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

[2022] AATA 440

McLaughlin and Secretary, Department of Social Services (Social services second review) [2022] AATA 440 (15 March 2022)

Division:GENERAL DIVISION

File Number:          2021/0706

Re:Ronald   McLaughlin

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member Ranson

Date:15 March 2022

Place:Brisbane

The Tribunal affirms the decision not to approve the application, dated 16 April 2020, by Mr McLaughlin for a disability support pension.

...........................[SGD]..............................

Member P Ranson

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 (Active Participation for Disability Support Pension) Determination 2014 (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

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Shi and Migration Agents Registration Authority (2008) 235 CLR 286; (2008) 103 ALD 467

SECONDARY MATERIALS

Social Security Guide, Department of Social Services, version 1.290

REASONS FOR DECISION

Member Ranson

15 March 2022

BACKGROUND

1. The Applicant, Mr Ronald McLaughlin, is now in his early 50’s and suffers from many debilitating illnesses. At various times, he has suffered from mental health conditions such as bipolar disorder, and his eyesight is affected by post-shingles neuralgia. He also suffers from hearing loss, HIV and diverticulitis. He has suffered from these conditions for many years, and he says that these conditions prevent him from undertaking any form of paid employment. As a result, in 2020, he applied to the Department of Social Services, part of Services Australia, for a disability support pension (DSP).

2. To qualify for a DSP, an applicant must satisfy various criteria concerning their physical, intellectual, or psychiatric impairments. An applicant’s impairments must be fully diagnosed, treated, and stabilised, and attract an impairment rating of at least 20 points under the relevant table. In addition, an applicant must have a continuing element of an inability to work.

3. Mr McLaughlin’s claim for a DSP was rejected on the basis he did not have an impairment rating of 20 points or more. Mr McLaughlin immediately requested a review of that decision. A medical eligibility assessment was undertaken in September 2020 based on further medical advice received and a job capacity assessment was recommended. The outcome of that job capacity assessment was Mr McLaughlin’s various health conditions were not fully diagnosed, treated, and stabilised, and he had capacity, within 2 years with appropriate interventions, to work 15 to 22 hours per week doing light, less-skilled work.

4. Mr McLaughlin requested a review of the decision arising from the further medical advice and job capacity assessment. An authorised review officer (ARO) conducted a review and affirmed the decision to reject his claim for a DSP. Dissatisfied with the ARO’s decision, Mr McLaughlin applied to the Social Services & Child Support Division (SSCSD) of this Tribunal for a first-tier review of that decision, which was, once again, affirmed. Still dissatisfied, Mr McLaughlin applied to the General Division of this Tribunal for a second-tier review of the SSCSD’s decision.

5. The starting point for a claim for a DSP is the conditions must be fully diagnosed. In most cases, the diagnosis must be made by an appropriately qualified medical practitioner. For example, mental illnesses must be diagnosed by either a psychiatrist or a clinical psychologist, and conditions of the eye must be diagnosed by an ophthalmic surgeon.

6. Mr McLaughlin has been treated for many years by his general practitioner (GP), who has referred him to various specialists, including a psychologist who specialises in pain management. Unfortunately for Mr McLaughlin, the psychologist is not a clinical psychologist, and so, his diagnosis cannot be accepted for the purposes of a claim for a DSP. For this and other reasons, Mr McLaughlin’s application for a review of the SSCSD’s decision must be affirmed.

7. The Tribunal suggests Mr McLaughlin shares this decision with his GP, as its findings may assist with any future claim for a DSP. The table, at Appendix A, may also assist.

   PROCEDURAL HISTORY

8. The parties in this case are:

Applicant	Ronald McLaughlin (Mr McLaughlin)
Respondent	Secretary, Department of Social Services (the Secretary)

1. The decision under review was made by the SSCSD of the Administrative Appeals Tribunal on 11 January 2021, which affirmed a decision of the Secretary to reject Mr McLaughlin’s claim made on 16 April 2020 for a DSP (AAT1). While several documents refer to the claim date being 23 March 2020[1], for the purpose of this review the Tribunal has referred to the date the claim was marked as received, being 16 April 2020[2]

   [1] See Exhibit 1, T Documents, T26, page 187, ARO reasons for decision.

   [2] See Ibid, T18, page 35.

2. The issue, in this case, is whether Mr McLaughlin satisfied the qualification criteria for a DSP as at the date of his claim, 16 April 2020, or within 13 weeks thereafter.

3. The hearing for this application was held on 10 January 2022 (the Hearing). Mr McLaughlin attended the hearing and gave evidence under affirmation. Ms Maleah Underhill (Ms Underhill) also attended the hearing, representing the Secretary.

4. All parties attended the Hearing by audio and video link, facilitated by the Tribunal, utilising Microsoft Teams. Mr McLaughlin was not able to connect to the video link provided to him, and so, appeared by audio only. Ms Underhill appeared by audio and video link. The Hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold the Hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the Applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the Hearing was not conducted by videoconference. The Tribunal is satisfied all parties were given a fair opportunity to give evidence and present arguments.

5. At the end of the Hearing, Mr McLaughlin requested additional time to provide a medical report from his treating psychologist, Mr Bob Gambrill (Mr Gambrill), to which the Tribunal agreed, and the report was duly provided (the Gambrill Report). Ms Underhill, on behalf of the Secretary, responded to the Gambrill Report on 21 February 2022.

6. Prior to the Hearing, all parties were provided with an exhibit list showing Exhibits 1 to 4. The following documents were then admitted into evidence:

Number	Description
Exhibit 1	T-Documents.
Exhibit 2	Secretary’s Statement of Facts, Issues and Contentions dated 18 November 2021 (SFIC).
Exhibit 3	Secretary’s list of authorities.
Exhibit 4	Letter from Mr Andrew Fraser (Mr Fraser) of Hearing Australia to Dr Seham Ayad (Dr Ayad) dated 25 March 2015.
Exhibit 5	Letter  addressed to “To whom it may concern” from Mr Gambrill, dated 4 January 2022, in relation to Mr McLaughlin.
Exhibit 6	Response by the Secretary to Exhibit 5.

1. Exhibits 1 to 4 were included on the draft exhibit register provided to the parties prior to the Hearing. Exhibits 5 and 6 were added to the exhibit list after the Hearing, see [‎13].

2. The Tribunal has considered all the materials supplied to it and the oral evidence provided at the Hearing. Not all the evidence is referred to at length in this decision. That does not mean it has not been considered in determining the outcome. It is sometimes impractical or unnecessary to canvass all aspects, arguments, and history of a case in the decision.

   THE LAW

3. Exhibit 2 sets out in detail the law which is relevant to this case, with which, the Tribunal concurs. A copy of Exhibit 2 and Exhibit 3 were provided to Mr McLaughlin prior to the Hearing, and the Tribunal confirms the relevant legislation is contained in:

   (a)The Social Security Act 1991 (Cth) (the Act),

   (b)The Social Security (Administration) Act 1999 (Cth) (the Administration Act),

   (c)The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and

   (d)The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the Determination).

4. The Secretary’s SFIC also refers to the Social Security Guide (the Guide).[3] The Tribunal notes that, where a general policy exists to guide the decision-maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[4] The Tribunal considers there are no pressing reasons to depart from the policy outlined in the Guide.

   [3] Social Security Guide, Department of Social Services, version 1.290.

   [4] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 635 (Brennan J).

5. It was explained to Mr McLaughlin at the Hearing that the relevant law had to be applied to the facts of his case. To assist Mr McLaughlin to understand this decision, set out below is a discussion about the important aspects of the law as it applies to his case, especially section 94 and schedule 2 of the Act, and sections 6(3) to 6(8) of the Impairment Tables.

6. Schedule 2, clause 4(1) of the Act specifies where a person makes a claim for a social security payment and the person is not qualified for that payment on the day of the claim; however, through the passage of time or events, the applicant becomes qualified for a payment within a period of 13 weeks after the day on which the claim was made, and the person does become so qualified within a period, the claim is taken to be made on first day on which the person is qualified for the social security payment. The practical application of this section is Mr McLaughlin’s claim for a DSP must be assessed on his medical conditions as they were as at the date of lodgement of his claim, or within 13 weeks of that date, see [‎10]. Accordingly, the qualification period for this application is 16 April 2020 to 16 July 2020 (the Qualification Period).

7. Section 94 of the Act prescribes the criteria which must be met in order to qualify for the payment of a DSP. In the present case, the predominant qualification questions before the Tribunal are:

   (a)does the Mr McLaughlin have physical, intellectual, or psychiatric impairments,[5]

   (b)do the Mr McLaughlin’s impairments attract 20 points or more under the Impairment Tables,[6] and

   (c)does the Mr McLaughlin have a continuing inability to work?[7]

   [5] Section 94(1)(a) of the Act.

   [6] Section 94(1)(b) of the Act.

   [7] Section 94(1)(c) of the Act.

8. Any deterioration or change to Mr McLaughlin’s medical conditions after the Qualification Period, that is, after 16 July 2020, are not relevant to this decision.[8] As such, medical reports produced after the Qualification Period, such as the reports from Dr Roger Welch (Dr Welch) and Mr Gambrill, are only relevant to the extent they refer to the Mr McLaughlin’s medical conditions during the Qualification Period.[9]

   [8] Shi and Migration Agents Registration Authority (2008) 235 CLR 286; (2008) 103 ALD 467, [144] - [145].

   [9] Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29]

9. Under the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is permanent.[10] A condition could be considered permanent from the perspective of it being life-long, and yet, not meet the DSP requirements. For the purposes of a DSP claim, for a condition to be regarded as permanent, it must be, as at the date of claim or within 13 weeks of the claim:

   (a) fully diagnosed by an appropriately qualified medical practitioner;

   (b)fully treated;

   (c)fully stabilised; and

   (d)based on available evidence, more likely than not to persist for more than 2 years.[11]

   [10]  Section 6(3) of the Impairment Tables.

   [11] Section 6(4) of the Impairment Tables.

10. The definitions in Part 1 of the Impairment Tables state an appropriately qualified medical practitioner (emphasis added) means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition. For mental health function, the diagnosis of the condition must be made by a psychiatrist or an appropriately qualified medical practitioner with evidence from a clinical psychologist (note: not by a psychologist).[12] For visual function, the diagnosis of the condition must be made by an ophthalmologist.[13]

    [12] Table 5 of the Impairment Tables.

    [13] Table 12 of the Impairment Tables.

11. To determine whether a condition has been fully diagnosed and fully treated, the following must be considered:

    (a)whether there is corroborating evidence of a condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether the treatment is continuing or is planned in the next 2 years.[14]

    [14] Section 6(5) of the Impairment Tables.

12. For a medical condition to be regarded as fully stabilised, one of two conditions must arise:

    (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)where the person has not undertaken reasonable treatment for the condition, and either significant functional improvement to a level enabling a person to undertake work in the next 2 years is not expected to result even if the person undertakes reasonable treatment, or there is a medical or other compelling reason for the person not to undertake reasonable treatment.[15]

    [15] Section 6(6) of the Impairment Tables.

13. Reasonable treatment is treatment available at a location reasonably accessible to the person and at a reasonable cost, can reliably be expected to result in a substantial improvement in functional capacity, is readily undertaken or performed, has a high success rate, and carries a low risk to the person.[16]

    [16] Section 6(7) of the Impairment Tables.

14. There is no Table dealing specifically with pain, which is a significant issue for Mr McLaughlin. When assessing pain, the following must be considered:

    (a)acute pain is a symptom which may result in short-term loss of functional capacity in more than one area of the body;

    (b)where chronic pain has been diagnosed as a condition, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

    (c)whether the condition causing pain has been fully diagnosed, fully treated, and fully stabilised, see [‎23].[17]

    [17] Section 6(9) of the Impairment Tables.

15. The existence of a diagnosed medical condition does not necessarily result in an impairment rating being assigned under the Impairment Tables. Unless there is a functional impact on the person, no impairment rating will be assigned.[18]

    [18] Section 6(8) of the Impairment Tables.

16. Finally, self-reported symptoms about a condition can only be considered where there is corroborating evidence, and unless required under the Tables, the impact of non-medical factors must not be considered when assessing a person’s impairment.[19]

    EVIDENCE

    [19] Section 8 of the Impairment Tables.

    Mr McLaughlin’s Medical Conditions

17. Mr McLaughlin’s medical conditions are best summarised from the Job Capacity Assessment Report (JCA) completed at Southport by a rehabilitation counsellor on 12 October 2020.[20] The JCA concluded:

    [20]  Exhibit 1, T Documents, T24.

Condition	Assessment by rehabilitation counsellor
Bipolar affective disorder	Presumptive and not fully diagnosed as no psychiatric confirmation. Therefore, not fully diagnosed, fully treated, and fully stabilised.
Left eye condition	Fully diagnosed by ophthalmologist. Not fully treated and fully stabilised due to lack of specific medical opinion about ongoing management, treatment, prognosis, and functional impact.
Post-shingles neuralgia	Fully diagnosed by GP. Not fully treated and fully stabilised as participation in all reasonable treatment not undertaken.
Diverticular disease	Fully diagnosed by a radiologist. Onset not identified. Not fully treated and fully stabilised due to insufficient medical opinion about ongoing management, treatment, prognosis, and level of impairment.
HIV/AIDS	Fully diagnosed at Gold Coast University Hospital (GCUH). Onset not identified. Not fully treated and fully stabilised due to insufficient medical opinion about ongoing management, treatment, prognosis, and level of impairment.
Work capacity	15-22 hours per week doing light, less-skilled work within two years with appropriate interventions.

1. The above medical evidence is discussed in the following paragraphs. For the benefit of Mr McLaughlin and his medical advisers, Appendix A, which is derived from the Impairment Tables shows examples of appropriately qualified medical practitioners who can diagnose various conditions.

   Dr Miller

2. Dr John Miller (Dr Miller) is a GP with Eastbrooke Family Clinic at Southport in Queensland.[21] He is Mr McLaughlin’s GP. On 22 November 2018, Dr Miller completed a Centrelink form entitled “Verification of medical condition(s)”.[22] It reports the medical conditions of Mr McLaughlin as follows:

   (a)       Post shingles neuralgia with left eye involvement;

   (b)Depression; and

   (d)Hypertension with mild cognitive impairment.

   [21]   Credentials: MBBS (Hons), FRAGP, Dip (Obs) RCOG, Advanced Cert. Sports Medicine (FRACGP), Member of AASCP and ASLM taken from .

   [22]   Exhibit 1, T Documents, T10.

3. On 6 April 2020, Dr Miller wrote a medical certificate for Mr McLaughlin addressed to “To whom it may concern”.[23] As that was the date on which Mr McLaughlin appeared to have signed his claim for a DSP, the Tribunal assumes this medical certificate was prepared for that purpose. The medical certificate refers to conditions such as post-traumatic shingles neuralgia, bipolar disorder, and depression. Dr Miller states his opinion as to Mr McLaughlin’s fitness for work. Dr Miller also makes comments about the lack of assistance from Centrelink in dealing with Mr McLaughlin’s financial hardship, none of which are relevant or helpful in this case.

   [23] Exhibit 1, T Documents, T16.

4. Dr Miller’s medical certificate of 6 April 2020 notes the post-traumatic neuralgic shingles were being treated by a Dr Edward McCarthy. Dr Joseph Black  (Dr Black) diagnosed Mr McLaughlin with bipolar disorder in 2015 [see [36]], although Dr McCarthy’s letter of 7 June 2018 suggests this condition was diagnosed in 2011, and post-traumatic shingles neuralgia and depression diagnosed by a doctor at Gold Coast University Hospital although he does not identify when that diagnosis was made, though suggests it was sometime around 2017.[24]

   [24] Exhibit 1, T Documents, T8.

   Dr Black

5. Dr Black of the Strand Medical Clinic at Coolangatta in Queensland had previously been Mr McLaughlin’s GP. On 17 February 2015, Dr Black completed a Centrelink form titled “Medical Report – Disability Support Pension” indicating, at that time, Mr McLaughlin had been his patient for approximately 18 months. That report, which was cross-endorsed by Dr Miller on 6 April 2020, listed the medical conditions of Mr McLaughlin as follows:

   (a) Bipolar affective disorder (said to be confirmed by Cheryl Blakey, psychologist); and

   (b)Post shingles neuralgia for left face and left eye (diagnosed on 4 January 2017).[25]

   [25] Exhibit 1, T Documents, T15.

   Dr Welch

1. On 24 September 2020, Dr Welch[26] who is an ophthalmologist at Southport in Queensland prepared a report about Mr McLaughlin for a local optometrist.[27] The same day, Dr Welch also prepared a report for Centrelink about Mr McLaughlin.[28] He states the diagnosis as a brain injury in 1979 and shingles in 2017. His prognosis is that no improvement is possible, and the conditions are permanent. He specifies the acuity of the right eye is 6/12, and for the left eye, is -2. In terms of field of vision, he states there is a quadrantic defect to the centre of the right eye, and for the left eye, the field is gone. He also states the field of vision is constricted to 10 degrees or less of arc around central fixation in the better eye [right eye] irrespective of corrected visual acuity (equivalent to 1/100 white test object). He concludes by saying Mr McLaughlin is blind in his left eye and has visual loss in his right eye, which he says equates to “legal blindness”, all of which says, and the Tribunal finds, the condition is fully diagnosed, fully treated, and fully stabilised, despite the findings in the JCA, see [‎32].

   [26] Credentials: MBChB, FRANZCO, FRACS taken from Exhibit 1, T Documents, T22.

   [28] Exhibit 1, T Documents, T23.

The Secretary originally agreed with the finding in AAT1 that Mr McLaughlin is legally blind in his left eye and the condition is fully diagnosed, fully treated, and fully stabilised. In making that finding, the AAT1 decision assigned 10 impairment points under Table 12 (Visual Function).[29] The Secretary has reconsidered that position and no longer agrees with the allocation of 10 impairment points because the report by Dr Welch is dated after the Qualification Period, and makes no reference, direct or otherwise, to the condition existing during the Qualification Period. The Tribunal agrees with that finding.

[29] Exhibit 1, T Documents, T2 at [32] – [33].

Gold Coast University Hospital

Mr McLaughlin was admitted to the GCUHat Southport in Queensland on 4 January 2017 and was discharged on 7 January 2017. He was attended by Dr Kylie Alcorn, and his condition was described as “Unilateral facial rash”.[30] Mr McLaughlin referred to this hospitalisation in his evidence at the Hearing and sought to rely on it as support for his DSP claim. The principal diagnosis is given as: “L [left eye] Herpes Zoster Ophthalmicus [commonly known as shingles] with no intraocular involvement and Hutchinson's negative”. His previous medical history is recorded as HIV, which is described as being “known to Dr O’Sullivan” and “well controlled”, and anxiety.

[30] Exhibit 1, T Documents, T6.

Clinical management of his conditions included discharge with planned ophthalmology review as an outpatient plus medication in the form of oral Valacyclovir, Flucloxacillin for the secondary bacterial infection and Pregabalin for neuropathic pain. No complications and no procedures were entered, and there were no medications at admission.

His medications at discharge included Valaciclovir to treat his herpes zoster, Alprazolam for anxiety, Esomeprazole to treat his reflux disease, Nevirapine and Tenofovir for his HIV, and Oxycodone, Paracetamol, and Pregabalin to treat pain, especially severe nerve pain. The recommendations to his GP included the need for an ophthalmology review and that “He requires no ID clinic follow-up and his HIV will continue to be monitored and managed by his usual physician”. At the time, Mr McLaughlin was a patient of Dr Black.

Referral to Dr Ayad (Exhibit 4)

On 25 March 2015, Mr Fraser, who is an audiologist at Hearing Australia, wrote to Dr Ayad following a hearing assessment conducted that day. Mr McLaughlin reported constant, bilateral, severe tinnitus and some intermittent vertigo as well as repeats with general conversation. Mr Fraser concluded:

(a)Mr McLaughlin’s hearing thresholds in the left ear showed normal limits;

(b)results for the right ear revealed hearing thresholds within normal limits up to 2kHz sloping to essentially a moderate high frequency sensorineural hearing loss. An asymmetry is noted for the right ear in the high frequencies;

(c)speech audiometry showed excellent speech discrimination in both ears with appropriate amplification; and

(d)Mr McLaughlin should be referred to an Ear, Nose and Throat (ENT) specialist for investigation and treatment of his tinnitus and intermittent vertigo, and he may benefit from hearing instruments with a tinnitus masking program in both ears.

Mr Gambrill Report

Mr Gambrill is a consultant health psychologist specialising in chronic pain and trauma with Managing Pain Clinic at Tugun in Queensland. On 4 January 2022, he wrote a report for Mr McLaughlin in which he states:

“Mr McLaughlin was initially referred to me by Dr John Miller from the Eastbrooke Medical Centre in July 2018 [possibly within the Qualification Period] in relation to his post neuralgic pain condition resulting from shingles. At this time and at a subsequent appointment in August the same year it was evident from his presentation and Dr Miller’s report that his pain condition had been accurately diagnosed, treated and was fully stabilised.

During our most recent consultation and those in the last 2 months and Mr. McLaughlin’s self-reports it is my professional assessment that his Bipolar disorder has over the past 12 years been completely diagnosed, treated and is now fully stabilised.”[31]

[31] Exhibit 5, Letter of 1 page dated 4 January 2022 addressed to “To whom it may concern” from Mr Gambrill, dated 4 January 2022, in relation to Mr McLaughlin.

In response to the report by Mr Gambrill, the Respondent noted:

“The new material is comprised of a medical report from the applicant’s treating psychologist, Mr Bob Gambrill. Mr Gambrill is not a clinical psychologist, and as such he is not an appropriately qualified medical practitioner of a kind required under the Introduction to Impairment Table 5 to diagnose a mental health condition. The Secretary therefore maintains the contention that there is no evidence – from an appropriately qualified medical practitioner – diagnosing the applicant’s mental health conditions, and the Tribunal is therefore precluded from making a finding that the applicant’s mental health condition was fully diagnosed at any time prior the qualification period ending.

With respect to the applicant’s post-neuralgic pain, the Secretary notes Mr Gambrill’s view that the condition, resultant from shingles ‘had been accurately diagnosed, treated and was fully stabilised’. While Mr Gambrill provides this opinion from the perspective of a treating psychologist who specialises in mental health conditions arising from chronic pain and trauma, he is not a pain specialist. The Secretary considers that the applicant could reasonably be expected to have consulted with a pain specialist given the reported severity of his symptoms, yet there is a dearth of evidence to support that any pain specialist review or intervention had occurred prior to the applicant’s lodging his claim for disability support pension or within the 13 weeks that followed.”[32]

[32] Exhibit 6, Response by the Secretary to Exhibit 5.

Other Reports

Exhibit 1 includes many other medical reports for Mr McLaughlin including:

(a)JCA report from 2006, which is not relevant as it is out of date;[33]

(b)Employment Services Assessment  reports from 2013, 2017, 2019, and 2021, which concur with the JCA discussed above at [‎32];[34]

(c)Radiology report dated 28 August 2018 by Dr Allan Lu of South Coast Radiology at Robina, which found occasional colonic diverticula with no acute diverticulitis. No prognosis was offered, which is referred to in the JCA;[35] and

(d)Medical certificates from various doctors from 2013 to 2019, which mostly indicate he is unfit for work for certain periods, which do not add any weight to the other medical evidence already considered.[36]

[33] Exhibit 1, T Documents, T4.

[34] Exhibit 1, T Documents, T5; T7; T12; T28.

[35] Exhibit 1, T Documents, T11.

[36] Exhibit 1, T Documents, T29.

CONCULSION

The first hurdle in a successful DSP claim is for the applicant’s medical conditions to be fully diagnosed by an appropriately qualified medical practitioner and that diagnosis be current as at the time of application, or within 13 weeks of that date.

Dr Welch is an ophthalmologist, and so, he is an appropriately qualified medical practitioner who is able to diagnose the eye conditions of Mr McLaughlin for the purpose of Table 12 of the Impairment Tables. Unfortunately, his report post-dates, and does not refer to, the Qualification Period, so it cannot be used to assign impairment points for this DSP claim.

Unfortunately, Mr Gambrill is not a clinical psychologist, and so, in relation to Mr McLaughlin’s bipolar disorder, there is no evidence it has been diagnosed by either a psychiatrist or a clinical psychologist, so his report cannot be used to assign impairment points for this DSP claim.

The Tribunal does not say Dr Black and Dr Miller are not experienced and competent GPs. As has been pointed out in this decision, for some medical conditions, GPs alone are not regarded as appropriately qualified medical practitioners who are able to provide a diagnosis acceptable for a DSP claim (emphasis added).

Similarly, the report by Mr Fraser of Hearing Australia is not sufficient for the purposes of Table 11. He recommends an assessment by an ENT specialist, which would meet the requirements of Table 11. There is no evidence that has occurred.

The other medical conditions of Mr McLaughlin may be acknowledged as fully diagnosed; however, the relevant reports do not address the issue of these medical conditions being fully treated and fully stabilised. That is, there is insufficient medical opinion about ongoing management, treatment, prognosis, and level of impairment to enable the assignment of impairment points for Mr McLaughlin’s DSP claim.

That means no impairment points can be assigned to the major medical conditions suffered by Mr McLaughlin, and so, his application for a DSP dated 16 April 2020 must fail. That is not to say that a future application for a DSP by Mr McLaughlin would necessarily fail. The Secretary acknowledges Mr McLaughlin has many debilitating medical conditions. The Tribunal agrees. To be successful, any future application for a DSP will require diagnoses by appropriately qualified medical practitioners, such as those shown in Appendix A, accompanied by reports which provide sufficient medical opinion about ongoing management, treatment, prognosis, and level of impairment in each case.

DECISION

The Tribunal affirms the decision not to approve the application dated 16 April 2020 by Mr McLaughlin for a DSP.

54.     I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

…………………[SGD]………………………..
Associate
Dated: 15 March 2022

Date of Hearing:	10 February 2022, Post-Hearing material filed 21 February 2022
Applicant:	By Audio
Solicitor for the Respondent:	Ms Maleah Underhill

APPENDIX A – EXAMPLES OF APPROPRIATELY QUALIFIED MEDICAL PRACTITIONERS

Table	Description	Diagnosis by
1	Functions requiring Physical Exertion and Stamina	The person’s treating doctor plus a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain) and a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms) with the results of exercise, cardiac stress or treadmill testing.
2	Upper Limb Function	The person’s treating doctor plus a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb) and a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact with results of diagnostic tests (e.g. X-Rays or other imagery) and results of physical tests or assessments.
3	Lower Limb Function	The person’s treating doctor plus a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb) and a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact with results of diagnostic tests (e.g. X-Rays or other imagery) and results of physical tests or assessments.
4	Spinal Function	The person’s treating doctor plus a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine) and a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
5	Mental Health Function	An appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
6	Functioning related to Alcohol, Drug and Other Substance Use	The person’s treating doctor plus a report from an addiction medicine specialist or psychiatrist with experience in diagnosis or treatment of substance use disorders and results of investigations (e.g., liver function tests, alcohol, and substance use assessment scales) with reports or other records of participation in treatment or rehabilitation programs and work or training attendance records.
7	Brain Function	The person’s treating doctor plus a report from a specialist medical practitioner (e.g., a neurologist, rehabilitation physician, psychiatrist or neuropsychologist) with results of diagnostic tests (e.g., Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG)) and cognitive function assessments.
8	Communication Function	The person’s treating doctor plus a specialist assessment by a speech pathologist, neurologist or psychologist and a report from a medical specialist confirming diagnosis of conditions associated with communication impairment.
9	Intellectual Function	A report from an appropriately qualified psychologist plus an assessment of intellectual function in the form of a Wechsler Adult Intelligence Scale IV (WAIS IV) or equivalent contemporary assessment with either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R), the Vineland Adaptive Behaviour Scales (Vineland-II) or any other standardised assessment of adaptive behaviour.
10	Digestive and Reproductive Function	The person’s treating doctor plus a report from a medical specialist (such as a gastroenterologist, a gynaecologist, a urologist, or an oncologist) confirming diagnosis of a digestive or reproductive system condition and results of investigations (such as X-Rays or other imagery, endoscopy, or colonoscopy).
11	Hearing and other Functions of the Ear	The person’s treating doctor plus a report from a medical specialist (e.g., an ENT specialist or neurologist) confirming diagnosis of conditions associated with hearing impairment or other impaired function of the ear (e.g., congenital deafness, presbycusis, acoustic neuroma, side-effects of medication, Meniere's disease or neurological conditions including Multiple Sclerosis) and results of audiological assessment undertaken by a fully qualified audiologist or ENT specialist.
12	Visual Function	The person’s treating doctor plus a report from a medical specialist (e.g. ophthalmologist, ophthalmic surgeon) confirming diagnosis of conditions associated with vision impairment (e.g. diabetic retinopathy, glaucoma, retinitis pigmentosa, macular degeneration, cataracts, congenital blindness) and results of vision assessments (e.g. from an optometrist).