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

Markus and Secretary, Department of Social Services (Social services second review) [2019] AATA 4308 (23 October 2019)
Division:GENERAL DIVISION
File Number: 2019/0045
Re:Linda Markus
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, Member

Date:23 October 2019
Place:Perth

The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Brigadier AG Warner, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant’s impairments were fully diagnosed, treated and stabilised – whether Applicant’s impairments attract 20 points under Impairment Tables – Applicant’s impairments do not attract 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth) – Schedule 2
CASES

Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services, version 1.258 – Instruction 3.6.3.05
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – Impairment Table 4
REASONS FOR DECISION
Brigadier AG Warner, Member
23 October 2019
INTRODUCTION

Ms Markus seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), made on 30 October 2018, to affirm the decision of an authorised review officer (ARO) of the Department of Human Services

(the Department) to reject Ms Markus’ claim for disability support pension (DSP) lodged on 27 October 2017.
A hearing was conducted on 4 September 2019. Ms Markus attended the hearing, was self-represented and gave evidence.
Mr K Defranciscis represented the Respondent.
BACKGROUND
Ms Markus was 62 years old when she made a claim for DSP on 27 October 2017 (T58/190-219). Ms Markus’ medical conditions recorded in her claim for DSP are recorded as (T58/215):
L/4/4 disc prolapse Wallis implant. Sacroiliac Joint strain left and right. Left & right shoulder surgeries unsessful [sic]. Disc degeneration neck. Cronic [sic] knee pain. Arthritis. Nerve damage. Lower back. Cronic [sic] depression.
The Respondent summarises Ms Markus’ medical conditions as (R1/2):
discectomy and Wallis lumbar stabiliser (lumbar spine condition), chronic neck pain (cervical spine condition), osteoarthritis of the knees, major depressive disorder, anxiety and somatic symptoms disorder (psychological condition), shoulder and upper arm disorder (upper limb condition) and thyroid cancer. (Original emphasis.)
On 8 April 2018, the Department rejected Ms Markus’ claim for DSP on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables (T65/255).
Ms Markus sought review of the rejection decision and on 2 August 2018, an ARO from the Department affirmed the decision to reject Ms Markus’ claim for DSP on the basis that:
·Ms Markus’ “spinal disorder is considered fully diagnosed, treated and stabilised, and has been assigned an impairment rating of 10 Points.”
·Ms Markus’ “condition of depression and anxiety is considered fully diagnosed, but not fully treated and stabilised.”
·As Ms Markus does “not have an impairment rating of 20 Points or more you
[Ms Markus] do not qualify for Disability Support Pension.” (T65/255-260).
On 10 August 2018, Ms Markus applied for first review by the AAT1 (T2/4). On 30 October 2018, the AAT1 affirmed the decision to reject the claim for DSP. The AAT1 found that:
·Ms Markus’ lumbar and cervical spine conditions were permanent in that they were fully diagnosed, treated and stabilised, and the resulting impairment could be assigned an impairment rating of 10 points under Impairment Table 4 of the Impairment Tables;
·Ms Markus’ depression and anxiety were not permanent in that they were not fully treated and stabilised, and therefore no impairment rating could be assigned to any resulting impairment;
·There was insufficient evidence to determine whether Ms Markus’ upper limb and knee conditions were fully diagnosed, treated and stabilised, and no impairment rating could be assigned to the resulting impairments; and
·Ms Markus did not have a total impairment rating of 20 points or more (T2/3-11).
On 20 December 2018, Ms Markus applied for second review by this Tribunal. Ms Markus claims that the decision under review is wrong for the following reason:
I feel the department doesn’t understand the cronic [sic] pain I am in for the last 7. yrs. as per reports sent. I am unable to attend any social activities or work at all.

I am in constant pain every day and need to lay down at regular intervils [sic] through the day due to pain my neck-back-shoulders-knees-headaches. I am constantly depressed and feel I hav [sic] no purpose in life. I don’t drive far as my Dr and Supermarket is less than 2k/ms. I have tried online shopping however the quality of food is not good. I do small shops a few times a week. I have now employed a house cleaner for the bigger cleaning work… (T1/1-2).
ISSUE
The issue in this matter is whether Ms Markus was qualified for DSP on the day she lodged her claim, 27 October 2017 or within 13 weeks thereafter. This requires consideration of whether the requirements set out in s 94 of the Social Security Act 1991 (Cth) (the Act) are met; in particular:
·whether Ms Markus had any physical, intellectual or psychiatric impairments;
·whether Ms Markus’ impairment(s) rated 20 points or more under the Impairment Tables; and
·whether Ms Markus had a continuing inability to work.
LEGISLATION AND POLICY
The relevant legislation is contained in:
·the Act;
·the Social Security (Administration) Act 1999 (Cth) (the Administration Act); and
·the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).
Relevant policy is contained in the Guide to Social Security Law (the Guide). Although policy is not binding, to ensure consistency in decision making the Tribunal will normally follow the relevant policy unless there are cogent reasons for departing from it in a particular case (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979)

2 ALD 634).
Qualification period
Schedule 2, Part 2, Clause 4 of the Administration Act provides:
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In the case of Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447 Deputy President Handley made the following relevant observations regarding the qualification period:
31.In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
32.This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.

Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period,

“Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
33.The language in clauses 6(5) and (6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example,

the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years” (emphasis added).

While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine.

The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
Qualification criteria for DSP
Section 94 of the Act details the qualification criteria for DSP and provides relevantly as follows:
(1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and ...
The qualification criteria set out in s 94(1) of the Act are conjunctive, and each element must be satisfied before a person can be accepted to be qualified for DSP. As noted in the Guide to Social Security Law, at Instruction 3.6.3.05:
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria.

When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Note:
For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance.

Achieving an impairment rating of least [sic] 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied. Achieving this rating does not mean the person will be unable to do any work of at least 15 hours per week in the next 2 years, either. What it does mean is that the person’s impairment may have a significant functional impact in many work situations but depending on the person’s individual circumstances, coping mechanisms and reasonable adjustments,

that person may still be able to do work.
(Original emphasis.)
Section 94(1)(a) - a physical, intellectual or psychiatric impairment
The Respondent accepts that during the qualification period, Ms Markus suffered from impairments due to her various conditions and therefore satisfies s 94(1)(a) of the Act at the date of claim (Exhibit R1, para 23).
Section 94(1)(b) - a rating of 20 points or more under the Impairment Tables
The Impairment 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 impairments and not to assess conditions.
Paragraph 3 of the Impairment Tables defines “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
The Impairment Tables contain “Part 2 - Rules for applying the Impairment Tables” which must be satisfied before an impairment rating can be assigned (T3/130-36).
Subparagraph 6(3) of the Impairment Tables provides that an impairment rating can only be assigned for an “impairment” that arises from a condition that is “permanent”,

and “permanent” is defined in subparagraph 6(4) of the Impairment Tables to have a specific meaning for the purposes of subparagraph 6(3). Subparagraph 6(4) provides that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(c)the condition has been fully stabilised; and
…
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Subparagraph 6(5) of the Impairment Tables provides that, in determining whether a condition is “fully diagnosed” and “fully” treated for the purposes of subparagraphs 6(4)(a) and (b), the following must be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Subparagraph 6(6) of the Impairment Tables states that 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 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.
When applying the Impairment Tables, the impairment must be assessed on the basis of what the person can, or could do. Assessment must not be made on the basis of what the person chooses to do or what others do for them (subparagraph 6(1) of the Impairment Tables).
EVIDENCE
The Tribunal had before it the following evidence:
·The “T Documents” (T1-T75, pp1-301);
·The “Supplementary T Documents” (ST1-ST4, pp1-8);
·Physiotherapy/Medical reports of various dates (Exhibit A1);
·Physiotherapy report of David Barton dated 13 March 2019 (Exhibit A2);
·Letter by Dr Stephen Proud, Psychiatrist, dated 12 December 2018 (Exhibit A3);
·Letter by David Barton, Physiotherapist, dated 17 October 2018 (Exhibit A4);
·Secretary’s Statement of Issues, Facts and Contentions dated 5 August 2019 (Exhibit R1); and
·The oral evidence of the Applicant.
CONSIDERATION
Ms Markus lodged her claim for DSP on 27 October 2017 (T58/190-219) and her claim must be assessed based on her medical conditions as at the date of claim or within

13 weeks of that time. The Respondent contends that the qualification period is

27 October 2017 to 26 January 2018
(the qualification period) (Exhibit R1, para 16). The Tribunal agrees.
In reference to the importance of the qualification period, the Respondent cites the case of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], in which the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period (Exhibit R1, para 19). The Respondent further submits that if Ms Markus’ circumstances have changed subsequent to the qualification period, a fresh DSP claim may be appropriate (Exhibit R1, para 20).
The Respondent contends that Ms Markus did not qualify for DSP during the qualification period because:
·Ms Markus did not have a total impairment rating of 20 points or more under the Impairment Tables;
·Ms Markus did not have a “severe impairment” and did not satisfy the requirement to have “actively participated” in a program of support; and
·Ms Markus did not have a continuing inability to work (Exhibit R1, para 10).
At the outset, the Tribunal reviewed the decisions of the ARO (T65/255-260) and AAT1 (T2/3-11). It seems to the Tribunal that these reviews were conducted thoroughly and with due regard to the evidence. The Tribunal notes that both the ARO and AAT1 at first review determined that Ms Markus’ impairments attracted 10 points under the Impairment Tables. However, the Tribunal’s review is de novo, and this allows the Tribunal to reconsider the application according to the law, the policy and the facts. The Tribunal’s consideration is detailed in the paragraphs below.
Assessment of impairments under the Impairment Tables
During the hearing Ms Markus demonstrated some discomfort and on a number of instances reacted to what she described as a sharp stabbing pain that she sometimes experienced.
Ms Markus told the Tribunal that she lives in a lifestyle village but took part in very few activities. She said that her conditions had worsened recently and that she suffers from pain every day. She said that she rarely goes out other than to walk her dog or do shopping. She cannot do her housework to the standard that it should be done and her granddaughter now has a driver’s licence and provides assistance once a week.

Ms Markus said that as a result of her conditions and to assist with normal activities, she had some alterations to her unit, wore her hair short to make washing her hair easier and wore tight clothes to reduce certain nerve pain.
In response to questions regarding her circumstances and activities as at the qualification period, Ms Markus told the Tribunal that she drove about two kilometres to the shops and used a trolley to do her shopping, watched TV using a recliner chair and a curved pillow for support, and used a computer but only for banking and emails. She said that three to five times a week she walked the short distance to the village pool and completed some exercises before having a short shower and walking home. Ms Markus disputed that in 2017 she could walk her dog for two hours (see para [36] below).
Lumbar spine condition
The Respondent accepts that Ms Markus’ lumbar spine condition was fully diagnosed, treated and stabilised (FDTS) during the qualification period and the resulting impairment can therefore be rated under Impairment Table 4 of the Impairment Tables (Exhibit R1, para 32). Impairment Table 4 is used where a person has a condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning their back, trunk or neck.
In a WorkCover NSW certificate of capacity dated 17 October 2016, Dr Ken Barbour, General Practitioner, records that Ms Markus has “minimal” lifting/carrying capacity, short sitting and standing tolerance, “minimal” pushing/pulling/bending/twisting/squatting ability, and “OK” driving ability (T48/165-167).
In a WorkCover NSW certificate of capacity dated 28 April 2017, Dr Danielle Clark, General Practitioner, records that Ms Markus has “minimal” lifting/carrying capacity,

a reduced sitting tolerance of less than 15 minutes, standing tolerance of less than 10 minutes, minimal pushing/pulling/bending/twisting/squatting ability, and the ability to drive short distances only (T56/184-186).
In a further WorkCover NSW certificate of capacity dated 23 October 2017, Dr Ken Barbour records that Ms Markus has “minimal” pushing/pulling/bending/twisting/squatting ability, minimal lifting/carrying capacity, a sitting tolerance of less than 15 minutes,

a standing tolerance of less than 10 minutes, and the ability to drive short distances only (T59/220-222).

In a report dated 26 October 2017 (T60/223-231), Dr Melissa Harrison, Psychologist, records that Ms Markus reported that she is able to sit for a maximum of 10 minutes,

and is able to drive for up to 30 minutes at a time, before needing to reposition herself.

Ms Markus further reported that everything involving bending is difficult (e.g. changing the beds, bending down for the washing), she is unable to lift her left arm above shoulder height, she has adapted activities to ensure they can be completed (e.g. cleans the shower while she is in it) and that she struggles with the bigger intermittent tasks

(e.g. washing the car, washing the windows, turning the mattresses). Ms Markus reported that she goes to the pool every two to three days weekly, sometimes goes for a two hour walk with her dog, and sometimes goes for a wander downtown (T60/225-226).
In a medical certificate dated 21 December 2018, Dr Barbour reports that Ms Markus’ condition has progressed since 1 August 2017 and that she experiences pain with prolonged sitting over 15-20 minutes despite analgesics (T67/262).
The Job Capacity Assessment (JCA) report dated 29 March 2018 records that Ms Markus reported that she was unable to reliably bend to knee height, could sit for approximately 30 minutes, stand approximately 10 minutes, had varied tolerances for driving (sometimes less than 30 minutes) and was unable to sustain two handed overhead activities. The report concluded that there is a moderate to severe functional impact on activities involving spinal function and recommended 10 impairment points under Impairment Table 4 (T63/241).
In oral testimony before the AAT1, Ms Markus said that she:
·could sit for 20 minutes;
·shops every few days and ensures she has a number of lightly packed shopping bags that she can pack and unpack;
·uses a device to pick up items from floor height but was able to pick up items from a table. She could bend to coffee table height however this causes pain;
·she can spend 10-15 minutes on her computer doing banking and checking emails; and
·she uses her car mirrors to assist with driving and has a swivel seat in her car to allow easier entry and exit (T2/8).
Before the Tribunal, Ms Markus said that her conditions had worsened recently, but that at the qualification period she could walk for half an hour, drive to the local shops, sit in a car for half an hour under sufferance, bend to take items off a table, remove items from her freezer at hip height, but was unable to lift items off the floor or from a coffee table.
In a report dated 22 May 2019, Dr Barbour records that Ms Markus has several assistive technologies including a grab stick to help her avoid bending over and a swivel seat in her car to enable her to turn to look out for traffic from behind (ST4/8). The Respondent contends that this information is:
inconsistent with the Applicant’s evidence to the AAT1 that she uses the swivel chair to allow easier exit and entry to her vehicle, that she uses a device to pick up items from floor height and that she is able to bend to coffee table height and can bend forward to pick up a light object from a desk or table (Exhibit R1, para 37).
The Tribunal agrees, and has greater regard to the cumulative evidence contemporaneous with the qualification period, including the 2017 reports of Doctors Clark and Barbour, the JCA report and Ms Markus’ oral evidence to the AAT1 and this Tribunal.
Having regard to all the relevant evidence, the Tribunal finds that Ms Markus satisfies the 10 point descriptors for moderate functional impact under Impairment Table 4 (T3/46). This is because she is able to sit in or drive a car for at least 30 minutes, and is unable to bend forward to pick up a light object placed at knee height (descriptor 10 (1) (c)).
The Respondent contends, and the Tribunal agrees that:
35. … on the basis of the available evidence, the Applicant does not meet the requirements for a severe impairment rating under Table 4; in particular:
35.1the medical evidence contemporaneous to the qualification period indicates that the Applicant can remain seated for at least 10 minutes (T56/184-186; T59/220-222), and could drive for 30 minutes (T60/223-231). The Applicant self-reported to the AAT1 that she is able to sit for 20 minutes (T2/8). Descriptor (d) is not met;
35.2the medical evidence confirms that while the Applicant has difficulty bending (T56/184-186; T59/220-222), she confirmed to the AAT1 that she could bend forward to coffee table height (but only once) and was able to pick up items from a table (T2/8). The report of Dr Harrison, dated 26 October 2017, notes that the Applicant is able to change the beds and bend down for washing, and is able to clean the shower, albeit these tasks are completed with difficulty (T60/223-231). Descriptor (c) is not met (Exhibit R1, para 35).
The Tribunal notes that the activities detailed in descriptors 35.1 and 35.2, overhead activities and turning the head, relate to cervical spine function and are not relevant to an assessment of the functional impact of Ms Markus’ lumbar spine condition.
Cervical spine condition
The Respondent accepts that Ms Markus’ cervical spine condition was fully diagnosed as at the qualification period. The Respondent further contends that there is insufficient evidence to determine whether Ms Markus’ cervical spine condition was fully treated and stabilised during the qualification period and accordingly, under the Part 2 Rules of the Impairment Tables (the Rules), an impairment rating cannot be assigned to any impairment arising from this condition (Exhibit R1, para 39).
In a report dated 31 May 2011, following an assessment of Ms Markus’ neck condition,

Dr Robert Kuru, Spinal and Orthopaedic Surgeon, records that Ms Markus reported that she has had no specific treatment for her neck beyond intermittent massages which she finds helpful, that she has not been engaged in a flexibility based exercise program and does not take any medications for her neck. Dr Kuru recorded that he discussed with

Ms Markus review by a physiotherapist with a view to getting her on to an isometric exercise programme. Dr Kuru advised that use of simple analgesics was appropriate and he opined that Ms Markus should be reviewed every six months clinically to assess for signs of myelopathy (T34/140).
In a DSP Medical Report completed on 24 April 2012, Dr Diana Bradbury, General Practitioner, records a symptom of constant neck pain and notes that the cervical spine pain had been treated with medication and physio. However there are no details of the medication prescribed, the provider or duration of any physiotherapy treatment,

or Ms Markus’ response to any physiotherapy treatment undertaken (T39/145-152).
Reports by Dr Frank Machart, Orthopaedic Surgeon, dated 13 December 2016 and

19 December 2016 make no reference to a cervical spine condition or any current symptoms (T51/172-176; T52/177-179).
In a report dated 17 October 2018, David Barton, Physiotherapist, advises Ms Markus’ General Practitioner that Ms Markus commenced her course of physiotherapy on

17 October 2018 (The Tribunal notes that this start date is eight months and 21 days after the end of the qualification period) after being referred by Dr Barbour, under a GP Management plan to assist with pain management. Mr Barton records that Ms Markus’ physiotherapy includes an exercise program for her posture and cervical spine and that she may be a candidate for the “RUBIX HEALTH Pain Management Course for 2019” (original emphasis) (ST1/1).
A further report by Mr Barton, dated 13 March 2019, confirms that Ms Markus has been a client of Busselton Physiotherapy since 17 October 2018. Mr Barton records that

Ms Markus is undergoing physiotherapy and awaiting neurosurgical specialist review of her cervical spine (ST3/5-6).
Before the Tribunal, Ms Markus confirmed that she started physiotherapy with Mr Barton in 2018 and that she was still on a waiting list to see a specialist for her neck (Transcript,

p 25).
The Tribunal accepts that there is evidence of Ms Markus’ cervical spine condition and its impact over a significant period of time. However, the evidence also indicates that

Ms Markus commenced physiotherapy treatment well after the end of the qualification period, and having been referred for neurosurgical specialist review of her cervical spine condition was still at the time of the present proceedings awaiting that review.

In these circumstances, the Tribunal finds that Ms Markus had not undertaken reasonable treatment for her cervical spine condition as at the qualification period and that, on this basis, the condition cannot be considered fully treated and stabilised for the purposes of this claim. It follows that impairment points cannot be assigned under the Impairment Tables.
Psychological condition
The Respondent accepts that Ms Markus’ psychological condition was fully diagnosed as at the qualification period, however, contends that this condition was not fully treated and stabilised during the qualification period as Ms Markus had not undertaken reasonable treatment at that time (Exhibit R1, para 45).
In a letter dated 6 November 2014, Dr Brian Suter, Clinical Psychologist, reported that

Ms Markus presented with both anxiety and depressive features and that he recommended a cognitive behaviour therapy (CBT) program to “focus on management of her mood and anxiety as well as provide her cognitive techniques to address her ruminatory tendencies and tendencies to catastrophize” (T45/161). There is no evidence that Ms Markus completed the recommended CBT program.
In a report dated 26 October 2017 (T60/223-231), Dr Melissa Harrison, consulting psychologist, records that:
a.Ms Markus’ symptoms were consistent with diagnoses of “Major Depressive Disorder (Severe) (Recurrent Episode)” and “Somatic Symptom Disorder
(With predominant pain) (Moderate)” (T60/227);
b.
in November 2016, Ms Markus’ General Practitioner attempted to transition her from escitalopram to an alternative antidepressant, however, Ms Markus decided to cease the antidepressant medication entirely and subsequently “crashed”.

Dr Harrison noted the referral by Dr Clarke indicated that Ms Markus had previously seen Ms Hayley King, Clinical Psychologist, four years ago, that

Ms Markus had experienced a relapse in her depression and would benefit from further intervention (T60/223-225);
c.Ms Markus reported recommencing escitalopram in February 2017. Dr Harrison noted that by the time of her second consultation on 18 July 2017, six months after recommencing escitalopram, Ms Markus reported definite improvement (T60/225);
d.
Dr Harrison recommended an initial course of six psychological treatment sessions, the first of which occurred on 18 July 2017. Ms Markus left the first session early and cancelled all future appointments. Dr Harrison noted that

Ms Markus subsequently re-attended on 31 August 2017 but did not wish to participate in recommended treatment, including monitoring, cognitive restructuring and mindfulness intervention (T60/223, 228-229); and
e.Dr Harrison concluded:
Ms Markus has not participated actively in intervention to date. Ms Markus has declined to participate in further recommended psychological intervention with the undersigned. Ms Markus’ current depressive experience, and current difficulties managing her pain, are unlikely to improve substantially in the absence of intervention, be this intervention medical, psychological or pharmacological (T60/229).
In a report dated 12 December 2018, Dr Stephen Proud, Psychiatrist, states that

Ms Markus’ “depression has reached maximal medical improvement” (ST2/2-3). However, this report is dated some six weeks after the AAT1 decision under review and approximately 11 months after the end of the qualification period and does not refer back to Ms Markus’ condition as at the qualification period. Accordingly, in these proceedings the Tribunal is unable to rely on Dr Proud’s report to determine that Ms Markus’ psychological condition was FDTS as at the qualification period. The Respondent contends that “the Tribunal ought prefer the evidence of Dr Harrison, who indicated that the Applicant’s functioning had improved on recommencing anti-depressants and was expected to further improve with continued psychological intervention” (Exhibit R1,

para 46). The Tribunal agrees.
The JCA Report dated 29 March 2018 relevantly remarks:
This condition is assessed as likely to continue impacting for more than 24 months and fully diagnosed. Clinical psychologist Melissa Harrison detailed at 26/10/17: brief intervention provided and not actively participated in intervention; current depressive experience is unlikely to improve substantially in absence of intervention. The client has had limited recent consistent engagement in psychological intervention (e.g. aforementioned 4 sessions to October 2017). Thus, as per the guidelines for the impairment tables, this condition is assessed as permanent, fully diagnosed, however, not fully treated, and stabilised (T63/239).
In relation to Ms Markus discontinuing the recommended treatment with psychologist Melissa Harrison, the AAT1 noted:
She said she did see psychologist Melissa Harrison last year but could not “live by the clock” as she had suggested and did not think she could cope with the routine Ms Harrison suggested. Instead she does what she can when she can (T2/10).
Ms Markus told this Tribunal: “Well, I think we were on different pages. I went there to try and work out pain management” (Transcript, p 18).
In her oral evidence, Ms Markus agreed that she submitted her claim for DSP in October 2017 because her workers’ compensation insurer was closing her case in November.

She said that she had undertaken more treatment for her lumbar spine condition than her neck condition because her neck was not covered by her workers’ compensation insurance (Transcript, p 12).
There is no evidence before the Tribunal of any medical or other compelling reason for

Ms Markus’ decision not to participate in recommended psychological counselling.

The AAT1 decision dated 30 October 2018 noted that Ms Markus had recently engaged with a psychiatrist for management of her condition (T2/10), and Dr Proud’s report mentioned above confirms that engagement. The Tribunal considers that the evidence supports a finding that at the qualification period there had been insufficient reasonable treatment undertaken.
Accordingly, as Ms Markus’ psychological mental health condition was not fully treated and stabilised at the qualification period, an impairment rating cannot be assigned to any impairment arising from this condition.
Other conditions - upper limb condition, osteoarthritis of the knees, thyroid cancer
There is evidence of a history of knee and shoulder conditions. There is reference to left knee pain and right knee pain in a medical report completed by Dr V.R. Thera dated

13 April 2011 (T33/137), and Dr Danielle Clark records shoulder conditions managed with bilateral acromioplasty in a report dated 24 February 2017 (T54/181).
In relation to Ms Markus’ upper limb condition, the JCA report states:
Functional impacts for this condition have been associated with the client’s cervical spine condition and impacts from same have been captured within the impairment rating for her spinal conditions
and recommends an impairment rating of 0 (T63/241).
In relation to thyroid cancer, the JCA report remarks:
Client reports thyroid cancer (diagnosis mid 2017); current treatment includes,

GP review and is awaiting further specialist review and surgery (public health waitlisted; surgeon Marcus Ong; surgery scheduled for 24/05/18). Client described symptoms including, occasional ‘croaky’ voice (T63/240).
The Respondent accepts that these other conditions were fully diagnosed at the qualification period, however contends that there is insufficient evidence to determine whether these conditions were fully treated and stabilised during the qualification period. Having considered the information before it, the Tribunal agrees. Accordingly, under the Rules, the Tribunal is unable to assign an impairment rating to any impairment arising from these conditions.
Overall impairment rating
The Tribunal finds that Ms Markus has an overall impairment rating of 10 points under the Impairment Tables due to conditions which were FDTS as at the qualification period.

It follows that Ms Markus does not satisfy s 94(1)(b) of the Act.
Continuing inability to work
In Exhibit R1, the Respondent provides a comprehensive analysis of the continuing inability to work requirement relevant to Ms Markus’ DSP claim. The Respondent contends that the Applicant did not have a continuing inability to work during the qualification period (Exhibit R1, paras 52-72). There was no dispute that Ms Markus had not participated in a program of support (POS), and Ms Markus told the Tribunal that she knew nothing about a POS. The Tribunal is of the view that the available material supports the Respondent’s contention.
As the Tribunal has found that Ms Markus’ impairments do not attract an impairment rating of 20 points or more, she does not satisfy s 94(1)(b) of the Act, and is therefore not qualified for the DSP. There is then no requirement for the Tribunal to consider whether or not Ms Markus has a continuing inability to work.
CONCLUSION
The Tribunal finds that Ms Markus’ lumbar spine condition attracts 10 impairment points under the Impairment Tables, and that her other conditions could not be assessed under the Impairment Tables. As at the qualification period, Ms Markus did not satisfy s 94(1)(b) of the Act which requires that a person’s impairments be assigned an impairment rating of 20 points or more. Consequently, the DSP claim must fail.
DECISION
For the above reasons, the Tribunal affirms the decision of the Social Services and Child Support Division of this Tribunal made on 30 October 2018.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

......[sgd]..................................................................
Associate
Dated: 23 October 2019

Date(s) of hearing: 4 September 2019

Applicant: In person

Counsel for the Respondent: Mr K Defranciscis

[2019] AATA 4308

23 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	4 September 2019
Applicant:	In person
Counsel for the Respondent:	Mr K Defranciscis