the very end of that period, with psychiatric review not being undertaken until well outside the period. I note for completeness that the limited medical evidence before me in relation to LBHS’s mental health condition does not adequately address prognosis in any event.
As I am not satisfied LBHS’s mental health condition is reasonably treated and stabilised within the qualification period, the condition is not amenable to attract an impairment rating
CONCLUSION
It is an essential criterion for qualification for DSP that a person’s impairment is of 20 points or more under the Impairment Tables: paragraph 94(1)(b) of the Act. For the reasons set out above, while I accept LBHS has a number of medical conditions impacting on his wellbeing and ability to function, I am not satisfied that the conditions were diagnosed (in the case of fluoride toxicity) or reasonably treated and stabilised (in the case of lower back pain and major depression) at the date of claim or within 13 weeks thereafter. The conditions cannot therefore be assigned impairment points.
In those circumstances, it is not necessary to consider whether during the qualification period LBHS had a continuing inability to work within the meaning of paragraph 94(1)(c) of the Act.
I will affirm the decision under review.
For completeness, I confirm that I have examined an Occupational Therapy report completed 25 August 2024 that purports to assign 105 impairment points across 8 different tables. The report appears to proceed upon an acceptance of fluoride toxicity as the relevant diagnosis, and LBHS told me during the hearing that the Occupational Therapist did administer a number of tests and did not rely solely on what he had told her about the extent of his incapacity to function. Similarly, the respondent made submissions regarding LBHS’s apparent capacity to concentrate and function during the hearing, and how he had travelled to the tribunal premises for the purpose of the hearing, that were not consistent with the content of that report. The report is prepared well outside the qualification period, and in my view is in no way is informative about LBHS’s medical conditions or functional capacity within the qualification period. I would not have accepted the opinions offered in that report without requiring the Occupational Therapist to be available for cross examination as to how the report was prepared and the opinions expressed in the report formed. As I considered that the report was irrelevant as it did not address LBHS’s medical conditions or functional incapacity at the relevant time, I did not pursue that matter.
DECISION
The Tribunal affirms the decision under review.