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

[2021] AATA 245

Michaelides and Secretary, Department of Social Services (Social services second review) [2021] AATA 245 (16 February 2021)

Division:GENERAL DIVISION

File Number:2020/1936          

Re:Mr Steven Michaelides  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:B. Pola, Senior Member

Date:16 February 2021

Place:Brisbane

Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division dated 13 February 2020.

.................................[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

Administrative Appeals Tribunal Act 1975 (Cth)

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
Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810
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
Newman and Secretary, Department of Family and Community Services [2002] AATA 917
Smalldon and Secretary of Department of Social Services [2015] AATA 2

REASONS FOR DECISION

B. Pola, Senior Member

16 February 2021

BACKGROUND

1. On 22 May 2019, the Applicant, Mr Steven Michaelides, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with the Department of Human Services (herein referred to as the ‘Agency’)[1].

   [1] Exhibit 1, T17, pages 115 to 116.

2. On 4 September 2019, the Applicant was advised by the Agency that their claim for the DSP was rejected[2].

   [2] Exhibit 1, T20, pages 125 and 126.

3. The decision to reject the Applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency on 25 October 2019[3].

   [3] Exhibit 1, T23, pages 130 to 137.

4. The Applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’); to review the Agency’s decision to reject their claim for the DSP. On 13 February 2020, the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[4].

   [4] Exhibit 1, T2, pages 5 to 9.

5. The Applicant applied to the Tribunal for a second review of this decision on  27 March 2020[5].

   [5] Exhibit 1, T1, pages 1 to 4.

   JURISDICTION

6. 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.

7. The Applicant’s claim of 22 May 2019 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.

8. In accordance with s179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s DSP claim of 22 May 2019.

   ISSUES

9. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 22 May 2019, and ending 13 weeks later on 21 August 2019[6].

   [6] The Qualification Period is discussed in later paragraphs of this Decision.

10. The issue for the Tribunal to resolve in respect of the Applicant’s claim for the DSP is:

    (a) Whether the Applicant had impairments during the Qualification Period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as ‘the Act’)?

    (b)  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?

    (i)If so, did the Applicant have a continuing inability to work as defined in s94(2) of the Act for the purpose of s94(1)(c) of the Act?

    RELEVANT LEGISLATIVE PROVISIONS

11. 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

    …”

12. 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.

13. Section 26(1) of the Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

14. It is the Tribunal’s role to stand in the shoes of the original decision-maker[7] and determine whether the decision was the correct or preferable one on the material before the Tribunal[8].

    [7]     Faulkner and Comcare [2007] AATA 1541 [27].

    [8]     Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.

15. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

16. Section 6 of the Determination provides that “[t]he 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”[9]. 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[10].

    [9] Section 6(1) of the Determination.

    [10] Section 6(2) of the Determination.

17. An Impairment Rating may only be assigned to an impairment if[11]:

    (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 two years.

    [11] Section 6(3) of the Determination.

18. Further, for a condition to be considered permanent pursuant to s6(3)(a) of the Determination, the condition must also[12]:

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

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years.

    [12] Section 6(4) of the Determination.

19. 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[13]:

    (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 two years.

    [13] Section 6(5) of the Determination.

20. A condition is considered fully stabilised if[14]:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [14] Section 6(6) of the Determination.

21. Reasonable treatment is a treatment that[15]:

    (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.

    [15] Section 6(7) of the Determination.

22. 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.

23. 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.

24. 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”.

25. 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

26. 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.”

27. 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.”

28. 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.”

29. 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

30. 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[16].

    [16] Part 2, clause 4(1)(d) of the Administration Act.

31. For the purposes of this decision, the day which the Applicant’s claim for the DSP was lodged with Centrelink was 22 May 2019[17], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 21 August 2019.

    [17] Exhibit 1, T17, pages 115 to 116.

32. 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[18].

    [18] 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) 144 ALDA 133; [2014] AATA 447 [31].

    CONSIDERATION

33. The application was heard in Brisbane on 19 January 2021, with the Applicant (who was self-represented), and the Respondent (who was represented by Ms Gillian Gehrke) both 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 (Annexure 1).

    Section 94(1)(a) of the Act (physical, intellectual or psychiatric impairment)

34. 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[19].

    [19] Exhibit 2, page 6, paragraph 32.

35. There is mention in the submissions before the Tribunal that the Applicant suffers from hypothyroidism[20]. Additionally, the Applicant stated to the Tribunal that they suffered from depression and were currently seeing a psychologist and receiving treatment (including medication)[21]. The Tribunal observes there is a lack of evidence with respect to the Applicant’s hyperthyroidism and no medical evidence before the Tribunal to corroborate the Applicant’s stated mental health condition prior to or during the Qualification Period. In view of this, and in circumstances where there is a lack of evidence indicating the following in relation to these conditions:

    (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;

    the Tribunal was unable to consider these conditions as part of the application.

    [20] Exhibit 1, T7, page 66.

    [21] Transcript 19 January 2021, page 8, lines 6 to 27.

36. On review of the evidence before the Tribunal, the Tribunal finds the following impairments relevant to this application:

    (a)Spinal condition; and

    (b)Sleep apnoea.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

37. The Tribunal will now consider each impairment identified with respect to the application of s94(1)(b) of the Act, and in particular whether they meet the relevant provisions contained within the Determination.

    (a)Spinal condition

38. With respect to the Applicant’s spinal condition, there is medical evidence to suggest that this has persisted for some five years, and has caused pain in the Applicant’s lower back. The Tribunal refers to s6(9) of the Determination which states:

    “Assessing functional impact of pain

    (9) There is no Table dealing specifically with pain and 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; and

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

    …”

39. In view of s6(9) of the Determination, the Tribunal has treated the Applicant’s pain experienced in their lower back as a symptom of their spinal condition.

40. In relation to the Applicant’s spinal condition, the Tribunal notes the following submitted medical evidence:

    (a)An undated CT scan performed by Dr Tang on the Applicant which documented the following impression, “No focal disc protrusion or neural compressive disease identified. Mild facet joint degeneration. Pseudo-arthrosis on the right side of L5/S1 due to a partially sacralised L5. Further evaluation with a SPEC CT (nuclear medicine study) may be indicated”[22].

    [22] Exhibit 1, T4, page 44.

    (b)A report entitled ‘Medical Report: Sickness Allowance’ completed by the Applicant’s treating General Practitioner, Dr Ali Soleymani on 8 March 2016, which diagnosed the Applicant with “facet joint degeneration in lumbar spine” and having symptoms of, “severe low back pain”, with the Applicant receiving treatment that involved pain medication[23].

    [23] Exhibit 1, T5, pages 52 to 58.

    (c)A report prepared by Dr Blair Christian, Consultant Occupational Physician of 23 February 2017 which stated[24]:

    [24] Exhibit 1, T6, pages 59 to 65.

    “Mr Michaelides has had orthopaedic surgeon and rheumatologist review, in late 2015/early 2016. On examination, no lower limb neurological abnormality was found. There was no evidence of any autoimmune or inflammatory arthritis. There was concern about possible psoriatic arthropathy, but this has been excluded. The orthopaedic surgeon notes that there was no surgical treatment available.

    …

    Mr Michaelides has chronic mechanical low back pain. His pain likely relates to the congenital pseudoarticulation on the right at L5. There is a degree of facet joint degeneration of the lower lumbar levels. However bone scan did not identify hot spots in those areas, and CT-guided steroid injection to the facet joints did not lead to improvement in pain. Therefore it is very likely the pseudoarthrosis on the right at L5 which is the cause of symptoms.

    Mr Michaelides has leg pain with standing and walking. In the absence of any vascular cause for this, the leg pain is most likely neurogenic claudication related to the lumbar spine. There is no evidence of radiculopathy nor complex regional pain syndrome on examination.

    …

    Mr Michaelides has had orthopaedic surgeon review. No surgery was indicated. Mr Michaelides has had physical therapy, without marked improvement. He remains on Targin, and this is of benefit in terms of his pain.

    The prognosis is that Mr Michaelides will have ongoing low back pain. If indeed the pain is related to the pseudarthrosis at L5, and given that surgery has not been recommended or thought likely to be of benefit, there is unlikely to be resolution of the pain.

    Mr Michaelides has not yet had the benefit of a multidisciplinary pain management program. As discussed with Mr Michaelides today, if he does go through that type of program, which I do recommend, the aim would be for him to have an improvement in his level of pain, a decrease in his requirement for opiate medication, and an improvement in his level of activity tolerance. Obviously there can be no guarantee regarding any level of improvement.

    I regard the prospect of Mr Michaelides returning to work as a windscreen fitter/auto glazier as near nil. That role has a requirement for at times prolonged driving, prolonged standing, frequent forceful bending, and frequent medium level lifting.

    …

    I recommend Mr Michaelides is referred for a multidisciplinary pain management assessment and then treatment program. This would likely include a psychological pain management component, discussion with a pain physician regarding other pain medication trials or rationalisation of pain medications, and core muscle strengthening program. The pain physician would be able to refer for a second opinion from a neurosurgeon if they felt this was required, though there is little indication for that at this time.”

    (d)On 15 August 2018, Mr Simon Kilner, Clinical Psychologist from the Interdisciplinary Persistent Pain Centre in the Gold Coast Health Service District stated that the Applicant attended an individual appointment with clinicians, where at the conclusion of the appointment it was agreed that the Applicant would be scheduled for a variety of programs, including[25]:

    [25] Exhibit 1, T8, page 68.

    “1. Bounce Back: A small group program specific to back pain, this group runs 2 hours per week for 5 weeks, and provides education and an active approach to self-management strategies to manage back pain in everyday activities and improve physical health.

    2.Individual Occupational Therapy management

    3.Individual Pharmacy management

    4.lndividual Physiotherapy management.”

    (e)A report entitled ‘Medical Report: Sickness Allowance’ completed by the Applicant’s treating General Practitioner, Dr Ling Zhang, following an examination on   2 January 2019, which diagnosed the Applicant with “Chronic back pain”, with an onset from 2015, and symptoms including, “Persistent pain on back and thigh. Reduced ROM. Muscle weakness on lower limbs”. The medical report noted that treatment included “Pain Management. HCLA injection”; the Applicant’s future/planned treatment included “Specialist Surgeon R/V at Gold Coast Hospital”; and the Applicant’s condition was expected to persist for more than two years, with the effect on the Applicant’s ability to function being “Uncertain”[26].

    (f)A radiology report from Dr Peter Zheng performed on 12 March 2019, which states[27]:

    “After acquiring patient history, review of diagnostic work-up, taking into consideration prior therapy and physically examining the patient it was decided with the patient that they may benefit for trial of therapeutic injection in the pursuit of pain relief given conservative management has failed.

    …

    Under CT guidance and skin infiltrated with 2% lignocaine local anaesthetic, 22 gauge needle was inserted into the region of the right L5/S1 lateral pseudoarticulation through the sacroiliac joint route, combination of 1cc Dexamethasone and1cce 0.5% Marcaine infiltrated. Patient's symptoms reproduced. Procedure well tolerated with no peri-procedural complication.”

    (g)A Job Capacity Assessment Report (herein referred to as ‘JCAR’) undertaken on 21 August 2019 which stated that the Applicant’s spinal condition was considered fully diagnosed on the basis of Dr Christian’s report of 23 February 2017, but was not regarded as fully treated and fully stabilised. The JCAR report recorded the following with respect to the history of the Applicant’s spinal condition[28]:

    “The client had gradual onset back pain through 2014 and 2015 which led to GP consultation in 2015 and conservative treatment (physiotherapy and analgesia). Multiple investigations were undertaken including CT Scans and MRI. The client consulted with an Orthopaedic Surgeon and Rheumatologist with the Orthopaedic Surgeon noting that no surgical intervention was warranted. The clients condition deteriorated in 2016 with burning and aching in his lower legs with prolonged standing and walking. The most recent specialist report notes that the clients pain is most likely related to degeneration of psuedoarthrosis at L5 and that a multidisciplinary pain program will assist in alleviating pain and improve activity tolerance, the client advised he has been referred but is yet to engage.”

    [26] Exhibit 1, T12, pages 88 to 100.

    [27] Exhibit 1, T13, page 101.

    [28] Exhibit 1, T19, page 120.

1. The Tribunal is satisfied that the Applicant’s spinal condition is fully diagnosed on the basis of the diagnosis offered by Dr Christian from his report of 23 February 2017, where he stated, “Mr Michaelides has chronic mechanical low back pain. His pain likely relates to the congenital pseudoarticulation on the right at L5. There is a degree of facet joint degeneration of the lower lumbar levels” [29].   

   [29] Exhibit 1, T6, pages 59 to 65.

2. With respect to considering whether the Applicant’s spinal condition was fully treated and fully stabilised, the evidence before the Tribunal is that the Applicant has been subject to multiple medical investigations which have included consultations with:

   (a)Orthopaedic Surgeons (with surgical intervention not recommended)[30]; and

   (b)Rheumatologists (with no evidence of any autoimmune or inflammatory arthritis present)[31].

   [30] Exhibit 1, T6, page 60.

   [31] Ibid.

3. The Tribunal observes that Dr Christian, in addition to recommending a multidisciplinary approach to pain management for the Applicant’s spinal condition, also recommended physiotherapy as part of the Applicant’s treatment in his report of 23 February 2017[32]. The Tribunal observes that the JCAR report of 21 August 2019 stated that the Applicant had engaged in previous treatment which included physiotherapy and analgesia[33].

   [32] Exhibit 1, T6, page 64.

   [33] Exhibit 1, T19, page 120.

4. In addition to the above-mentioned approaches, Mr Kilner, Clinical Psychologist from the Interdisciplinary Persistent Pain Centre in the Gold Coast Health Service District, on 15 August 2018 further recommended (following agreement with the Applicant) that they engage in the following treatment programs, including “Occupational Therapy management”, “Individual Pharmacy management”, “Individual Physiotherapy Management” and an educational program entitled “Bounce Back” [34].

   [34] Exhibit 1, T8, page 68.

5. The Applicant informed the Tribunal that they had attended an appointment regarding the ‘Bounce Back’ program, but had not attended any of the other recommended treatment programs as they had not received an appointment letter to attend[35].

   [35] Transcript, 19 January 2021, page 11, lines 4 to 15.

6. The Tribunal is of the view that the prescribed treatments from Dr Christian and Mr Kilner; constitute reasonable treatment pursuant to s6(7) of the Determination, particularly in circumstances where pain is one of the major symptoms of the Applicant’s spinal condition (with respect to the recommendation the Applicant engage in a multidisciplinary pain program).

7. Evidence before the Tribunal reported in the JCAR from a consultation which occurred on 21 August 2019 (the Qualification Period of this application ended on this date), states that the Applicant’s engagement in, “… a multidisciplinary pain program will assist in alleviating pain and improve activity tolerance, the client advised he has been referred but is yet to engage”[36]. [Tribunal underline for emphasis]

   [36] Exhibit 1, T19, page 120; Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 [at 25, 28 and 29].

8. The Applicant in oral submissions before the Tribunal stated that they were still waiting to see a multidisciplinary pain management program in the Metro South Health District, and accepted that there were no records of this before the Tribunal, and stated that his current doctor had completed the paper work for the referral about 18 months ago[37]. A medical certificate from Dr Zhang of 6 September 2019 (post-dating the Qualification Period for this application), confirms the Applicant was still awaiting assessment by a pain management clinic[38].

   [37] Transcript 19 January 2021, page 11, lines 24 to 47; and page 12, lines 1 to 11.

   [38] Exhibit 1, T26, page 168.

9. The Tribunal has had reference to previous decisions where it has been found that in circumstances where treating clinicians have recommended a course of pain management which has not been undertaken by the Applicant, the requirements of the Determination can’t be considered satisfied[39].

   [39] Newman and Secretary, Department of Family and Community Services [2002] AATA 917 [31 and 32]; Smalldon and Secretary of Department of Social Services [2015] AATA 2 [16].

10. The Tribunal is of the view that the Applicant’s spinal condition is not considered fully treated prior to or during the Qualification Period for this application, as recommended treatment (regarded as reasonable treatment pursuant to s6(7) of the Determination) had not been undertaken by the Applicant.

11. This point in the Tribunal’s mind is particularly valid in circumstances where the Applicant confirmed they engaged in further treatment which included successful steroid injections, resulting in a reduction in the Applicant’s intake of opioid medications, which had positive benefits for their sleep apnoea (as recommended by Dr Christian). The Tribunal refers to the following exchange[40]:

    [40] Transcript 19 January 2021, page 13, lines 16 to 28.

    “Respondent:           Okay.  So when did you have that steroid injection that was significant or that had an effect in reducing your symptoms?

    Applicant:                 Roughly about a month and a half before I was due to fly.

    Senior Member:       That would be this year?  Sorry, it’s the tribunal.

    Respondent:             Sorry.  So about a month and a half before June 2019?

    Applicant:So it gave me a comfortable - so I was more comfortable travelling.

    Respondent:             Okay.  So after you had that injection, did that result in an improvement in your sleep apnoea symptoms?

    Applicant:Well, according to the - the study, they’re telling me it did, because I came down on my pain opioid use.  So they kept me on the same machine.”

12. The Tribunal agrees with the Respondent’s contention that the Applicant’s spinal condition, “… cannot be regraded as “fully stabilised” during the qualification period as the Applicant had not undertaken reasonable treatment for this condition and there is no evidence that further reasonable treatment for this condition was not expected to result in significant functional improvement…”[41].

    [41] Exhibit 2, page 9, paragraph 45.

13. As the Tribunal has found that the Applicant’s spinal condition is not considered fully treated or fully stabilised prior to or during the Qualification Period for this application, the Tribunal is not able to assign an Impairment Rating for this condition.

    (b)      Sleep apnoea

14. In relation to the Applicant’s sleep apnoea condition, the Tribunal notes the following submitted medical evidence:

    (a)A report dated 14 May 2018 from Dr Carl Pahoff, Staff Specialist Respiratory and Sleep Physician at the Gold Coast University Hospital, which states[42]:

    [42] Exhibit 1, T7, pages 66 and 67.

    “He has quite a lot of residual daytime sleepines with his Epworth score still 15/24 and the machine has really only been partially effective at best. He reports there is a very high residual AHl on the machine download however we have not been provided with any download and he did not bring his machine for review.

    He is still on a significant dose of opioids and is awaiting chronic pain review.

    I cannot do much at this stage without being able to review his machine or some objective data. He has an appointment with our Sleep Scientist next week during which he will bring in his machine and any other downloads. It sounds as though there was a machine function problem halfway through the rental period and the machine was changed but he is going to look into getting the initial download from the rental company.

    If the download confirms he is on the appropriately prescribed pressure and still has a high AHI then we will need to do a repeat titration study which may ultimately require a split from CPAP to bi-level NIV. Otherwise if the pressure settings are sub-optimal then we will correct them at that time in the first instance.

    Hopefully we will be able to sort this out in the next couple of months but I will see him physically in the clinic in six months.”

    (b)A letter from Dr Pahoof to the Applicant’s General Practitioner, Dr Zhang, following an appointment on 19 November 2018 with the Applicant, which states[43]:

    [43] Exhibit 1, T9, pages 70 and 71.

    “Steven returned to my Outpatient Clinic. He is now pretty well established on CPAP but has unfortunately not found a huge therapeutic benefit. He did not bring the power cord for his machine so I was unable to interrogate his hours of usage but he reports that he is compliant with the machine.

    He has ongoing significant pain issues and remains on a very significant amount of medication including high doses of two opioids. He was seen in the Robina Persistent Pain Clinic but I understand you may be referring him to another pain service somewhere.

    During the two month rental period on CPAP 14 cmH2O the residual AHI was elevated at 15.5/hr with the machine reporting the majority of this to be central in nature. It is quite likely that there is an ongoing significant central component not controlled by CPAP due to his use of opioid medications. The pressure had been empirically increased to 15 cmH2O but pressure increases can actually worsen the problem. I am going to repeat his CPAP titration study starting at a slightly lower pressure. If CPAP is unable to control events he may need adaptive servo-ventilation (ASV) although we would need to get a routine echocardiogram to exclude LV dysfunction
    prior to that.

    Most importantly he needs a better pain strategy as a lot of this would simply
    disappear if he was not taking opioids. I plan to catch up with him in six months but he will proceed with the further sleep study in the meantime.”

    (c)A letter from Dr Pahoof’s fellow Dr Adrian Barnett, indicates that there were additional plans for the Applicant to undergo further sleep studies prior to their trip to the United Kingdom in July 2019, however there is no reference to the outcome of this further sleep study in the evidence before the Tribunal[44].

    (d)A Medical Certificate submitted by the Applicant post-dating the Qualification Period for this application from Dr Zhang on 6 September 2019 states that the Applicant is still suffering from sleep apnoea, with symptoms of, “Disturbed sleep pattern and day time fatigue”, and a prognosis that it was, “Likely to show considerable improvement within 2 years”[45].

    [44] Exhibit 2, Attachment C, page 15.

    [45] Exhibit 1, T26, page 168.

15. The Tribunal is satisfied that the Applicant’s sleep apnoea was fully diagnosed on the basis of Dr Pahoff’s report and subsequent follow up letters. However, the evidence before the Tribunal does not indicate that the Applicant’s sleep apnoea condition can be considered fully treated and fully stabilised.

16. As previously referred to in earlier reasons of this decision, the Applicant gave evidence that they had a steroid injection in their spine prior to their departure from Australia in June 2019 which was successful in reducing pain associated with their spinal condition. The Applicant stated that further sleep studies showed there was an improvement in their sleep apnoea symptoms, following a reduction in the use of opioids to manage pain from their spinal condition[46].

    [46] Transcript, 19 January 2021, page 13, lines 1 to 28.

17. The Tribunal is of the view that the Applicant’s sleep apnoea condition cannot be regarded as fully treated and fully stabilised on the basis that there is a lack of medical evidence before the Tribunal substantiating that the Applicant had completed all recommended treatment prior to or during the Qualification Period for this application (with particular reference to further sleep studies required to be undertaken in Dr Barnett’s letter referred to in paragraph 54(c) in the above reasons of this decision).

18. As the Tribunal has found that the Applicant’s sleep apnoea is not considered fully treated and fully stabilised prior to or during the Qualification Period for this application, the Tribunal is not able to assign an Impairment Rating for this condition.

    Summary

19. The Tribunal has found that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables during the Qualification Period, and therefore they do not satisfy s94(1)(b) of the Act.

20. Accordingly, there is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.

    DECISION

21. Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division dated 13 February 2020.

    I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    ……………[SGD].………………

    Associate

    Dated: 16 February 2021

    Date of hearing:  19 January 2021

    Applicant:  Mr Steven Michaelides (self-represented, via telephone)

    Solicitor for Respondent:       Ms Gillian Gehrke (via telephone)
      Services Australia

    ANNEXURE 1 – EXHIBIT REGISTER

Exhibit Number	Description of Exhibit	Party	Date of Document	Date of Receipt
1	Section 37 T Documents (pages 1 to 196)	R	-	7 Apr 2020
2	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 15) with attachments: Attachment A: Documents provided by Applicant on 2 June 2020; Attachment B: Medical imaging report dated 7 July 2016 (also provided by Applicant to the Tribunal on 17 July 2020); and Attachment C: Medical documents provided by Applicant on 1 September 2020 (also provided by Applicant to the Tribunal on 31 August 2020) · Q-Scan imaging reports (four pages) dated 31 March 2015, 7 July 2016, 30 August 2016, 3 August 2017 · Queensland Government, medical notes (11 pages)	R	14 Oct 2020	14 Oct 2020
3	Applicant’s Statement	A	29 Nov 2020	29 Nov 2020