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

McKinnon and Secretary, Department of Social Services (Social services second review) [2020] AATA 4207 (20 October 2020)
Division:GENERAL DIVISION
File Number:2019/5362
Re:Mr Mark McKinnon
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:B. Pola, Senior Member
Date:20 October 2020
Place:Brisbane

Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division dated 17 July 2019.
..................................[SGD]..........................................
Senior Member B. Pola
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether condition is fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Qualification 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)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
REASONS FOR DECISION
Belinda Pola, Senior Member
20 October 2020
BACKGROUND

On 11 September 2018[1] the Applicant, Mr Mark McKinnon, signed an application for the Disability Support Pension (‘DSP’), which was received by the Department of Human Services (the ‘Department’) on 12 September 2018[2].
[1] Exhibit 1, T29, pages 165 to 196.
[2] Exhibit 1, T30, page 197.
On 30 October 2018[3], the Applicant was advised by the Department that their claim for the DSP was rejected. The decision to reject the Applicant’s claim for the DSP was again affirmed by an Authorised Review Officer (‘ARO’) after an internal review by the Department on 8 March 2019[4].
[3] Exhibit 1, T32, pages 201 and 202.
[4] Exhibit 1, T39, pages 222 to 228.
On 19 April 2019[5], the Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (the ‘Tribunal’) to review the Department’s decision to reject their claim for the DSP. The SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP on 17 July 2019[6].
[5] Exhibit 1, T40, pages 229 to 234.
[6] Exhibit 1, T2, pages 7 to 12.
The Applicant applied to the Tribunal for a second review of this decision on 27 August 2019[7].
[7] Exhibit 1, T1, pages 1 to 6.
JURISDICTION
This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.
Given the Applicant’s claim of 12 September 2018 has been reviewed in accordance with s135 of the Social Security (Administration Act) 1999 (Cth) (the ‘Administration Act’) by an ARO, and subsequently reviewed by the SSCSD of the Tribunal; in accordance with s179(1) of the Administration Act the Tribunal has jurisdiction to hear the Applicant’s claim for the DSP of 12 September 2018.
ISSUES
The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 12 September 2018, and ending 13 weeks later on 12 December 2018[8].
[8] The Qualification Period is discussed in later paragraphs of this Decision.
For the purposes of this application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments during the Qualification Period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’), a point which was accepted by the Respondent[9].
[9] Exhibit 2, page 8, paragraph 44.
The issue for the Tribunal to resolve in respect of the Applicant’s claim for the DSP is:
(i)whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work‑related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) within the Qualification Period; and
(ii)if so, did the Applicant have a continuing inability to work?
RELEVANT LEGISLATIVE PROVISIONS
The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of s94(1) of the Act:
94      Qualification for disability support pension
(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
…
To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.
Section 26(1) of the Act provides that “the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.
It is the Tribunal’s role to stand in the shoes of the original decision-maker[10] and determine whether the decision was the correct or preferable one on the material before the Tribunal[11]. Given this, the Tribunal must make its decision in accordance with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (referred to as the ‘Determination’ in these reasons), which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.
[10] Faulkner and Comcare [2007] AATA 1541 [27].
[11] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.
Section 6 of the Determination provides that “the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[12]. Further, the Impairment Tables in the Determination 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[13].
[12] Section 6(1) of the Determination.
[13] Section 6(2) of the Determination.
An impairment rating may only be assigned to an impairment if[14]:
(a)the person’s condition causing the impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.
[14] Section 6(3) of the Determination.
Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[15]:
·be fully diagnosed by an appropriately qualified medical practitioner; and
·be fully treated; and
·be fully stabilised; and
·be more likely than not, in light of available evidence, to persist for more than 2 years.
[15] Section 6(4) of the Determination.
When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[16]:
(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.
[16] Section 6(5) of the Determination.
A condition is considered fully stabilised if[17]:
(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.
[17] Section 6(6) of the Determination.
Reasonable treatment is a treatment that[18]:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
[18] Section 6(7) of the Determination.
Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.
Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.
In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.
While s11(1)(c) of the Determination provides that in assigning an impairment rating “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”.
Continuing inability to work
As previously detailed in paragraph 10 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a “continuing inability to work”. Section 94(2) of the Act requires that:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)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 severe impairment is defined in s94(3B) of the Act:
A person’s impairment is 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.
Section 94(3C) of the Act states that:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).
QUALIFICATION PERIOD
Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[19].
[19] Part 2, clause 4(1)(d) of the Administration Act.
For the purposes of this decision, the day which the Applicant’s claim for the DSP was registered with Centrelink was 12 September 2018[20], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 12 December 2018.
[20] Exhibit 1, T30, page 197.
This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[21].
[21] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [1]; Fanning and Secretary, Department of Social Services [2014] AATA 447 [31].
CONSIDERATION
The application was heard in Brisbane on 14 September 2020, with the Applicant and the Respondent (represented by Ms Jasmine Forsyth) appearing by telephone. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register in Annexure 1 of these reasons.
Section 94(1)(a) of the Act (physical, intellectual or psychiatric impairment)
As part of their application for the DSP, the Applicant listed, “ANXIETY AND DEPRESSION, HYPERTENSION, CHRONIC ABDOMINAL PAIN & DIARRHOEA” as the medical conditions that significantly affect their ability to work[22].
[22] Exhibit 1, T29, page 189.
The Tribunal is satisfied after review of the evidence before it that the Applicant suffered impairments during the Qualification Period in terms of s94(1)(a) of the Act, a point which was accepted by the Respondent[23]. On review of the evidence before the Tribunal, the Tribunal finds the following impairments relevant to this application:
(a) Irritable Bowel Syndrome;
(b) Hypertension;
(c) Mental health condition; and
(d) Skin condition.
Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)
[23] Exhibit 2, page 8, paragraph 44.
The Tribunal will consider each impairment identified in the abovementioned paragraph in accordance with s94(1)(b) of the Act, in particular whether they meet the relevant provisions contained within the Determination.
(a) Irritable Bowel Syndrome
The Applicant has submitted a range of medical reports in relation to their Irritable Bowel Syndrome, which the Tribunal refers to below:
(a)A Patient Health Summary from the Applicant’s treating General Practitioner Dr Gary Alexander (the Applicant’s treating General Practitioner for many years), with the report printed on 6 November 2017, and providing a patient history ranging in date from 18 March 2003 through to 6 November 2017. Notably, the following historical surgery consultation notes were recorded in relation to the Applicant’s Irritable Bowel Syndrome[24]:
[24]     Exhibit 1, T24, pages 89 to 125.
(i)On 9 May 2005, Dr Alexander recorded in history notes, “? Irritable Bowel syndrome”, and the following in Assessment Notes, “?? Irritable Bowel syndrome Gastroentertitits rotaviral Onset Date: 09/05/2005”[25]. [sic]
[25]     Exhibit 1, T24, page 95.
(ii)On 24 April 2015, Dr Alexander recorded in consultation notes, “Long discussion --?? Irritable Bowel syndrome – need to discount other causes--? for Colonoscopy and Gastroscopy later as final check”[26].
[26]     Exhibit 1, T24, page 122.
(b)A colonoscopy and polypectomy undergone by the Applicant on 27 March 2014, with Dr Andrew Renaut, Professor of Surgery, finding that, “With the exception of a couple of small polyps, normal colonoscopy. In view of this finding I have made arrangements for a recall colonoscopy in 3 years”[27].
[27]     Exhibit 1, T13, page 65.
(c)A Queensland Health Discharge Summary Report from an admission to the Emergency Department of the Royal Brisbane and Women’s Hospital on 15 May 2015, and a discharge on 19 May 2015, stating that the Applicant had presented with diarrhea and abdominal pain, and was referred to the gastroenterology outpatients department[28].
[28]     Exhibit 1, T15, page 68.
(d)A colonoscopy undertaken by Dr Desmond Patrick (IBD Fellow) on 1 July 2015, after a referral from Dr Gerald Whiting, Physician, with the following impression of the Applicant, “Moderate sigmoid diverticulosis is the likely cause of the patient’s symptoms. No features of IBD”[29].
[29]     Exhibit 1, T16, page 78.
(e)A Medical Certificate from Dr Alexander dated 23 August 2016, stating that the Applicant had been diagnosed with, “Chronic Abdominal Pain”, with the date of onset listed as 1 May 2015, with symptoms of, “Abdominal cramps and continuing nausea and Indigestion”, and a prognosis listed as “Ongoing”[30].
[30]     Exhibit 1, T19, page 82.
(f)A letter from Dr Whiting to Dr Alexander dated 15 November 2016, stating, “… He has redeveloped diarrhoea, six or seven times per day, which can be small or medium volume, usually brown with no blood or mucous in it. It’s more than three years since his last colonoscopy. He has some epigastric pain which goes down into his abdomen. He is not taking any health food or Chinese herbs of any sort and is only on his Twynsta… I will check his bowel motions to make sure there is no germs in them and, as he has some difficulty passing urine, I will check that for bugs beforehand”[31]. [sic]
[31]     Exhibit 1, T21, page 84.
(g)A letter from Dr Whiting to the Dr Alexander dated 6 April 2017 stating[32]:
[32]     Exhibit 1, T22, page 85.
“… He is now only drinking four or five, but I suspect more, tinnies of light or mid strength beer per day. He was drinking a lot more, despite in the past saying that he wasn’t drinking at all or only small amounts. His liver function tests have improved greatly as a result of that, but his Gamma GT is about twice the upper limit of normal. He is very resistant to the idea of stopping alcohol and re-starting on one or two and seeing if his liver functions get worse.
He had an episode of, I think, small bowel obstruction which landed him in Prince Charles six days ago. They tried to put a nasogastric down, which failed, and they gave him fluids and eventually he settled down. I have told him you can’t predict when you are going to get small bowel obstruction and there is nothing you can do to precipitate or relieve it.
… He has really got to be careful with his alcohol. His weight has gone up six kilos because he is enjoying his food and his life more right now. Hopefully he will keep his alcohol down. It is good that he has been scoped and they haven’t found anything, and he has seen Dr Marnie Wood from the liver point of view and she feels that as much as can be done has been.
I will see him in four months and play it by ear then.”
(h)A discharge referral from the Prince Charles Hospital dated 10 April 2017, following admission on 1 April 2017 and discharge on 2 April 2017, with recommendations that, “Admissions with small bowel obstruction which quickly resolved with conservative measures”[33].
[33]     Exhibit 1, T23, page 87.
(i)A letter addressed to Meg Warren dated 20 February 2018, in response to questions put to the Applicant’s doctor regarding insurance claims, with Dr Alexander providing answers to those questions. Notably in relation to the Applicant’s Irritable Bowel Syndrome, the following was stated[34]:
[34]     Exhibit 1 T25, pages 127 and 128.
“1. Mixed Anxiety and Depression with Panic Attacks plus Irritable Bowel Syndrome causing Abdominal Pain and Diarrhoea. He was unable to concentrate due to headaches and stress symptoms and therefore unable to make decisions in order to perform the duties required.
2. Currently taking ANTENEX
Recently ceased LUVOX
Mark has to be close to toilets when he has a bout of Irritable Bowel Syndrome causing abdominal pain and diarrhoea. Sometimes needing to take LOMOTIL if diarrhoea is a problem and has to go out of the house. Symptoms are ongoing but less now since being out of the pressure situation at work.
3. There isn’t any effective treatment for Irritable Bowel Syndrome and Marks symptoms are ongoing. Antidepressants were somewhat effective but not to a point where symptoms were controlled.
…
6. Mr McKinnon in my opinion will not be able to return to any form of work within his education standard, training and experience. Starting any new occupation would evoke worsening of existing symptoms as previously described. He would not be able to concentrate enough and would always be needing the availability of a toilet”.
(j)A summary from Dr Alexander, with the report printed on 2 March 2018, providing a patient history ranging in date from 5 January 2016 through to 2 March 2018. Notably, the following historical surgery consultation notes were recorded in relation to the Applicant’s Irritable Bowel Syndrome[35]:
[35]     Exhibit 1, T26, pages 129 to 137.
(i)On 12 September 2017, Dr Alexander recorded in surgery consultation notes, “… Still gets Irritable Bowel disease --? Anxiety related”[36].
(ii)On 18 April 2017, Dr Alexander recorded in surgery consultation notes, “Still has recurrent diarrhoea – has had Gastroscopy and colonoscopy --- NAD. Still having close calls with the bowels – gets a feeling and has to go or soils panys – has been caught in a number of occasions --? Irritable Bowel”. Further comments from Dr Alexander stated, “Chronic episodic diarrhoea – No cause found. Long discussion re problem –checked all last letters from Dr Whiting – no cause found”[37]. [sic]
(k)A letter addressed to the court dated 8 May 2018 prepared by Stephen Hoey, Occupational Therapist, providing the following opinion[38]:
“Mr McKinnon has been diagnosed with irritable bowel syndrome. These often unpredictable symptoms have had a profound effect on this man’s quality of life. He suffers abdominal pain, diarrhea and bowel urgency. There have been accidents. Obviously in most workplaces toilets are available. However, the frequency that this man would need to use the toilet would raise questions in a workplace and likely paint him in an unfavourable light. If accidents were to occur he would not simply shower at work in the middle of the day. If he were engaged in employment he would likely need to leave work early with regularity or have days away from work during flares…. The unpredictable nature of Mr McKinnon’s bowel movements has resulted in him avoiding outings. There would be significant (and likely insurmountable) barriers to this man’s ability to attend a job interview in an unfamiliar area, let alone a workplace with regularity”.
(l)A medical certificate dated 1 November 2018 from Dr Alexander, stating, “Mr Mark McKinnon suffers from Irritable Bowel Syndrome with chronic Abdominal pain and diarrhoea on a daily basis”[39].
[36]     Exhibit 1, T26, page 132.
[37]     Exhibit 1, T26, pages 132 and 133.
[38]     Exhibit 1, T28, pages 159 to 160.
[39]     Exhibit 1, T33, page 203.

The Respondent has contended that there is no definitive diagnosis of the Applicant’s Irritable Bowel Syndrome, and that such a finding would be inconsistent with available medical evidence, with particular reference to the colonoscopy report of 1 July 2015 confirming the Applicant did not have irritable bowel disease (refer to paragraph 35(d) of these reasons)[40].
[40] Exhibit 2, page 9, paragraph 47.
It is evident that in more recent years prior to the Qualification Period for this application, the Applicant has received treatment for this condition through his General Practitioner, Dr Alexander, who subsequently diagnosed the Applicant with Irritable Bowel Syndrome, after previously questioning this diagnosis (refer to paragraph 35(a) and (j) of these reasons).
The Tribunal notes additional evidence has been submitted in the form of medical certificates from Dr Alexander outside the Qualification Period for this application. These medical certificates state that the date of onset for the condition was 6 August 2019[41]. It is not clear from the medical evidence before the Tribunal exactly when, and on what basis, Dr Alexander’s presumptive diagnosis of Irritable Bowel Syndrome had been confirmed. The Tribunal is of the view that the medical evidence regarding the Applicant’s Irritable Bowel Syndrome is conflicting, and agrees with the Respondent’s contention that the diagnosis is not definitive, particularly in light of the colonoscopy undertaken by Dr Patrick (refer to paragraph 35(d) of these reasons).
[41] Exhibit 3; and Exhibit 6.
The Tribunal is of the view that regardless of whether the Applicant’s Irritable Bowel Syndrome is considered fully diagnosed prior to or during the Qualification Period for this application; there is a lack of medical evidence before the Tribunal confirming whether the Applicant’s condition had been fully treated and fully stabilised. The medical evidence before the Tribunal (outlined in paragraph 35 of these reasons), confirms the Applicant continued to suffer from symptoms with no medical evidence to suggest that the condition had been optimally treated prior to or during the Qualification Period for this application.
Given the lack of medical evidence substantiating the above, the Tribunal is of the view that the Applicant’s Irritable Bowel Syndrome, cannot for the requirements of the Determination be considered fully treated and fully stabilised. Therefore, the Tribunal is unable to assign an Impairment Rating for the Applicant’s Irritable Bowel Syndrome.
(b) Hypertension
A medical certificate from Dr Alexander of 1 November 2018 diagnosed the Applicant with Hypertension[42]. A summary of patient notes from Dr Alexander, printed on 2 March 2018, confirms the Applicant had been prescribed Twynsta for the condition, with the last script issued on 4 January 2018[43].
[42] Exhibit 1, T33, page 203.
[43] Exhibit 1, T26, page 129.
Additionally, a Job Capacity Assessment Report dated 5 February 2019 (but referrable to the Qualification Period of this application) notes that the Applicant had been on this medication for more than 5 years[44].
[44] Exhibit 1, T36, page 211.
The Tribunal heard evidence from the Applicant that they were currently taking their prescribed medication for the condition, and that it was controlled[45].
[45] Transcript 14 September 2019, page 27, lines 1 to 9.
The Tribunal is satisfied for the purposes of the Determination that the Applicant’s condition has been fully diagnosed, fully treated, and fully stabilised prior to the Qualification Period for this application.
The Tribunal is of the view on the evidence before it that the Applicant’s Hypertension condition has no functional impact on the basis that the condition is under control with prescribed medication. Pursuant to s6(8) of the Determination, the Tribunal is of the view that no impairment rating need be assigned for the Applicant’s Hypertension.
(c) Mental Health Condition
The introduction to Table 5 – Mental Health Function of the Determination expressly stipulates that the diagnosis of a mental health condition (or impairment) “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”[46].
[46] The Determination, page 22.
The Tribunal is satisfied that the Applicant’s mental health condition was permanent and fully diagnosed prior to the Qualification Period of this application, based on the submitted medical legal report of Dr Jeffrey Adams, Consultant Psychiatrist, of 7 March 2018, diagnosing the Applicant with, “Major Depressive Disorder, chronic and “with anxious distress”, moderate to severe”[47].
[47] Exhibit 1, T27, page 145.
The Tribunal notes that Dr Adams recommended the following treatment for the Applicant following his diagnosis[48]:
“… I consider it impossible to comment on whether he has reached “maximal medical improvement”, or to be more definitive regarding his prognosis, given he has not been offered psychotherapy (which might be delivered by either a Psychologist or Psychiatrist); has only been trialled on two medications, one of which has been the predominant medication over the entirety of his illness, despite not achieving remission; and, the current dose of his antidepressant (Luvox, 100mg at night) could be increased by as much as two-fold to 200mg to obtain greater benefit (or other medications or combinations of medications trialled). Introducing psychotherapy and exploring other doses and other medications might not change the situation, but for him to have received gold standard treatment for the diagnosed conditions, and for me to then make comment over his prognosis and whether he has reached his best state, further work (representing, as Dr Peter Mullholland put it in his report seven years ago, “full scale psychiatric treatment”) needs to be done.
…
I would suggest that more aggressive treatment of his depression might bring him clinical relief…
…
I acknowledge that he may show no improvement despite the above, but that without trying he has not received complete treatment for his condition.”
[Emphasis in original]
[48] Exhibit 1, T27, page 146.
The Tribunal heard evidence from the Applicant at the hearing that they continue to take their prescribed medication, Luvox; and that not long after receiving the report the Applicant’s treating General Practitioner, Dr Alexander increased the Applicant’s medication and it has since been maintained[49].
[49] Transcript, 14 September 2020, page 21, lines 31 to 47; page 22, lines 1 to 5.
In relation to whether the Applicant had undertaken psychotherapy, the Applicant stated that this was discussed with Dr Alexander, and given the lengthy period the Applicant had been treated by Dr Alexander (and the Applicant’s stated view of Dr Alexander, that it may not help at all), it was decided that they would not proceed with this recommended treatment[50].
[50] Transcript, 14 September 2020, page 22, lines 7 to 11.
The Applicant had stated that, off the record, Dr Adams had made comments that the treatment the Applicant had received through Dr Alexander was actually excellent and that the Applicant’s General Practitioner knew the Applicant better than Dr Adams, however this was not documented[51]. In the absence of evidence, the Tribunal is unable to give the Applicant’s evidence any weight in relation to the alleged contrasting opinion of Dr Adams regarding the Applicant’s recommended treatment involving psychotherapy.
[51] Transcript, 14 September 2020, page 22, lines 12 to 24.
The Tribunal agrees with the Respondent’s contention that the medical opinion offered by Dr Adams regarding the recommended treatment for the Applicant is the preferred opinion as Dr Adams is a specialist with qualified expertise in the assessment and treatment of psychiatric disorders[52].
[52] Exhibit 2, page 11, paragraph 58.
Further, the Tribunal is of the view that the recommended psychotherapy treatment by Dr Adams would be considered reasonable treatment for the purposes of meeting the requirements in s6(7) of the Determination. The Tribunal again refers to Dr Adams medical legal report of 7 March 2018, where he stated that in his view psychotherapy, and increasing the Applicant’s prescribed medication (or exploring other medications), would ensure the Applicant was receiving, “gold standard treatment for the diagnosed conditions”. Additionally, Dr Adams stated that doing this would assist in ascertaining a prognosis as to whether the Applicant’s mental health condition had been optimally treated[53].
[53] Exhibit 1, T27, page 146.
In view of the above, the Tribunal finds that the Applicant’s mental health condition is not considered fully treated and fully stablished prior to or during the Qualification Period of this application in accordance with the requirements of the Determination. The Tribunal is unable to assign and Impairment Rating for this condition.
(d) Skin condition
At the hearing, the Applicant stated that they believed Table 14 – Functions of the Skin within the Determination applied to their circumstances and should be considered as part of their application[54].
[54] Transcript, 14 September 2020, page 8, lines 22 to 47; and page 9, lines 1 to 7.
The Tribunal has had regard to the documents submitted from the Applicant and found patient notes from Dr Alexander regarding the Applicant’s skin condition, in a report printed on 2 March 2018. Entries from this report on 4 January 2018, 19 January 2017, 17 January 2017, 10 January 2017, 28 October 2016, and 5 January 2016 confirm the Applicant had various skin checks and reported symptoms of itchy skin, in addition to having cryotherapy to remove solar keratoses[55].
[55] Exhibit 1, T26, pages 130, 131, 133, 134, 136 and 137.
The Tribunal has had regard to the inclusion of this impairment as part of this application, but is of the view that there is a lack of corroborating medical evidence in relation to the Applicant’s skin condition, prior to or during the Qualification Period for this application which indicates:
(a)a prognosis;
(b)whether the condition had been treated and is stabilised;
(c)confirmation of whether the condition is permanent;
(d)past or current recommended treatments; or
(e)whether the condition was more likely than not to exist for more than two years.
Additionally, the Tribunal notes Dr Alexander’s comment on 4 January 2018, which stated, “Advice re skin care and further treatment”, which indicates that the condition still required further treatment following the Qualification Period for this application[56].
[56] Exhibit 1, T26, page 131.
Given the lack of additional medical evidence substantiating the above, the Tribunal is of the view that the Applicant’s skin condition cannot, for the requirements of the Determination, be considered fully diagnosed, fully treated or fully stabilised. Therefore, the Tribunal is unable to assign an Impairment Rating for the Applicant’s skin condition.
Conclusion
The Tribunal has found that none of the Applicant’s impairments were able to be assigned an Impairment Rating in accordance with the requirements of the Determination. Therefore, the Applicant did not satisfy s94(1)(b) of the Act.
Accordingly, there is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division dated 17 July 2019.
I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola
……………[SGD].………………
Associate
Dated: 20 October 2020
Date of hearing:  14 September 2020
Applicant:  Mr Mark McKinnon by telephone (self-represented)
Solicitor for Respondent:       Ms Jasmine Forsyth by telephone
“ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit

Number

Description

1

Section 37 T-Documents, received 5 December 2019, pages 1 to 255.

2

Respondent’s Statement of Facts, Issues and Contentions (including Attachments A and B), received 21 January 2020, paged 1 to 17.

3

Centrelink Medical Certificate of Dr Gary Alexander, received 18 June 2020 and 27 July 2020.

4

Letter from Centrelink, received 27 July 2020.

5

Image of Applicant’s Pension Card, received 27 July 2020.

6

Centrelink Medical Certificate of Dr Gary Alexander, received 4 August 2020.

7

Statement of the Applicant’s wife, received 10 September 2020.

[2020] AATA 4207

20 October 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Exhibit Number		Description
1	Section 37 T-Documents, received 5 December 2019, pages 1 to 255.
2	Respondent’s Statement of Facts, Issues and Contentions (including Attachments A and B), received 21 January 2020, paged 1 to 17.
3	Centrelink Medical Certificate of Dr Gary Alexander, received 18 June 2020 and 27 July 2020.
4	Letter from Centrelink, received 27 July 2020.
5	Image of Applicant’s Pension Card, received 27 July 2020.
6	Centrelink Medical Certificate of Dr Gary Alexander, received 4 August 2020.
7	Statement of the Applicant’s wife, received 10 September 2020.