Lucas and Secretary, Department of Social Services (Social services second review) - [2018] AATA 2563

Lucas and Secretary, Department of Social Services (Social services second review) [2018] AATA 2563 (31 July 2018)
Division:GENERAL DIVISION
File Number: 2018/1355
Re:Matthew Lucas
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:31 July 2018
Place:Brisbane

The decision under review is affirmed.
............................[sgd]............................................
Senior Member Theodore Tavoularis
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether conditions attracted 20 impairment points or more – epilepsy – post-traumatic stress disorder – chronic pain syndrome – sleep apnoea – left arm conditions – conditions were fully diagnosed – whether Applicant undertook reasonable treatment during the relevant period – conditions were not fully treated or stabilised – no impairment points can be attributed – decision under review affirmed
LEGISLATION
Social Security Act 1994 (Cth), ss 26, 94
Social Security (Administration) Act 1999 (Cth), ss 41, 42, cls 3, 4(1) Schedule 2 Part 2
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Newman and Secretary, Department of Family and Community Services [2002] AATA 917
Smalldon and Secretary, Department of Social Services [2015] AATA 2
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Theodore Tavoularis
31 July 2018

On 24 April 2017, Mr Matthew Lucas (“the Applicant”) lodged a claim for the Disability Support Pension (“the DSP”) listing his medical conditions as:[1]
oGrand Mal epilepsy;
oPost-traumatic stress disorder (PTSD);
oChronic pain syndrome;
oLimited use of left hand and arm; and
oSleep apnoea.
[1] Exhibit 6, T documents, T 10, pp 112-141.
The issue before the Tribunal is whether the Applicant qualified for DSP at the date of his claim (24 April 2017), or within 13 weeks thereafter, that being up until 24 July 2017 (“the Relevant Period”).
HISTORY OF THE MATTER
After he lodged his claim with Centrelink, but before it had been assessed, the Applicant sent the following documents to Centrelink:
oMLC insurance doctor’s report, dated 2 April 2014 by Dr Yadav;[2]
oTotal and permanent disability doctor’s statement by Dr Yadav, dated 29 January 2015;[3]
oPermanent incapacity claims by Dr Yadav, dated 2 June 2015 and Dr Thabani, dated 4 June 2015;[4] and
oMedical report by Dr Yadav, dated 12 May 2016.[5]
[2] Ibid, T 8, pp 90-103.
[3] Ibid, T 8, pp. 104-107.
[4] Ibid, T 8, pp 108-109.
[5] Ibid, T 8, pp 110.
The Applicant has also subsequently provided the following documents to Centrelink:
oFull patient summary, as at 17 May 2017;[6] and
oMedical certificate by Dr Qureshi, dated 5 June 2017.[7]
[6] Ibid, T 11, pp 142-143.
[7] Ibid, T 12, p 144.
On 21 June 2017, the Applicant attended a telephone assessment with a Job Capacity Assessor (“JCA”) who subsequently produced a report on 5 July 2017.[8] The JCA made the following findings:
·Epilepsy – Grand Mal (Tonic-Clonic) – the JCA found this condition to be verified by medical evidence, permanent and fully diagnosed, but not fully treated and stabilised. No impairment points were allocated to it.
·Psychological/psychiatric disorder – the JCA found this condition to be verified by medical evidence, permanent and fully diagnosed, but not fully treated and stabilised. No impairment points were allocated to it.
·Left wrist and rib fracture conditions – the JCA found this condition to be verified by medical evidence, permanent and fully diagnosed, but not fully treated and stabilised. No impairment points were allocated to it.
·Musculo-skeletal disorder – the JCA found this condition to be a temporary condition and that it should improve within the next two years. No impairment points were allocated to it.
·The Applicant was assessed as having a baseline work capacity as 8-14 hours per week, and a future work capacity within two years of intervention as 15-22 hours per week. The suitable work was deemed to be light semi-skilled duties, such as, for example, trades assistant – light duties.
[8] Ibid, T 13, pp 145-152.
The Applicant then provided further medical evidence regarding his various conditions. Found at T14 of the T Documents, that evidence comprises historical medical reports and letters from the period 2005-2010. Importantly, it does not speak to the Applicant’s condition during the Relevant Period.[9]
[9] Ibid, T 14, pp 153-203.
On 15 September 2017, Centrelink rejected the Applicant’s claim for the DSP on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.[10]
[10] Ibid, T 15, pp 204-205.
The Applicant sought review of that decision by an Authorised Review Officer (“ARO”), and provided further medical evidence, including:
oReferral letter from Dr Dance, dated 12 October 2017;[11]
oManagement plan by Dr Bruce, dated 16 October 2017;[12]
oVerification of medical conditions form by Dr Dance, dated 13 November 2017.[13]
[11] Ibid, T 16, p 206.
[12] Ibid, T 17, p 207.
[13] Ibid, T 18, pp 208-209.
On 23 November 2017, the ARO reviewed the decision of the JCA and made the following findings of fact:[14]
[14] Ibid, T Documents, T 19, p 211.
Findings of Fact
After careful consideration of your evidence, I have made these key findings:
oYou claimed DSP for medical conditions: Epilepsy – Grand Mal, Mental Health Condition – Adjustment Disorder with Depressed Mood and Fracture/Crush injury to your Left Wrist.
oYour medical conditions were considered to be fully diagnosed, but they were not assigned a DSP Impairment rating because of a determination they are not fully treated or stabilised.
oYour total DSP Impairment Rating is zero points.
oYou were assessed as having a baseline work capacity of 8 – 14 hours per week increasing to 15 – 22 hours per week within two years with medical intervention and assistance.
oYou do not have a continuing inability to work 15 hours per week or more because of your impairment.
oYou have not met a Program of Support requirement.
On 5 December 2017, the Applicant requested further review of the decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”).[15]
[15] Ibid, T 20, pp 216-217.
On 6 February 2018, the AAT1 affirmed the decision under review. AAT1 considered the following conditions:
oLeft wrist injury and persistent pain;
oGrand Mal Epilepsy; and
oAdjustment disorder with depressed mood.
The AAT1 assessed the Applicant as having a total impairment rating of nil points due to conditions which were fully diagnosed, but yet to be fully treated and stabilised. Due to its finding that the Applicant did not have an impairment rating of 20 points or higher, the AAT1 did not see a need for considering the issue of the Applicant’s continuing inability to work.
On 15 March 2018, the Applicant lodged an Application for Review of Decision with the Administrative Appeals Tribunal (“this Tribunal”).[16]
[16] Ibid, T 1, pp 1-2.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 24 April 2017). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[17] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 24 April 2017 and 24 July 2017.
[17] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (“Bobera”) at [34]:
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.
[my underlining]
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[18] The Tables are function based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[19] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[20]
[18] See s 26(1) of the Act.
[19] See s 5(2) of the Determination.
[20] See s 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[21] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[22]
[21] See s 6(3) of the Determination.
[22] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[23]
[23] See s 6(5) of the Determination.
A 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 two 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 two 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.[24]
[24] See s 6(6) of the Determination.
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[25]
[25] See s 6(7) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[26]
[26] See s 11(1) of the Determination.
Even where an applicant does meet the requirements for 20 impairment points to be given, they must meet the requirements in subsection 94(1)(c)(i) of the Act, namely that they have participated in a program of support if he does not have a severe impairment, and has a continuing inability to work.[27] In respect of this requirement, all the criteria in subsection 94(2) of the Act need to be satisfied.
[27] See s 94(1)(c)(i) of the Act.
ISSUES FOR THE TRIBUNAL
The issues that arose in this review were:
(a)whether the Applicant had one or more physical, intellectual or psychiatric impairments during the relevant period?
(b)whether alone or together those impairments cause a functional impact such that they can be rated 20 points or more under the Impairment Tables?
(c)Whether the Applicant has a severe impairment (that can be rated 20 impairment points) or participated in a program of support?
(d)if so, did he have a continuing inability to work?
For the reasons outlined below, I am of the view that the Applicant’s claimed conditions attract a total impairment rating of nil points due to conditions which were not fully diagnosed, treated and stabilised as at the date of his claim for DSP.
CONSIDERATION
Does the Applicant have a physical, intellectual or psychiatric impairment pursuant to subsection 94(1)(a) of the Act?
The Respondent has made a helpful concession with reference to s 94(1)(a) of the Act in that it accepts that the Applicant suffers from physical and psychiatric impairments and therefore satisfies s 94(1)(a) of the Act. That concession was appropriately made; the Applicant clearly suffers from a number of impairments. I will address each of the impairments in turn.
What impairment ratings do the Applicant’s impairments attract?
Grand Mal Epilepsy – Table 15 – Functions of consciousness
The Respondent helpfully – and in my view, correctly – accepts that the Applicant’s Grand Mal Epilepsy condition is fully diagnosed. Nevertheless, the Respondent is of the view that the condition is not fully treated and stabilised, and that no impairment points can be allocated to it. I think the overwhelming weight of medical evidence supports such a contention.
The medical practitioner who, for all intents and purposes, has acted as the Applicant’s local medical officer – Dr Paul Dance – while of the view that the condition is permanent, nevertheless makes it clear by his various referral letters to medical specialists that further treatment and/or medication for this condition is both imminent and warranted. For example:
oIn his referral letter of 12 October 2017 to the neurologist, Dr Bruce, Dr Dance made a certain observation about perhaps changing the Applicant’s medication for this condition. He told Dr Bruce “He [the Applicant] is currently taking Tegretol and this is indeed the only medicine he has taken for it. Several treating GPs have made suggestion [sic] he might need an alternative,”;[28]
[28] Ibid, T Documents, T 16, p 206.
oIn his medical certificate dated 13 November 2017,[29] provided for the benefit of the Respondent, Dr Dance observed that the Applicant’s condition of idiopathic generalised epilepsy is permanent and that – in accordance with the direction of the neurologist, Dr Bruce[30] – the Applicant’s treatment regime now included the medication known as Keppra, in addition to Tegretol;
[29] Ibid, T Documents, T 18, p 209.
[30] Ibid, T Documents, T 17, p 207 – in this letter, Dr Bruce changes the management plan of the Applicant such that the Applicant continues taking 400mg of Tegretol twice daily, but that a twice daily dose of 250mg of Keppra is added to that regime.
oDr Dance then wrote to both Dr Clarke (a pain management specialist and anaesthetist) and Dr Huntsman (a psychiatrist), on 21 December 2017,[31] and in terms of ongoing or necessary treatment, made the following observations:
[31] Ibid, T Documents, T 23, pp 224-225.
To Dr Clarke:
·         “Matthew suffers from Epilepsy, only recently controlled with the addition of Kepra [sic] to his long-standing Tegretol under Dr Iain Bruce,”;
·         “I met Matthew in Grafton in 2005. He recently tracked me down in Coffs to seek further help having found other doctors less tolerant of his rather disorganised and at times confrontational manner,”;
·         “Matthew has not seen a Pain specialist for assessment.”
To Dr Huntsman:
·         “Thank you for seeing Mr Matthew Lucas, for Psychiatric review. He last saw you in 2010. As you know he suffers from… poorly controlled Epilepsy until adding Keppra to his Tegretol under the guidance of physician Dr Iain Bruce.”
·         “I have also suggested he see Pain specialist Dr Shaun Clarke.”
·         “Your ongoing care is greatly appreciated.”
oIn a questionnaire dated 17 January 2018, completed for Basic Rights Queensland, Dr Dance was of the view that the Epilepsy condition was fully diagnosed and that no further specialist confirmation/testing was required. Dr Dance further observed that, “since starting new epilepsy treatment, no further grand mal seizures since Aug 2017.”[32]
[32] Ibid, T Documents, T 26, p 253.
Another medical practitioner local to the Applicant, namely, Dr Mohammad Qureshi, also thought that the Applicant’s Epilepsy condition had not been fully treated and stabilised. In his medical certificate, prepared for the benefit of the Respondent and dated 5 June 2017, Dr Qureshi’s prognosis was that the condition would affect the Applicant’s capacity to work or study for a period of at least 13-24 months.[33]
[33] Ibid, T Documents, T 12, p 144.
It was also noted by the JCA in the abovementioned report dated 5 July 2017, that apart from treatment via anticonvulsant medication (Tegretol), the Applicant’s epilepsy condition had not been reviewed by any medical specialist since 2006.
There seems little doubt that the Applicant’s epilepsy condition, although fully diagnosed, could not be said to be fully treated and stabilised until the addition of the Keppra medication to his treatment regime. This occurred in October 2017, some 3-4 months after the end of the relevant period. It is also clear that when Keppra was added to the Tegretol medication, the Applicant’s seizures ceased. As correctly noted by the Respondent, there is no evidence (1) suggestive of the Applicant being prescribed Keppra during the qualification period; or (2) that the addition of Keppra to the regime of medication was unlikely to result in significant functional improvement within two years.

It is therefore clear that the Applicant’s epilepsy condition was not fully treated or stabilised during the qualification period. Thus, no impairment rating can be allocated to it.
Adjustment disorder with depressed mood – Table 5 – Mental Health function
The Respondent accepts this condition is fully diagnosed, but contends it was not fully treated and stabilised during the relevant period such that any impairment rating can be allocated to it. I think this contention is borne out by the medical evidence.
It seems clear that Dr Dance thought the condition warranted further treatment to achieve the objective of stabilisation and that he held this thought at a time considerably later than the expiration of the relevant period. For example:
oWhile noting the condition to be “permanent” on 13 November 2017,[34] Dr Dance nevertheless referred the Applicant to Dr Huntsman for psychiatric review on 21 December 2017, some five months after the end of the relevant period. In this referral, Dr Dance notes that the Applicant last saw Dr Huntsman in 2010. Dr Dance clearly anticipates ongoing care and management by Dr Huntsman by telling him “Your ongoing care is greatly appreciated.”[35]
oIn a questionnaire completed for Basic Rights Queensland on 17 January 2018,[36] Dr Dance notes this condition was originally diagnosed in 2006 by Dr Huntsman. Further, in response to the specific question of “Have all reasonable treatments been undertaken for this condition, which are likely to result in significant functional improvement in the next two years?” [emphasis in the original], Dr Dance ticked the “No” box. He added that the Applicant was “Due for review in Feb [2018] with Psychiatrist. I do not consider he is optimally treated from a mental health perspective.” [My underlining]. Clearly, Dr Dance – some 6-7 months after the conclusion of the relevant period – considered that further treatment and management was required before the condition could be regarded as fully treated and stabilised.
[34] Ibid, T Documents, T 18, p 209.
[35] Ibid, T Documents, T 23, p 225.
[36] Ibid, T Documents, T 26, p
In the JCA report of 5 July 2017, the JCA noted that although the condition had been treated by antipsychotic medication (Seroquel) since February 2017 as part of the Applicant’s self-reported mental health care plan, such treatment had “…not yet completed.”[37]
[37] Ibid, T Documents, T 13, p 147.
From a historical perspective, it is also clear that a defined treatment and management plan was squarely within the contemplation of Dr Huntsman as early as November 2009. In his lengthy medicolegal report, dated 23 November 2009, Dr Huntsman opined as follows:
Further Treatment Required
In my opinion Mr Lucas requires fairy [sic] intensive therapy, utilising a combination of supportive and cognitive behaviour therapy. This should take place at least on a fortnightly basis. I would estimate he would require approximately 40 sessions with an appropriately qualified psychologist, at an average cost of $150-00 per session.
He should also be reviewed by a psychiatrist on a monthly to two monthly basis. I would estimate approximately 20 sessions at an average cost of $285 per session would be required.
It is important that Matthew and his therapist to establish a sound therapeutic alliance.[38]
[38] Ibid, T Documents, T 14, p 173.
It is notable that the above treatment regime was not completed prior to or during the relevant period. Indeed, the “sound therapeutic alliance” referred to by Dr Huntsman remains a work in progress or, at the very least, remained a work in progress well after the relevant period.
There seems little or no doubt that each of Dr Dance, Dr Qureshi and the JCA are of the view that the Applicant’s adjustment disorder with depressed mood remains live and unresolved. Clearly, this condition requires further management and control before it can be remotely regarded as fully treated and stabilised for present purposes. There can be no suggestion that Dr Huntsman’s recommended “sound therapeutic alliance” between the Applicant and relevant therapist has been followed and achieved either prior to, during or after the relevant period. Accordingly, I must find that this condition was neither fully diagnosed nor stabilised during the relevant period. It follows that no impairment points can be allocated to this condition.
Left wrist injury and persistent pain – Table 2 – Upper limb function
The Respondent accepts this condition is fully diagnosed, but contends it was not fully treated and stabilised during the relevant period such that any impairment rating can be allocated to it. I think this contention is also borne out by the medical evidence.
From a historical perspective, the orthopaedic surgeon, Dr Darrin Marshall treated the initial injury in 2006, which is now propounded as causing the Applicant’s chronic pain. Dr Marshall performed the following procedure on the Applicant on 18 September 2006: “…percutaneous pinning of his radial styloid, however, the ulna lunate fragment and ulna border of the radius had to be opened dorsally and Trimed ulna plates were used with K-wires.” Subsequent “X-rays show that is was a perfect reduction and the wrist was quite stable.”[39]
[39] Ibid, T Documents, T 14, p 155 – Report of Dr Darrin Marshall, orthopaedic surgeon, dated 20 September 2006.
Dr Marshall reviewed the Applicant postoperatively on 25 September 2006, and noted “The x-ray shows all the multiple fragments are sitting in excellent position… I will see Matthew at the six weeks mark following surgery, and we will check some new x-rays to see how things are going, and then we can start a more resisted exercise program.”[40]
[40] Ibid, T Documents, T 14, p 156– Report of Dr Darrin Marshall, orthopaedic surgeon, dated 25 September 2006.
On 8 November 2006, Dr Marshall reviewed the Applicant and noted the following, “I have reviewed Matthew following his distal radial fracture. Everything is looking good. The x-rays are great, and his range of motion is slowly improving. Matthew will continue a physiotherapy program for his wrist, and I will see him early in the New Year, and if everything has united well we will arrange to remove the plates for him.”[41]
[41] Ibid, T Documents, T 14, page 158 – Report of Dr Darrin Marshall, orthopaedic surgeon, dated 8 November 2006.
On 28 March 2007, Dr Marshall again reviewed the Applicant and noted these things: “I have reviewed Matthew today, and everything is looking good… I have explained to Matthew that he really needs to concentrate on getting the wrist going again, being able to make a fist and also to get his wrist range of motion better. I have told Matthew that there is not much more we can do for him now, and in about four weeks’ time he should be able to return to his duties, as the wrist should be strong enough for this.”[42]
[42] Ibid, T Documents, T 14, page 160 – Report of Dr Darrin Marshall, orthopaedic surgeon, dated 28 March 2007.
As part of an earlier worker’s compensation claim, the Applicant obtained a report from the specialist surgeon, Dr GA Miller. On 14 September 2006, the Applicant fell off a long stepladder when he was standing on the second-top rung and overbalanced, from a height of 3.5-4 metres when he was putting a drain on an internal air conditioning unit. He put his left hand out to break his fall. Dr Miller was of the view that ongoing treatment for the resulting injuries to the Applicant’s neck, left shoulder and left wrist were clearly warranted. He said:
He would benefit from ongoing physiotherapy to his neck, left shoulder and left wrist. I believe this should be done on a needs basis. I would estimate three sessions per year, each lasting two weeks with two treatments per week would be an appropriate estimate of his needs.[43]
[43] Ibid, T Documents, T 14, page 180.
The evolving nature of the medical opinion consequent upon the persistent pain reported by the Applicant as a result of this aspect of his claimed conditions clearly points to a requirement in the minds of the treating practitioners for referral of the Applicant to a pain management clinic. As early as November 2010, Dr Chris Oates (an approved medical specialist) in providing a medical assessment certificate providing his assessment of the degree of permanent impairment for the worker’s compensations commission, noted the Applicant “…is intending to go to a Pain management clinic in Brisbane, referred from his GP, Dr Dance, in Grafton.” In terms of present treatment, Dr Oates noted the Applicant’s medication but added, “He is awaiting referral to a pain management clinic.”[44]
[44] Ibid, T Documents, T 14, page 196.
As I understood the medical evidence, the Applicant did not consult with a pain specialist until approximately December 2017 (or perhaps later), when Dr Dance referred him to Dr Shaun Clarke, pain management specialist and anaesthetist. In his letter of referral to Dr Clarke, Dr Dance summarised the Applicant’s symptomatology relating to his upper left limb function and his self-reporting of persistent pain from that region and told Dr Clarke that “Matthew has not seen a pain specialist for assessment.”[45] It should be noted that this observation and referral by Dr Dance to Dr Clarke occurred some 4-5 months outside the relevant period.
[45] Ibid, T Documents, T 24, p 223.
Further, in the questionnaire he completed for Basic Rights Queensland, Dr Dance, in response to this question, “In your opinion, is the condition fully diagnosed?”, Dr Dance ticked the “No” box. In response to the question, “Have all reasonable treatments been undertaken for this condition, which are likely to result in significant functional improvement in the next two years?”, Dr Dance also ticked the “No” box. There can be no doubt about the views of Dr Dance in terms of necessary ongoing pain management for this particular condition propounded by the Applicant. The following appears in the abovementioned questionnaire:
Please outline for both, the treatments the patient has undertaken and any planned treatments and why you consider such treatments are likely/unlikely to result in significant functional improvement in the next 2 years:
Dr Dance responded as follows:
Yet to see Pain Specialist for treatment. Appt due in Mid-March [2018] with Dr Shaun Clark [sic]. Needs orthopaedic review also for left wrist injury – last seen 2014.[46]
[46] Ibid, T Documents, T 26, p 150.
To my mind, the medical evidence supports the contention that the Applicant’s condition was not fully treated or stabilised during the qualification period. The requirement of pain management has been squarely within the minds of medical practitioners since 2008-2010 and has only been brought to fruition by Dr Dance from December 2017 onwards. The Applicant’s consultation with Dr Clarke in March 2018 came some eight months after conclusion of the relevant period. Accordingly, this condition cannot be regarded as fully treated and stabilised during the relevant period and no impairment points can be allocated to it.
The Respondent refers to a couple of authorities addressing the adverse consequences resulting from an Applicant’s failure to undertake and complete a course of pain management. This seems especially to be the case where more than one medical practitioner has recommended a course of pain management. In those circumstances, it seems the Tribunal ought not to be satisfied that the requirements of the Act have been met.[47]
[47] See, e.g., Newman and Secretary, Department of Family and Community Servies [2002] AATA 917 per Member Carstairs at [31]-[32].
It would be inappropriate for the Tribunal to consider this condition to be permanent and/or fully diagnosed and stabilised until the Applicant has completed a course of pain management at a recognised pain clinic. As noted by the Tribunal in Smalldon and Secretary, Department of Social Services [2015] AATA 2 at [16]:
It is not unusual for persons who have applied for DSP to be referred to pain clinics, and as a rule, it is unusual for a finding that the conditions associated with that pain are not fully treated until after the pain management options have been fully explored.
…
Until Ms Smalldon has completed a pain management course, and a specialist for pain management verifies that her treatment has been optimised, the conditions causing her impairment cannot be said to be fully treated.
[my underlining]
The Applicant’s failure to undertake and complete a recommended course of pain management leads to the inevitable and unarguable conclusion that this condition was not fully treated or stabilised at the relevant period. Accordingly, no impairment points can be allocated to it.
Conclusion – impairment rating
In view of the above, I find that the Applicant’s claimed impairments, while fully diagnosed, where not fully treated and stabilised during the qualification period. No impairment points can be allocated to any of those claimed impairments. Accordingly, the Applicant does not satisfy section 94(1)(b) of the Act.
Summary
As the Applicant does not reach 20 points or more under the Tables, he does not satisfy the second of the requirements for DSP. He therefore does not qualify for DSP via this application.
Continuing Inability to Work?
Given that the Applicant does not reach 20 points or more at the relevant period, it is unnecessary to consider this question.
Some additional observations
I respectfully note two things:
a) I observe that the Applicant seems a sincere man with a not insignificant list of ailments; and
b) the Tribunal’s comments in Bobera that “…[i]f 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.” [48]
[48] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].
This Applicant has failed to reach 20 points or more via this application because his conditions were not fully treated or stabilised during the relevant period. However, it is to his credit that the Applicant has since he lodged this claim taken significant steps towards treating his conditions.
His primary contended conditions may now – some 12 months after the relevant period for this application – be capable of being regarded as fully treated and stabilised. The totality of his current symptomatology, if properly analysed, reported upon and progressed through a fresh application for DSP, could conceivably result in a more favourable impairment rating. This may or may not result in a residual issue of any continuing inability to work. It ultimately comes down to the Applicant’s capacity to address and endure the requirements of a fresh application.
CONCLUSION
The Applicant does not qualify for DSP because his claimed impairments did not attract any impairment points during the relevant period.
Accordingly, the decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

........................[sgd]................................................
Associate
Dated: 31 July 2018

Date of hearing: 13 July 2018

Applicant: By telephone

Advocate for the Respondent: Jasmine Forsyth

Solicitors for the Respondent: DHS

Date of hearing:	13 July 2018
Applicant:	By telephone
Advocate for the Respondent:	Jasmine Forsyth
Solicitors for the Respondent:	DHS