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

Mills and Secretary, Department of Social Services (Social services second review) [2016] AATA 805 (13 October 2016)

Division

GENERAL DIVISION

File Number

2016/2664

Re

Lesley Mills

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Member D Grigg

Date 13 October 2016

Place Brisbane
The Tribunal affirms the decision under review.
.......................[Sgd].................................................
Member D Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Freeman v Secretary, Department of Social Security[1988] FCA 294; (1988) 19 FCR 342.
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
REASONS FOR DECISION
Member D Grigg
13 October 2016

Ms Mills is 33 years old and had been a recipient of the Disability Support Pension (“DSP”) since 1 November 2011 on the basis of a spinal disorder.[1] However, on 18 December 2015, after a medical review to assess Ms Mills’ eligibility for DSP,[2] Ms Mills’ DSP was cancelled by the Department of Human Services (“Centrelink”).[3]
[1]           Exhibit 2, Respondent’s Statement of Facts and Contentions, para 4.1.
[2]           Exhibit 1, T Documents, T18, pages 145-154, Medical Review for Disability Support Pension by Dr Nigel Brennan
dated 14 April 2015.
[3]           Exhibit 1, T Documents, T24, pages 178-179, Letter from Centrelink to Ms Mills dated 18 December 2015.
CLAIM HISTORY
Ms Mills sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Ms Mills’ claimed impairments either were not fully diagnosed or did not attract 20 points or more under the Impairment Tables.[4]
[4] Exhibit 1, T Documents, T26, pages 193-199, Decision of ARO dated 13 January 2016.
On 2 February 2016, Ms Mills lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[5] The SSCSD rejected Ms Mills’ claim and affirmed the ARO’s decision on 20 April 2016.[6]
[5] Exhibit 1, T Documents, T28, pages 202-204, Letter from Centrelink to Ms Mills regarding SSCSD Request.
[6] Exhibit 1, T Documents, T2, pages 3-13, SSCSD’s Decision and Reasons for Decision dated 20 April 2016.
Ms Mills has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1-2, Ms Mills’ Application for Second Review of Decision dated 11 May 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Mills must have a physical, intellectual or psychiatric impairment;
(b)Ms Mills’ impairments must be of 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 (“Determination”).[8]
(c)Ms Mills must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[9]
[9] See also Freeman v Secretary, Department of Social Security[1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Ms Mills must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 18 December 2015 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Mills’ impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[10]
DID MS MILLS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
[11] Determination, s 3.
Ms Mills’ medical condition/s
The medical report of Dr Louisa Birkett dated 9 November 2011, which accompanied Ms Mills’ original application for DSP, lists Ms Mills medical conditions as:[12]
·Chronic lower back pain with lumbosacral disc prolapse
·Anxiety & stress & depression
·Asthma
·Hypertension
·Polycystic ovarian syndrome
·Weight excess
[12] Exhibit 1, T Documents, T12, pages 119-128, Medical Report for Disability Support Pension of Dr Louisa Birkett
dated 9 November 2011.
In 2010, Ms Mills was diagnosed as suffering from “lumber spondylosis with spinal sterosis”.[13] Dr Birkett, Ms Mills’ general practitioner in 2011, described Ms Mills’ functional symptoms, relating to Ms Mills’ spine at that time, as:[14]
“severe back pain…numbness back of both legs; weakness of lower limbs; pain referred to ankles; present 6 days out of seven; taking a lot of analgesics”
“difficulty sitting and standing, trouble concentrating due to pain & analgesics required, decreased mobility”
“can’t do any lifting or repetitive bending & can’t stand for long”
[13] Exhibit 1, T Documents, T5, page 110, Medical Report of Dr T Smith dated 6 May 2010; Exhibit 1, T4, Radiology
CT Scan report of Dr P Walker dated 12 January 2010.
[14] Exhibit 1, T Documents, T12, pages 120-121, Medical Report for Disability Support Pension of Dr Louisa Birkett
dated 9 November 2011.
In relation to Ms Mills’ anxiety and depression Dr Birkett reports these conditions as “presumptive”.[15] Dr Birkett notes that Ms Mills had been under a lot of stress due to her mother’s diagnosis of cancer. As at 2011 Dr Birkett reports that Ms Mills was not receiving any treatment.[16] I note that these conditions had not been diagnosed by a psychiatrist or clinical psychologist.
[15] Exhibit 1, T Documents, T12, page 122, Medical Report for Disability Support Pension of Dr Louisa Birkett dated 9
November 2011.
[16] Exhibit 1, T Documents, T12, page 122, Medical Report for Disability Support Pension of Dr Louisa Birkett dated 9
November 2011.
A Job Capacity Assessment, conducted face-to-face with Ms Mills on 11 November 2011 by a Physiotherapist and Registered Nurse reported that Ms Mills suffered from:-[17]
·Spinal disorder (chronic lower back pain with lumbosacral disc protrusion) which was found to be fully diagnosed, fully treated and fully stabilised
·Anxiety, stress and depression which was found to be fully diagnosed
·Asthma which was found to be fully diagnosed, fully treated and fully stabilised
·Hypertension which was found to be fully diagnosed, fully treated and fully stabilised
·Polycystic ovarian syndrome which was found to be fully diagnosed, fully treated and fully stabilised
·Morbid obesity which was found to be fully diagnosed
[17] Exhibit 1, T Documents, T13, pages 129-138, Job Capacity Assessment report dated 15 November 2011.
At the JCA on 11 November 2011 Ms Mills reported that:[18]
·She had been referred to counselling for her depression
·Her polycystic ovarian syndrome had minimal functional impact
·Her weight excess impacted on her back pain
·Her hypertension was managed with medication
·Her asthma had minimal functional impact
[18] Exhibit 1, T Documents, T13, pages 129-138, Job Capacity Assessment report dated 15 November 2011.
In April 2015, four years after Ms Mills became a recipient of the DSP, Dr Nigel Brennan provided a Medical Review for Disability Support Pension.[19] Dr Brennan reported that:-[20]
·Ms Mills had been his patient since 1 February 2015 and a patient of his practice since 2006
·The diagnosis of Ms Mills’ lower back pain is presumptive and that Ms Mills failed to attend orthopaedic specialist reviews in 2010, 2011, 2012, and 2014.
·Ms Mills suffered from no other medical conditions of relevance to her DSP.

[19] Exhibit 1, T Documents, T18, pages 145-154, Medical Review for Disability Support Pension by Dr Nigel Brennan

dated 14 April 2015.

20Exhibit 1, T Documents, T18, pages 148, Medical Review for Disability Support Pension by Dr Nigel Brennan dated 14 April 2015.

From the material provided in Exhibit 1, it is clear that Ms Mills failed to attend orthopaedic specialist review for her spinal condition as reported by Dr Brennan.[21]
[21] Exhibit 1, T Documents, T7-T10, pages 113-116, Letters from Qld Health confirming Ms Mills failure to attend
specialist outpatient appointments in 2011; T14-T15, pages 139-140, Letters from Qld Health confirming Ms Mills failure to attend specialist outpatient appointments in 2012; T17, page 143, Letters from Qld Health confirming Ms Mills had been removed from a waiting list for a specialist outpatient appointments for failing to provide requested information.
At the hearing before me Ms Mills also confirmed that she had not had orthopaedic specialist review for her spinal condition. Ms Mills is currently on a waiting list for orthopaedic specialist review at Toowoomba Hospital.[22]
[22] Exhibit 2, Respondent’s Statement of Facts and Contentions, Annexure A, Letter from Toowoomba Hospital to Ms
Mills dated 8 July 2016.
In September 2015 Ms Mills underwent a radiology scan of her spine, hips and knees. Dr Yeo, the radiologist reported:[23]
[23] Exhibit 1, T Documents, T20, page 161, Radiology Report of Dr Yeo dated 16 September 2015.
·In relation to Ms Mills lumber spine:
There is facet joint arthrosis at L5/S1, indeterminate age anterior wedge fracture of T11 vertebral body, and no pars defects are demonstrated
·In relation to Ms Mills pelvis and hips:
Pelvis is mildly rotated to the left, minimal marginal osteophytic lipping is noted at the superior acetabular margin on each side
·In relation to Ms Mills knees:
There are no erosions or joint effusions
A further JCA was conducted on 16 November 2015 by a Registered Psychologist and Accredited Exercise Physiologist (2015 JCA Report). The 2015 JCA Report reported that Ms Mills suffered from:[24]
·Intervertebral disc disorder which was found to be fully diagnosed but not fully treated and not fully stabilised
·Depression which was found to be not fully diagnosed, not fully treated and not fully stabilised
·Hypertension which was found to be fully diagnosed, fully treated and fully stabilised
·Polycystic ovarian syndrome which was found to be fully diagnosed, fully treated and fully stabilised
[24] Exhibit 1, T Documents, T23, pages 172-177, Job Capacity Assessment report dated 23 November 2015.
In the Letter from Basic Rights Queensland, completed on 22 January 2016 by Dr Rawa Fadheel, Dr Fadheel reports that Ms Mills has advance osteoarthritis of the lumbar spine, hips and shoulders.[25] Dr Fadheel reports Ms Mills is unable to walk 100 meters without rest or use public transport due to severe back pain and unstable gait.[26]
[25] Exhibit 1, T Documents, T25, pages 180-183, Letter from Basic Rights Queensland to Ms Mills completed on 22
January 2016 by Dr Rawa Fadheel.
[26] Exhibit 1, T Documents, T25, pages 180-183, Letter from Basic Rights Queensland to Ms Mills completed on 22
January 2016 by Dr Rawa Fadheel.
The Respondent accepts that Ms Mills had impairments for the purposes of section 94(1)(a) at the Qualification Date.[27]
[27] See Exhibit 2, Respondent’s Statement of Facts and Contentions, para 5.8.
Conclusion on Impairment
Whilst acknowledging that Ms Mills suffers from asthma, hypertension and polycystic ovarian syndrome, there is no evidence to establish that those conditions affected her functional capacity at the Qualification Date. In particular, I note:-
·In 2011 Dr Birkett reported that these conditions cause minimal or limited impact on Ms Mills’ ability to function.[28]
·No mention is made of these conditions in the Medical Review for Disability Support Pension by Dr Nigel Brennan dated 14 April 2015.[29]
·No mention is made of these conditions in Ms Mills’ application for review by this Tribunal (where she only refers to a “broken spine”).[30]
[28]         Exhibit 1, T Documents, T12, pages 119-128, Medical Report for Disability Support Pension of Dr Louisa Birkett
dated 9 November 2011.
[29]         Exhibit 1, T Documents, T18, pages 145-154, Medical Review for Disability Support Pension by Dr Nigel Brennan
dated 14 April 2015.
[30]         Exhibit 1, T Documents, T1, pages 1-2, Ms Mills’ Application for Second Review of Decision dated 11 May 2016.
In light of the medical evidence available I conclude that at the Qualification Date Ms Mills suffered a spinal Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
DOES MS MILLS’ IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[31] They are function based[32] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[33]
[31] Determination, s 4(2) and 5(2)(a).
[32] Determination, s 5(2)(b) and (c).
[33] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[34]
(a)Ms Mills’ condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[34] Determination, see s 6(3).
Ms Mills’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[35]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[35] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[36] the following must be considered:[37]
(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.
[36] For the purposes of ss 6(4)(a) and (b) of the Determination.
[37] Determination, see s 6(5).
A condition is fully stabilised[38] if:[39]
(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[40]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[38] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[39] Determination, see s 6(6).
[40] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
However, before applying the Tables I must first consider Ms Mills’ medical history, in relation to the condition causing the impairment.[41]
[41] Determination, see s 6(2).
I will now consider Ms Mills’ spinal Impairment.
Lumbar Spine Impairment
Is Ms Mills’ lumbar spine impairment permanent and likely to persist for at least 2 years?
In September 2015 Ms Mills underwent a radiology scan of her spine, hips and knees. The Dr Yeo, the radiologist reported that, in relation to Ms Mills lumber spine:[42]
There is facet joint arthrosis at L5/S1, indeterminate age anterior wedge fracture of T11 vertebral body, and no pars defects are demonstrated
[42] Exhibit 1, T Documents, T20, page 161, Radiology Report of Dr Yeo dated 16 September 2015.
On 14 April 2015 Dr Brennan reported that:[43]
(a)Ms Mills’ spinal condition was presumptive;
(b)Ms Mills’ lower back pain “reduces [her] ability to perform most functions, when it is present”.
(c)Ms Mills was being treated with ibuprofen; and
(d)future planned treatment included specialist orthopaedic referral.
[43] Exhibit 1, T Documents, T18, pages 145-154, Medical Review for Disability Support Pension by Dr Nigel Brennan
dated 14 April 2015.
Dr Brennan reported that this condition was expected to persist for more than 24 months and that the effect of this condition on Ms Mills’ ability to function within the next 2 years was likely to fluctuate.[44]
[44] Exhibit 1, T Documents, T18, pages 145-154, Medical Review for Disability Support Pension by Dr Nigel Brennan
dated 14 April 2015.
The JCA undertaken on 23 November 2015 concluded that Ms Mills’ lumbar spine impairment was fully diagnosed but was not fully treated and not fully stabilised.[45] The JCA noted that Ms Mills had failed to attend numerous offers of specialist review.[46]
[45] Exhibit 1, T Documents, T 23, page 174, Job Capacity Assessment report dated 23 November 2015.
[46] Exhibit 1, T Documents, T 23, page 174, Job Capacity Assessment report dated 23 November 2015.
The Respondent contends that Ms Mills’ lumbar spine impairment was not fully diagnosed, not fully treated and not fully stabilised in the Qualification Period.[47]
[47] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 January 2016, para 6.30.
At the hearing before me Ms Mills confirmed that she had not had orthopaedic specialist review for her spinal condition. She said she failed to attend the reviews arranged for her because she did not receive the mail advising her of the appointments because her family threw it out. Ms Mills is again on a waiting list for orthopaedic specialist review at Toowoomba Hospital.[48]
[48] Exhibit 2, Respondent’s Statement of Facts and Contentions, Annexure A, Letter from Toowoomba Hospital to Ms
Mills dated 8 July 2016.

Based on the medical evidence available in the Qualification Period I find that Ms Mills suffers from back pain resulting from facet joint arthrosis at L5/S1 and indeterminate age anterior wedge fracture of T11 vertebral body. However, I find that Ms Mills’ condition has not been fully treated or fully stabilised as, during the Qualifying Period, from the evidence available because:
(a)she has never received specialist orthopaedic review;
(b)it is uncertain whether:
(i)Ms Mills would likely benefit from further treatment, physical therapy and specialist consultation;
(ii)any further reasonable treatment is likely to result in significant functional improvement to a level enabling Ms Mills to undertake work in the next 2 years; and
(iii)Ms Mills has undertaken reasonable treatment for the condition.
I therefore find that, as at the Qualification Date, Ms Mills’ lumbar spine impairment is not permanent and no Impairment Rating can be assigned.
Other Conditions
Hypertension
In November 2011 Dr Birkett reported that Ms Mills suffers from hypertension and that it was causing minimal or limited impact on her ability to function.[49] In April 2015 Dr Brennan also reports that Ms Mills suffers from hypertension.[50]
[49] Exhibit 1, T Documents, T12, pages 119-128, Medical Report completed by Dr Birkett dated 9 November 2011.
[50] Exhibit 1, T Documents, T18, page 153, Medical Report completed by Dr Brennan dated 14 April 2015.
The JCA reported that Ms Mills confirmed that her hypertension was well controlled by medication.[51]
[51] Exhibit 1, T Documents, T23, page 173, Job Capacity Assessment report dated 23 November 2015.
The Respondent agrees that Ms Mills’ hypertension is fully diagnosed, fully treated and fully stabilised.[52]
[52] See Exhibit 2, Respondent’s Statement of Facts and Contentions, para 6.77.
I find that that Ms Mills’ hypertension is fully diagnosed, fully treated and fully stabilised.
However, there is no evidence to establish that those conditions affect Ms Mills’ functional capacity or caused impairment during the Qualification Period.
As referred to above:-
·In 2011 Dr Birkett reported that this condition causes minimal or limited impact on Ms Mills’ ability to function.[53]
·No mention is made of this condition in the Medical Review for Disability Support Pension by Dr Nigel Brennan dated 14 April 2015.[54]
·No mention is made of this condition in Ms Mills’ application for review by this Tribunal (where she only refers to a “broken spine”).[55]
[53]         Exhibit 1, T Documents, T12, pages 119-128, Medical Report for Disability Support Pension of Dr Louisa Birkett
dated 9 November 2011.
[54]         Exhibit 1, T Documents, T18, pages 145-154, Medical Review for Disability Support Pension by Dr Nigel Brennan
dated 14 April 2015.
[55]         Exhibit 1, T Documents, T1, pages 1-2, Ms Mills’ Application for Second Review of Decision dated 11 May 2016.
Therefore, I find that no Impairment Rating can be assigned for this condition.
Asthma
In November 2011 Dr Birkett reported that Ms Mills suffers from asthma and that it was causing minimal or limited impact on her ability to function.[56] In April 2015 Dr Brennan makes no mention of Ms Mills suffering from asthma.[57]
[56] Exhibit 1, T Documents, T12, pages 119-128, Medical Report completed by Dr Birkett dated 9 November 2011.
[57] Exhibit 1, T Documents, T18, page 153, Medical Report completed by Dr Brennan dated 14 April 2015.
The JCA in November 2015 also made no mention of Ms Mills suffering from asthma.[58] However, the JCA in November 2011 reported that Ms Mills asthma condition was fully diagnosed, fully treated and fully stabilised and being treated with Ventolin as required.[59]
[58] Exhibit 1, T Documents, T 23, page 173, Job Capacity Assessment report dated 23 November 2015.
[59] Exhibit 1, T Documents, T 13, page 133, Job Capacity Assessment report dated 15 November 2011.
The Respondent agrees that Ms Mills’ hypertension is fully diagnosed, fully treated and fully stabilised.[60]
[60] See Exhibit 2, Respondent’s Statement of Facts and Contentions, para 6.77.
I find that that Ms Mills’ hypertension is fully diagnosed, fully treated and fully stabilised.
However, as referred to above:-
·In 2011 Dr Birkett reported that this condition causes minimal or limited impact on Ms Mills’ ability to function.[61]
·No mention is made of this condition in the Medical Review for Disability Support Pension by Dr Nigel Brennan dated 14 April 2015.[62]
·No mention is made of this condition in Ms Mills’ application for review by this Tribunal (where she only refers to a “broken spine”).[63]
[61]         Exhibit 1, T Documents, T12, pages 119-128, Medical Report for Disability Support Pension of Dr Louisa Birkett
dated 9 November 2011.
[62]         Exhibit 1, T Documents, T18, pages 145-154, Medical Review for Disability Support Pension by Dr Nigel Brennan
dated 14 April 2015.
[63]         Exhibit 1, T Documents, T1, pages 1-2, Ms Mills’ Application for Second Review of Decision dated 11 May 2016.
Therefore, I find that no Impairment Rating can be assigned for this condition.
Polycystic ovarian syndrome
In November 2011 Dr Birkett reported that Ms Mills suffers from polycystic ovarian syndrome and that it was causing minimal or limited impact on her ability to function.[64] In April 2015 Dr Brennan also reports that Ms Mills suffers from polycystic ovarian syndrome.[65]
[64] Exhibit 1, T Documents, T12, pages 119-128, Medical Report completed by Dr Birkett dated 9 November 2011.
[65] Exhibit 1, T Documents, T18, page 153, Medical Report completed by Dr Brennan dated 14 April 2015.
The JCA in November 2015 reported that Ms Mills confirmed that this condition was well controlled by medication.[66]
[66] Exhibit 1, T Documents, T 23, page 173, Job Capacity Assessment report dated 23 November 2015.
The Respondent contends that that Ms Mills’ polycystic ovarian syndrome is not fully diagnosed, not fully treated and not fully stabilised on the basis that there is some suggestion that there may be link between this condition and Ms Mills’ obesity.[67] Ms Mills is currently on a waiting list to be reviewed by The Princess Alexandra Hospital Endocrine Complex Obesity Service.[68]
[67] See Exhibit 2, Respondent’s Statement of Facts and Contentions, paras 6.50 – 6.57.
[68] See Exhibit 2, Respondent’s Statement of Facts and Contentions, Annexure A, Letter from Princess Alexandra
Hospital Endocrine Complex Obesity Service to Ms Mills dated 6 July 2016.
Even if it is determined by specialist review that Ms Mills’ polycystic ovarian syndrome is being impacted by her obesity,[69] this does not mean that the condition has not been diagnosed. What it means is that the condition is not fully stabilised and may not be fully treated.
[69] Exhibit 1, T5, page 110, Medical Report of Dr T Smith dated 6 May 2010.
I also note however that there is no evidence to establish that this condition affect Ms Mills functional capacity or caused impairment during the Qualification Period. Dr Birkett and Dr Brennan reports that this condition causes minimal or limited impact on Ms Mills’ ability to function.[70]
[70] Exhibit 1, T Documents, T2, pages 119-128, Medical Report completed by Dr Birkett dated 9 November 2011;
Exhibit 1, T Documents, T18, page 153, Medical Report completed by Dr Brennan dated 14 April 2015.
I find therefore that Ms Mills’ polycystic ovarian syndrome is fully diagnosed but not fully treated and not fully stabilised because, as at the Qualification Date:
(a)she has not received specialist review;
(b)it is uncertain whether:
(i)Ms Mills would likely benefit from further treatment and specialist consultation;
(ii)any further reasonable treatment is likely to result in significant functional improvement to a level enabling Ms Mills to undertake work in the next 2 years; and
(iii)Ms Mills has undertaken reasonable treatment for the condition.
Further, as referred to above:-
·In 2011 Dr Birkett reported that this condition causes minimal or limited impact on Ms Mills’ ability to function.[71]
·No mention is made of this condition in the Medical Review for Disability Support Pension by Dr Nigel Brennan dated 14 April 2015.[72]
·No mention is made of this condition in Ms Mills’ application for review by this Tribunal (where she only refers to a “broken spine”).[73]
[71]         Exhibit 1, T Documents, T12, pages 119-128, Medical Report for Disability Support Pension of Dr Louisa Birkett
dated 9 November 2011.
[72]         Exhibit 1, T Documents, T18, pages 145-154, Medical Review for Disability Support Pension by Dr Nigel Brennan
dated 14 April 2015.
[73]         Exhibit 1, T Documents, T1, pages 1-2, Ms Mills’ Application for Second Review of Decision dated 11 May 2016.
Therefore, I find that no Impairment Rating can be assigned for this condition.
Obesity
In November 2011 Dr Birkett reported that Ms Mills suffers from weight excess and that, while it was having a severe impact on Ms Mills’ back pain, it was well managed and causing minimal or limited impact on Ms Mills’ ability to function.[74]
[74] Exhibit 1, T Documents, T12, pages 119-128, Medical Report completed by Dr Birkett dated 9 November 2011.
The JCA in November 2011 reported that this condition was not fully treated and not fully stabilised and may also be linked to a pituitary tumour condition suffered by Ms Mills.[75]
[75] Exhibit 1, T Documents, T 13, page 133, Job Capacity Assessment report dated 15 November 2011.
The Respondent contends there is insufficient evidence to determine whether Ms Mills’ obesity is fully treated and fully stabilised.[76]
[76] See Exhibit 2, Respondent’s Statement of Facts and Contentions, para 6.63.
There is no evidence of any treatment being used for this condition. However I note that Ms Mills is currently on a waiting list to be reviewed by The Princess Alexandra Hospital Endocrine Complex Obesity Service.[77]
[77] See Exhibit 2, Respondent’s Statement of Facts and Contentions, Annexure A, Letter from Princess Alexandra
Hospital Endocrine Complex Obesity Service to Ms Mills dated 6 July 2016.
I find that Ms Mills’ obesity condition has been fully diagnosed, however it has not been fully treated or fully stabilised as, as at the Qualifying Date:
(a)she has not received specialist review;
(b)it is uncertain whether:
(i)Ms Mills would likely benefit from further treatment, physical therapy and specialist consultation;
(ii)any further reasonable treatment is likely to result in significant functional improvement to a level enabling Ms Mills to undertake work in the next 2 years; and
(iii)Ms Mills has undertaken reasonable treatment for the condition.
Therefore, no Impairment Rating can be assigned.
Anxiety and Depression
In relation to Ms Mills’ anxiety and depression in November 2011 Dr Birkett reported these conditions as “presumptive”.[78] Ms Mills had been under a lot of stress due to her mother’s diagnosis of cancer. As at 2011 Dr Birkett reports that Ms Mills and was not receiving any treatment.[79] Dr Brennan did not report on this condition in his November 2015 report.[80]
[78]         Exhibit 1, T Documents, T12, page 122, Medical Report for Disability Support Pension of Dr Louisa Birkett dated 9
November 2011.
[79]         Exhibit 1, T Documents, T12, page 122, Medical Report for Disability Support Pension of Dr Louisa Birkett dated 9
November 2011.
[80]         Exhibit 1, T Documents, T18, page 153, Medical Report completed by Dr Brennan dated 14 April 2015.
Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of the condition 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). Without such a diagnosis no Impairment Rating can be assigned.
The JCA in November 2015 noted that there is no sufficient corroborating evidence and the condition has not been diagnosed by a psychiatrist or clinical psychologist and therefore is not fully diagnosed and not fully treated and not fully stabilised.[81]
[81] Exhibit 1, T Documents, T 23, page 173, Job Capacity Assessment report dated 23 November 2015.
Ms Mills confirmed these conditions had not been diagnosed by a psychiatrist or clinical psychologist at the hearing before me.
As a result I find that Ms Mills’ mental health condition was not fully diagnosed, not treated or not fully stabilised. Therefore, no Impairment Rating can be assigned.
Shoulder Pain and Heart Condition
At the hearing before me Ms Mills’ said she also suffers from shoulder pain and has a “heart condition”. However, there was no medical evidence presented concerning these conditions. As a result I am unable to consider them further.
CONCLUSION
I have concluded that Ms Mills’ impairments are not permanent therefore it is unnecessary for me to assign an Impairment Rating or to consider whether Ms Mills had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c).
Ms Mills’ impairments were not permanent, as defined by section 6(4) of the Determination, at the Qualification Date and as a result she does not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Grigg

........................[Sgd]................................................
Associate
Dated 13 October 2016

Date of hearing 12 September 2016

Applicant By phone

Solicitors for the Respondent Clayton Utz

[2016] AATA 805

13 October 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Division	GENERAL DIVISION
File Number	2016/2664
Re	Lesley Mills
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Member D Grigg
Date	13 October 2016
Place	Brisbane

Date of hearing	12 September 2016
Applicant	By phone
Solicitors for the Respondent	Clayton Utz