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

Mainprize and Secretary, Department of Social Services (Social services second review) [2019] AATA 4359 (25 October 2019)
Division:GENERAL DIVISION
File Number: 2019/1982
Re:Heather Mainprize
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:25 October 2019
Place:Brisbane

The Tribunal affirms the decision under review
........................[SGD].........................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
25 October 2019
INTRODUCTION

On 22 January 2018, Ms Heather Mainprize (the Applicant) lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T32, pages 208-240, DSP claim form.
The claim was rejected on 11 February 2018,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. The decision was reviewed by an Authorised Review Officer (ARO) who affirmed the decision to refuse the application for DSP on 23 August 2018.[3]
[2] Exhibit 1, T Documents, T54, pages 314-315, Letter: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T33, pages 241-247, ARO Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on 4 March 2019.[4]
[4] Exhibit 1, T Documents, T2, pages 9-13, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 23 March 2019.[5]
[5] Exhibit 1, T Documents, T1, pages 1-8, Application for Review.
On 2 October 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of her claim or within 13 weeks thereafter.
BACKGROUND
The Applicant was previously receiving the DSP since 22 January 2004[6] until a medical review of her DSP was undertaken by the Respondent.[7] Subsequently the Applicant’s DSP was cancelled on 3 May 2017[8] and this decision was affirmed by the SSCSD on 21 November 2017.[9]
[6]     Exhibit 2, Secretary’s Statement of Facts and Contentions, page 2, paragraph 5.
[7]     Exhibit 1, T Documents, T20, pages 152-165, Medical Report – Disability Support Pension Review.
[8]     Exhibit 1, T Documents, T51, page 276, Screen capture from the Respondent’s mainframe.
[9]     Exhibit 1, T Documents, T27, page 199, Decision of SSCSD.
The Applicant reapplied for DSP on 22 January 2018 and it is that claim that is before the Tribunal. On the Applicant’s DSP claim form[10] she lists the following disabilities, illnesses or injuries:[11]
oArthritis R Shoulder L Elbow.
oOsteo Both Feet.
oAchilies tendon damage L Heel.
oPlantars wart R Heel.
oSevere back pain.
oDepression.
oInsomnia.
[10] Exhibit 1, T Documents, T32, pages 208-240, DSP claim form.
[11] Exhibit 1, T Documents, T32, page 233, DSP claim form.
On 29 January 2018, an Assessor whose professional discipline is listed as physiotherapist undertook an assessment of the Applicant’s claim for DSP and associated medical evidence including a previous job capacity assessment. The Assessor provided an Assessment Services Recommendation for DSP report and considered that none of the Applicant’s conditions were fully treated and fully stabilised as at the date of claim.[12]
[12] Exhibit 1, T Documents, T35, pages 250-252, Assessment Services Recommendation for DSP medical eligibility.
On 11 February 2018, the Applicant’s claim for DSP was rejected on the basis that she did not have an impairment rating of 20 points or more.[13]
[13] Exhibit 1, T Documents, T54, pages 314-315, Letter: Rejection of DSP claim.
The Applicant provided additional information and sought review of this decision. On 20 August 2018, an Assessor whose professional discipline is listed as physiotherapist undertook an assessment of the Applicant’s claim for DSP in view of the new medical information. In a DSP, Medical Assessment Recommendation report the Assessor recommended that the Applicant’s claim be rejected based on a current and valid assessment, agreeing with the previous Assessment Services Recommendation for DSP report.[14]
[14] Exhibit 1, T Documents, T43, pages 261-262, DSP Medical Assessment Recommendation.
On 23 August 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[15]
·Your conditions of a spinal disorder, major depression, generalised anxiety disorder, asthma, high cholesterol and high blood pressure and chronic pain (in your back, shoulders, elbow, left heel and legs) are not accepted as being permanent as they have not been fully treated and stabilised.
·You do not have an impairment rating of 20 points or more.
[15] Exhibit 1, T Documents, T33, page 242, ARO Decision and Notes.
On 1 November 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[16] On 4 March 2019, the SSCSD affirmed the decision under review.[17]
[16] Exhibit 1, T Documents, T34, pages 248-249, Application to the SSCSD.
[17] Exhibit 1, T Documents, T2, pages 9-13, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[18]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[19] and
3.Does the Applicant have a continuing inability to work?[20]
[18]    Section 94(1)(a) of the Act.
[19]    Section 94(1)(b) of the Act.
[20]    Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[21] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[22] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[23]
[21]    Section 6(1) of the Determination.
[22]    Section 6(2) of the Determination.
[23]    Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: 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 2 years.[24]
[24] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[25]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[25] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must 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 planned in the next 2 years.[26]
[26] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[27]
(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.
[27] Section 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.[28]
[28] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[29] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[30] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[31]
[29]    Section 10 of the Determination.
[30]    Sections 10(3) and (4) of the Determination.
[31]    Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; 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.[32]
[32] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[33]
[33] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a 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.[34]
[34] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[35]
[35] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 22 January 2018, being the date the Applicant lodged her claim for DSP, and ending 13 weeks later on 23 April 2018. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[36] The Respondent considers the Applicant’s impairments include spinal,[37] chronic pain[38] and mental health conditions.[39]
[36]    Exhibit 2, Secretary’s Statement of Facts and Contentions, page 6, paragraph 39.
[37]    Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 7-10, paragraphs 42-56.
[38]    Exhibit 2, Secretary’s Statement of Facts and Contentions, pages10-11, paragraphs 57-61.
[39]    Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 11-12, paragraphs 62-66.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross-examination from the Respondent. I consider that the Applicant gave honest answers to the questions she was asked and was forthcoming in providing her evidence.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[40] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[41] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[42] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[43]
[40]    Section 6(3) of the Determination.
[41]    Section 6(4) of the Determination.
[42]    Section 6(2) of the Determination.
[43]    Section 8(1) of the Determination.
Spinal Condition
In a DSP Review, Medical Report, dated 28 February 2017, Dr Maria Mundattu, general practitioner, diagnosed the Applicant with lower back pain with a date of onset of 1997.[44]
[44] Exhibit 1, T Documents, T20, pages 156-165, Medical Report – Disability Support Pension Review completed by Dr Maria Mundattu.
In a medical referral to the Neurosurgery Outpatients at the Gold Coast University Hospital, dated 2 July 2018, Dr Shane Prodger, orthopaedic surgeon confirmed that the Applicant has had symptoms and signs of canal stenosis for the last 15 years.[45]
[45] Exhibit 1, T Documents, T41, page 259, Medical Report of Dr Prodger.
The Respondent contended that the Applicant’s spinal condition was fully diagnosed however was not fully treated and fully stabilised during the Relevant Period.[46]
[46] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 7, paragraphs 42-43.
The Respondent further contended that the Applicant had not fully engaged with the recommended treatment and as at 3 September 2018, further treatments for the condition were still being investigated.[47]
[47] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 8, paragraphs 45.
The Respondent relies on the following evidence:[48]
(a) On 28 February 2017, Dr Mundattu reported that commencing in 2012, the Applicant was being treated with Endep and occasional analgesics. It was also noted that she had been referred to a pain clinic in 2015 but as at that date was yet to attend (T20, pp158-165).
(b) On 3 March 2017, the JCA noted the Applicant had reported that she had previously attended the pain clinic on two occasions but was currently awaiting a call back (T21, p167).
(c) On 23 November 2017, physiotherapist Megan Boyd reported on the Applicant's attendance at a three-week Pain Management Program at the Lismore Multidisciplinary Pain Management Clinic. Ms Boyd noted the Applicant had missed three and a half days of the program and consequently "struggled with implementing some of the basic concepts of the program", which indicates she has failed to properly engage with the program. The report also notes follow-up dates. of 13 December 2017 and 14 March 2018 of which there is no evidence of the Applicant attending (T28, 200-201).
(d) On 2 July 2018, Dr Prodger referred the Applicant to the neurosurgery outpatients at Gold Coast University Hospital for surgical review (T41, p259).
(e) Relevantly, on 3 September 2018, Dr Prodger noted the Applicant was "waiting to see a Neurosurgeon at Gold Coast University Hospital and it is my understanding this is happening April 2019. This appointment will determine whether she is to have surgery" (T44, p263).
(f) At the AAT1 hearing, the Applicant gave evidence that she had decided not to pursue surgery on the basis the risks outweighed the potential benefits.
[48] Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 7-8, paragraph 44.

Further, the Respondent contended that a person’s own views as to the efficacy (or otherwise) of treatment is not a compelling reason to refuse treatment that has been recommended by treating practitioners. The Respondent contends that the Applicant did not await a consultation with the neurosurgeon to discuss the risks and benefits of the proposed surgery, and made a decision not to proceed with surgery that was uninformed by medical opinion. There was no objective consideration of the cost, availability, success rates, risk and potential functional improvement associated with the proposed surgery.[49]
[49] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 9, paragraph 51.
At the Hearing, the Applicant told the Tribunal that:
·For her back the only thing they can do is an operation to scrape out around her spinal cord. However, she is not having the operation regardless of what people say, she knows people who have had back operations and are now paralysed. She would prefer to put up with the pain.
·In relation to her attendance at the pain management course she said:
o   She had trouble with a man who said she must do all exercises but she could not do them.
o   When he made her do all of the exercises she could not get out of bed the next day.
o   She missed the last day of the course because she had her SSCSD hearing.
o   She failed the course because she missed 4 days, however she attended every day she could.
·She had not been back to the pain management course.
·She went to physiotherapy a few years back and did what they said and then she had trouble driving home. She could not get out of bed for the following few days.
·She has enough pain and is not going to cause more.
·She takes endone, panadeine forte, celebrex and diazepam.
On cross-examination, the Applicant:
·Confirmed that her discussion in relation to back surgery occurred with her specialist Dr Prodger, orthopaedic surgeon, in September 2018, and that he had said she needs to see a neurosurgeon in the Gold Coast Hospital. She said she drove up to the hospital and needed to take pain medication to undertake the drive and she waited two hours and was told that they would not operate as she could still get around without sticks or a wheelie walker. She had thought she had seen the neurosurgeon however she only saw a physiotherapist.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s spinal condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period. Medical investigations were ongoing and the Applicant did not fully engage with the recommended pain management programs, therefore she had not engaged with all reasonable treatment at the Relevant Period. Further, there is no evidence before the Tribunal that engagement with reasonable treatment is unlikely to result in significant functional improvement within 2 years.
Accordingly, the Applicant’s spinal condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
Chronic Pain Condition
In a medical report dated 15 June 2017, Dr Timothy Scholz, specialist anaesthetist pain medicine, diagnosed the Applicant as suffering from widespread mechanical pain including shoulder, elbow, back, legs and left heel.[50]
[50] Exhibit 1, T Documents, T22, page 173, Medical report of Dr Timothy Scholz.
Dr Scholz provided the following recommended management plan:[51]
[51]    Exhibit 1, T Documents, T22, page 174, Medical report of Dr Timothy Scholz.
With most chronic pain conditions, management ideally includes education, physical therapy, cognitive-behavioural therapy (CBT), pharmacotherapy and, where appropriate an intervention. With this in mind, I recommend the following management plan. I provided [the Applicant] with a written copy:
1.   [The Applicant] should read “Manage Your Pain” by Dr Nicholas et al. This book is very much a doing book than reading only. Active application of the strategies is the key. …….. It guides [the Applicant’s] self-management of her education, cognitive and physical reconditioning and thus serves to hep to overcome more than simply “pain” but addresses other issues which may be impinging on her quality of life.
2.   If [the Applicant] says she cannot work due to pain then I cannot dispute that as pain is a subjective experience. I would expect her to be able to return to work in time if she follows the strategies recommended in this plan.
3.   Long term opioid use is associated with increasing pain and disability in the long term. I therefore recommend a slow reduction of approximately 10-20% per month on average.
4.   Consider a trial of Allegron starting at 10 mg nocte. This medication has proven efficacy for both neuropathic pain and poor sleep. It can be slowly titrated (at approximately 2 week intervals) to a maximum of 100 mg nocte.
5.   If [the Applicant] feels she needs assistance with managing her depression then I suggest that you refer [the Applicant] to a psychologist such as Matthew Wagneer in ….. You may be able to establish a mental health care plan which will make visits more affordable.
6.   If [the Applicant] feels she needs assistance with physical rehabilitation, then I recommend that you refer her to an exercise physiologist such as Michael Woods at … You may be able to establish an enhanced primary care plan for [the Applicant] which would make her visits more affordable.
7.   I do recommend that [the Applicant] attends the Lismore Base Hospital Multidisciplinary Pain Clinic in August as scheduled.
8.   Return to see me in 3 months for review or earlier if she wishes.
The Respondent contended that that Applicant’s chronic pain condition was fully diagnosed however was not fully treated and fully stabilised during the Relevant Period.[52] The Respondent relies on the following evidence:[53]
[52]    Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 10-11, paragraphs 57-58.
[53]    Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 10-11, paragraph 58.
(a) On 15 June 2017, Dr Scholz recommended the Applicant read a specific book; consider a trial of Allegron; engage in consultations with a psychologist, exercise physiologist and the pain clinic at Lismore Hospital as scheduled; and reduce her opioid use (T22, p174). There is no evidence of the Applicant undertaking psychological consultations and the Applicant only partially engaged with the pain clinic. The Applicant states that she increased her opioid usage rather than reducing it as recommended.
(b) On 20 July 2017, general practitioner Dr Kyaw recommended the Applicant continue with treatment from Dr Scholz and the pain clinic (T24, p186).
(c) As noted above, on 23 November 2017 Ms Boyd reported on the Applicant's attendance at a three-week Pain Management Program at the Lismore Multidisciplinary Pain Management Clinic. Ms Boyd noted:
i.     the Applicant had missed three and a half days of the program and consequently "struggled with implementing some of the basic concepts of the program", which indicates she has failed to properly engage with the program;
ii.     "if her results are an accurate reflection of her function, [the Applicant] would benefit from immediate referral to a psychiatrist and a clinical psychologist under a mental health care plan...", indicating psychiatric/psychological treatment would be beneficial;
iii.    the Applicant is currently taking Lyrica and Nortriptyline and the occasional Endone but that "she should continue to wean and cease this medication";
iv. scheduled follow-up dates of 13 December 2017 and 14 March 2018 of which there is no evidence of the Applicant attending (T28, 200-201).
(d) In a referral to psychiatrist Dr Goldstein dated 24 November 2017, Dr Aye notes the Applicant continues to take Endone when necessary with the last script also dated 24 November 2017 (T29, p202).
(e) On 14 December 2017, Dr Goldstein assessed the Applicant's mental health conditions only, providing psychoeducation but specifically recommended that she continue to be manage by the chronic pain team and seek treatment from a psychologist (T30, pp 203-206).
The Respondent contended that the Applicant had not undertaken reasonable treatment for her chronic pain condition including psychological treatment and appropriate engagement with a chronic pain management clinic, and as such the condition was not fully treated and fully stabilised during the Relevant Period.[54]
[54] Exhibit 2, Secretary’s Statement of Facts and Contentions, page 11, paragraph 59.
At the Hearing, the Applicant told the Tribunal:
·She just takes medication for her chronic pain.
·She uses a massage mat on her bed or in a chair to help.
·She can do one load of washing and put it on the line however, it may stay there for a couple of days because of her pain.
·Dr Scholz said to do exercises and go to pain management clinic.
·In relation to the pain management course, she said:
o She was told that she had to stop all medication during the 3 weeks of the course. After the first day she went to her general practitioner to ask why she should stop taking her medication. She said her general practitioner told her to ignore that advice.
o She said she could not drive if she stopped taking her medication due to her pain.
On cross-examination, the Applicant told the Tribunal that:
·She had only seen Dr Scholz once and he had said to read a book and sent a report back to her general practitioner.
·When asked why she did not go back and see him in 3 months as he requested, she said she did not realise she was meant to go back.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s chronic pain condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period. The Applicant did not fully engage with the recommended pain management programs or recommended psychological treatment, nor is there any evidence in relation to the Applicant’s engagement in decreasing her medication. Therefore, she had not engaged with all reasonable treatment at the Relevant Period. Further, there is no evidence before the Tribunal that engagement with reasonable treatment is unlikely to result in significant functional improvement within 2 years.
Accordingly, the Applicant’s chronic pain condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
Mental Health Condition
On 26 July 2017, Dr Mundattu put in place a GP Mental Health Care (MHC) Plan and referred the Applicant to Mr Neil Dark, registered psychologist, for cognitive behavioural therapy for her ongoing depression.[55]
[55] Exhibit 1, T Documents, T25, pages 193-197, Medical referral from Dr Maria Mundattu to Mr Neil Dark with attached Mental Health Treatment Plan.
In a report dated 14 December 2017, Dr James Goldstein, consultant psychiatrist, diagnosed the Applicant with major depression and generalised anxiety disorder.[56] Dr Goldstein provided:[57]
[56] Exhibit 1, T Documents, T30, pages 203-206, Medical report of Dr James Goldstein.
[57] Exhibit 1, T Documents, T30, pages 205-206, Medical report of Dr James Goldstein.
I recommend the following plan.
1.I provided psychoeducation around sleep hygiene, pain, grief, and her current mental state.
2.I have recommended she use her Circadin regularly for a few weeks or months to try and get her sleep somewhat improved, in conjunction with an approved sleep hygiene programme.
3.She should increase her Nortriptyline to 50mg at night. This can be done in stages, increased to 40mg initially and when her current supply runs out this can go to 50mg. She should have her ECG checked to ensure there is no QT prolongation given her cardiovascular risk factors.
4.I recommend she is referred to a Mental Health Care Plan Psychologist, perhaps a different Psychologist given her lack of engagement with the previous one. Particularly I think it is important to focus on grief, anxiety, and Mindfulness strategies.
5.I note she reports she snores at night as well as having insomnia. She would benefit from being referred for an assessment for obstructive sleep apnoea.
6.I recommend she continues to be managed by the Chronic Pain Team.
7.I recommend some gentle exercise as tolerated by pain in order to improve her overall functioning and mobility.
In Centrelink medical certificates, dated 27 March 2018[58] and 29 May 2018,[59] Dr Aung Aye, general practitioner, diagnosed a flare up of anxiety symptoms with treatment as follow up with her MHC Plan and referral.
[58] Exhibit 1, T Documents, T38, page 255, Medical certificate of Dr Aung Aye.
[59] Exhibit 1, T Documents, T39, page 256, Medical certificate of Dr Aung Aye.
The Respondent contended that the Applicant’s mental health conditions were fully diagnosed during the Relevant Period.[60]
[60] Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 11-12, paragraph 62.
The Respondent further contended that the Applicant’s mental health conditions were not fully treated and fully stabilised during the Relevant Period on the basis that:
(a)there is no evidence before the Tribunal that indicates the Applicant consulted with Mr Dark;
(b)the Applicant has not undertaken the recommended psychological intervention; and
(c)the Applicant has only partially engaged with chronic pain clinic.[61]
[61] Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 11-12, paragraphs 63-64.
At the Hearing, the Applicant told the Tribunal that:
·She had gone to a counsellor and all he did was look at his watch, he did not help.
·She was then referred to a lady and she spoke to her on the phone and she then refused to give her an appointment.
·Her daughter and best friend had turned on her and it was all just too much.
·As a result, she has just talked to a friend and has not seen anyone else.
·The increased dose of endep helps her to sleep and with her depression.
·She has taken in a boarder which helps financially and he helps her do the things she cannot do.
On cross-examination, the Applicant:
·Confirmed that during the Relevant Period she had not seen a registered psychologist, she said she saw a counsellor who did not give her a report.
·Confirmed that Dr Goldstein had recommended that she see a psychologist and continue with the pain clinic, however she did not, she just saw the counsellor and she tried to make an appointment with a psychologist, however they would not treat her.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s mental health conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period. The evidence is clear that the Applicant has not engaged with recommended treatment for her mental health conditions during the Relevant Period and as such has not undertaken reasonable treatment for these conditions. Further, there is no evidence before the Tribunal that engagement with reasonable treatment is unlikely to result in significant functional improvement within 2 years.
Accordingly, the Applicant’s mental health conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Continuing Inability to Work
As I have found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s spinal, chronic pain and mental health conditions were fully diagnosed, but were not fully treated and fully stabilised during the Relevant Period. Therefore, the conditions cannot be considered permanent for the purposes of applying the Impairment Tables. I am unable to assign impairment points for these conditions.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...............[SGD]..............................
Associate
Dated: 25 October 2019

Date of Hearing: 2 October 2019

Applicant: By phone

Advocate for the Respondent: Mr Chris Murphy

Solicitors for the Respondent: Department of Human Services

[2019] AATA 4359

25 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Natural Justice

Procedural Fairness

Appeal

Date of Hearing:	2 October 2019
Applicant:	By phone
Advocate for the Respondent:	Mr Chris Murphy
Solicitors for the Respondent:	Department of Human Services