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

Mudaliar and Secretary, Department of Social Services (Social services second review) [2020] AATA 420 (6 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1852
Re:Akshara Mudaliar
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:6 March 2020
Place:Brisbane

The decision under review is affirmed.
................................[SGD].........................................
Senior Member P J Clauson AM
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 Qualification Period – decision under review is 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
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Senior Member P J Clauson AM
6 March 2020
INTRODUCTION

Ms Akshara Mudaliar (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) on 5 April 2017 in which she claimed she suffered the following conditions:[1]
·Trigeminal neuralgia;
·Plantar fasciitis; and
·Depression.
[1] Exhibit 1, T21, pages 104-134.
The Applicant’s claim was rejected on 14 January 2018 on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables.[2] This decision was reviewed by an Authorised Review Officer (“ARO”) and affirmed on 19 September 2018.[3] The ARO found that the Applicant’s conditions could not be considered permanent.[4]
[2] Exhibit 1, T27, pages 150-151.
[3] Exhibit 1, T33, pages 163-168.
[4] Exhibit 1, T33, pages 163-168.
The Applicant sought first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (“ATT1”) who affirmed the decision to reject the Applicant’s claim for DSP on 26 February 2019.[5] AAT1 found in affirming the decision of the ARO that:
(a)the Applicant’s trigeminal neuralgia condition was fully diagnosed, but not fully treated and fully stabilised;[6]
(b)the Applicant’s depression condition was not fully diagnosed;[7] and
(c)there was no need for AAT1 to consider the Applicant’s inability to work.[8]
[5] Exhibit 1, T2, pages 3-7.
[6] Exhibit 1, T2, page 6, paragraph 20.
[7] Exhibit 1, T2, page 7, paragraph 25.
[8] Exhibit 1, T2, page 7, paragraph 26.
Member Grehan found that the Applicant’s conditions had a total impairment rating of zero points, and consequently, the Applicant was ineligible to receive the DSP.
The Applicant sought a second-tier review of the AAT1 decision by the General Division of this Tribunal by way of an application dated 1 April 2019.[9]
[9] Exhibit 1, T18, pages 93 -101; T21, page 104.
The Applicant appeared by telephone at the hearing with assistance from her husband.
The issue to be determined by the Tribunal is whether the Applicant was qualified to receive the DSP at the date she made her claim (5 April 2017) or within 13 weeks thereafter (5 July 2017) (“the Qualification Period”).
BACKGROUND FOR THE CLAIM
The Applicant had participated in a Job Capacity assessment on 15 February 2016, some time before her claim was lodged.[10] That report noted that the Applicant was 19 to 20 weeks pregnant, had been suffering facial pain for about three years on her right side, and that her motivation for the interview was to get a letter for Centrelink to explain her inability to work because of her chronic pain. This report found that the recommendations regarding the Applicant’s job capacity had not changed since her employment services assessment dated 21 October 2015[11] which indicated a baseline work capacity of 8 to 14 hours per week and a temporary work capacity of zero to seven hours per week to allow appropriate reviews with a Neurologist to explore further treatment options. It was further considered the Applicant would have a capacity for work within two years, with specific interventions, of 15 to 22 hours per week.
[10] Exhibit 1, T18, pages 93 -101.
[11] Exhibit 1, T14, pages 83-88.
The Applicant was 36 years of age when she lodged her claim for DSP.
The Applicant included the following conditions in her DSP claim:[12]
(1) TRIGEMINAL NEURALGIA
Under specialist’s care at a Redcliffe Hospital
(2) Plantar fasciitis
Seeing podiatrist
(3) Depression
Antidepressant, psychotherapy
[12] Exhibit 1, T21, page 130.
Trigeminal Neuralgia – Facial Pain Condition
The Applicant began to complain of severe pain on the right side of her face following the extraction of a wisdom tooth in 2013.[13]
[13] Exhibit 1, T6, page 68, T7, page 69.
On 28 August 2013, the Applicant underwent a CT scan. In his report, Dr Todd Moesbergen concluded that:[14]
No cause for the patient’s temporal discomfort is specifically identified.
[14] Exhibit 1, T5, page 66.
There was some dental follow-up on this complaint by the Brisbane Dental Hospital and Adult Specialist Services, as evidenced by the referral letter from Ms Arabelle Clayden, Senior Dental Specialist (Oral Medicine), dated 4 April 2014 to the Neurologist, Specialist Outpatients Department, Redcliffe Hospital.[15] This letter referenced the expert opinion of Ms Clayden that in relation to the chronic facial pain, “[t]here is no dental cause for this”.
[15] Exhibit 1, T6, page 68.
On 28 May 2014, Dr Swapna Devadula, Chief Medical Registrar, reported that the Applicant had “no cranial nerve deficits” and that “the site of the pain does not fit a trigeminal or glossopharyngeal neuralgia category”.[16] Dr Devadula also stated in that report “[s]he was reviewed by Dr Rob Henderson and we are keeping our options open at this stage” and also indicated that a brain MRI had been arranged.[17]
[16] Exhibit 1, T9, pages 74-75.
[17] Exhibit 1, T9, pages 74-75.
An MRI report from Dr David Wong dated 8 June 2014 opined:[18]
1. MRI brain is within normal limits for age
2. No CP angle lesion is identified.
3. Mucous retention cyst in base right maxillary antrum.
[18] Exhibit 1, T10, page 76.
On 27 August 2014, the Applicant was reviewed by Dr Stephen Walsh and Dr Henderson. Dr Henderson noted that he “thought a diagnosis of trigeminal neuralgia is certainly most likely”, but the Applicant was recommended to “see an ENT Surgeon for an opinion”.[19]
[19] Exhibit 1, T11, page 77.
Following the end of the Qualification Period, the Applicant was receiving medical attention for the facial pain condition. Notwithstanding the timing of these medical contacts being post-Qualification Period, the Tribunal considers that they are significant when considering whether, at the Qualification Period, the Applicant’s facial pain condition was fully diagnosed, fully treated and fully stabilised.
The Applicant underwent an MRA and MRI procedure of the brain on 17 April 2018 approximately one year after claiming DSP. The report concluded:[20]
1No evidence of impingement upon the trigeminal nerve.
2The pituitary gland is flattened with an expanded sella.
3The optic nerve sheaths appear normal.
[20] Exhibit 1, T31, page 161.
The report also made note that a neurology review was required.
On 21 November 2017, Dr Adam reported that the Applicant continued to complain of chronic pain and that he was “struggling to manage her chronic pain”.[21] Dr Adam referred the Applicant to Dr Norman Ma, Consultant Neurosurgeon, who specialised in facial pain. Dr Adam also requested referrals to both the Pain Clinic and ENT but “neither of them materialised”.[22]
[21] Exhibit 1, T25, page 147.
[22] Exhibit 1, T25, page 147.
On 22 May 2018, Dr Robert Adam, Consultant Neurologist, reported:[23]
… there must be a significant psychological and psychiatric component to [the Applicant’s] pain and it is very atypical and we have not found any surgical cause for hit. [sic]
[23] Exhibit 1, T32, page 162.
On 8 February 2019, Dr Khaing Khaing Mon, General Practitioner, reported that regarding the Applicant’s condition:[24]
It was initially diagnosed by Trigeminal Neuralgia (TNG) by Neurologist at Redcliffe Hospital but after being reviewed by different specialists, they did not think it was TGN but have not diagnosed with any title.
[24] Exhibit 1, T40, page 184.
Dr Mon, on 22 March 2018, referred the Applicant to Dr Edward Hsu, a Maxillofacial Specialist, for assessment. The referral letter referred to “facial pain in R preauricular area after tooth extraction 4-5 years ago”. The following history was also noted in the referring letter:[25]
Seeing neurologist at Redcliffe Hospital. Taking Duloxetine and carbamazepine with no effect.
Pain [spread] to L side and became constant. Developed depression.
Was referred to ENT as suggested by neurologist. Seen by ENT early 03/18 who asked me to refer her to maxillofacial team for possible botox injection.
[25] Exhibit 1, T30, page 155.
On 22 May 2018, Dr Adam discharged the Applicant from the Neurology Clinic and left the Applicant “in the hands of the pain clinic and Dr Ma”.[26]
[26] Exhibit 1, T32, page 162.
Dr Sarah Grigg, Registrar at the Metro North Hospital and Health Service, prepared a report on 27 September 2018 after seeing the Applicant.[27] In that report, Dr Grigg noted that the imaging with the Neurosurgical Department at the Royal Brisbane and Women’s Hospital was returned as normal. She also noted that she had been discharged by the Neurology Department and had been subsequently referred to the Pain Clinic. The Applicant told Dr Grigg that she had yet to hear anything from the Pain Clinic at that time. Dr Grigg further noted that the Applicant had made an appointment in July to join part of their group sessions before continuing further with the Pain Management Team and had cancelled that appointment as well as another one that she had made for August. Dr Grigg advised the Applicant and her husband of the importance of attending any and all appointments that are offered. Dr Grigg also noted “[a]t this stage she is certainly a complex atypical facial pain patient and I am afraid that ENT has little to offer in her management”.[28]
[27] Exhibit 1, T35. page 171.
[28] Exhibit 1, T35. page 171.
On 24 January 2019, a significant time after the Qualification Period, Dr Nigel Johnson, Maxillofacial Registrar, reported that the Multidisciplinary Pain Clinic had offered a lignocaine infusion, and the Applicant had indicated that she did not wish to proceed with the infusion. Dr Johnson also recommended “diagnostic local anaesthetic injection into the lateral pterygoid” which the Applicant also declined.[29]
[29] Exhibit 1, T39, page 182.
The Applicant was reviewed on 7 March 2019 in the Maxillofacial Clinic and she underwent a pterygoid local anaesthetic injection. However, this did not assist the Applicant and she was discharged from the Maxillofacial Clinic back to the Multidisciplinary Pain Clinic. The Maxillofacial Registrar, Dr Howard Cho, opined that it is likely that the Applicant’s facial pain “is not myofascial in nature”.[30]
[30] Exhibit 1, T42, page 189.
Plantar Fasciitis
On 4 July 2017 in a referral letter, Dr Mon noted the Applicant’s past clinical history included “plantar fasciitis (left)”, with a date given as “February 2017”.[31] Reference was repeated to this condition in several further referral letters dated 11 August 2017,[32] and on 25 January 2018.[33]
[31] Exhibit 1, T22, page 136.
[32] Exhibit 1, T24, page 143.
[33] Exhibit 1, T28, page 152.
Depression
At the hearing before the ATT1 on 26 February 2019, the Applicant advised that she was to see “a clinical Psychologist next month [March 2019]”.[34]
[34] Exhibit 1, T2, page 6.
The Applicant signed a Mental Health Treatment Plan on 8 January 2019,[35] which reported that the Applicant suffered from depression and chronic pain.[36]
[35] Exhibit 1, T37, page 174-178.
[36] Exhibit 1, T37, page 174.
Dr Mon reported the Applicant had been seen once by a pain psychologist and needed to “see local clinical psychologist for her depression and pain”.[37] Dr Mon recommended cognitive behavioural therapy and planned to review the Applicant “after 6 sessions”.[38]
[37] Exhibit 1, T37, page 175.
[38] Exhibit 1, T37, page 177.
On 8 January 2019, 17 months after the claim for DSP was lodged, Dr Mon referred the Applicant to Dr Contarino, Clinical Psychologist.[39]
[39] Exhibit 1, T38, page 179.
On 7 May 2019, Dr Angelo Contarino, Clinical Psychologist, confirmed that the Applicant was seen three times under the Mental Health Care Plan dated 8 January 2019.[40]
[40] Exhibit 8, Report of Dr Contarino to Department of Human Services.
Other Condition - Hypothyroidism
The Tribunal notes that on 24 January 2019, a significant time past the Qualification Period, Dr Johnson noted the Applicant’s “other medical history is significant for hypothyroidism for which she takes Oroxine”.[41]
[41] Exhibit 1, T39, page 182.
A thyroid function test dated 7 August 2017, once more outside of the Qualification Period, reported “[f]ree T4 is recommended to determine the degree of hypothyroidism”[42] and on 10 December 2018, a further test reported “[t]he pattern of normal free T4 with a mildly elevated TSH is suggestive of subclinical hypothyroidism”.[43]
[42] Exhibit 1, T24, page 144.
[43] Exhibit 1, T36, page 172.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. The three primary requirements are that:
(a)the Applicant has a physical, intellectual or psychiatric impairment;[44]
(b)the Applicant’s impairment is of 20 points or more under the Impairment Tables;[45] and
(c)the Applicant has a continuing inability to work.[46]
[44] Section 94(1)(a) of the Act.
[45] Section 94(1)(b) of the Act.
[46] Section 94(1)(c) of the Act.
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”).
The Determination provides a general set of principles that must be considered when applying the Impairment Tables.[47] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations.[48] They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[49] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[50]
[47] Section 5(1)-(2) of the Determination.
[48] Section 5(2) of the Determination.
[49] Section 5(2)(d) of the Determination.
[50] Section 6(1) of the Determination.
Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if: the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[51] In order for a condition to be considered “permanent” it must:[52]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[51] Section 6(3) of the Determination.
[52] Section 6(4) of the Determination.
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next 2 years.[53]
[53] Section 6(5) of the Determination.
A condition is fully stabilised if:[54]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[54] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[55]
[55] Section 6(7) of the Determination.
An impairment rating can only be assigned in accordance with the rating requirement for each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[56] A rating cannot be assigned in excess of the maximum rating specified in each Table.[57]
[56] Section 11(1) of the Determination.
[57] Section 11(1) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides that qualification for DSP and assessment of the relevant impairment ratings are determined as at the date of claim, being 5 April 2017. The exception arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified 13 weeks following the date of claim.[58] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[59]
[58] Sections 41 and 42, clauses 3 and 4(1), Schedule 2, Part 2 of the Administration Act.
[59] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
QUALIFICATION PERIOD
The Qualification Period for considering whether the Applicant qualified for DSP in this matter is from 5 April 2017, the date the Applicant lodged her claim for DSP, and the 5 July 2017, 13 weeks later.
ISSUES
The issues for the Tribunal to consider are:
·Whether during the Qualification Period, the Applicant had a physical, intellectual or psychiatric condition which was fully diagnosed, fully treated and fully stabilised;
·Whether at the Qualification Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
·Whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
·Whether the Applicant has a continuing inability to work.
CONSIDERATION
Did the Applicant suffer a physical, intellectual or psychiatric impairment – section 94(1)(a) of the Act?

The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.[60]
[60] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 8-9.
The Applicant suffers from trigeminal neuralgia, plantar fasciitis, depression and hypothyroidism.
The Tribunal accepts that the Applicant had impairments and that section 94(1)(a) of the Act was satisfied during the Qualification Period.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
The issue to be determined by this Tribunal is whether or not, during the Qualification Period, those impairments attracted an impairment rating of 20 points or more under the Impairment Tables and,[61] if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[61] Section 94(1)(b) of the Act.
The Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and, therefore, the Applicant did not satisfy section 94(1)(b) of the Act.[62]
[62] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 9.
Trigeminal Neuralgia - Facial Pain Condition
The Respondent acknowledged that the Applicant suffered from a facial pain condition, however, asserted that, at the time the Applicant lodged a claim for DSP and during the Qualification Period, it was not fully diagnosed, fully treated and fully stabilised. The Respondent contended that the Applicant’s facial pain condition could therefore not attract any impairment rating under the Impairment Tables.
Although the Tribunal accepts that the Applicant suffers from a facial pain condition, it is necessary for this Tribunal to consider whether this condition was fully diagnosed, fully treated and fully stabilised at the Qualification Period.
The Tribunal has had regard to the material before it and the evidence provided to it by the Applicant at the hearing regarding the facial pain condition.
During her oral evidence at the hearing, the Applicant confirmed that she had suffered from facial pain since the extraction of a tooth in or about June 2013. The referral letter of Ms Arabelle Clayden to the Neurologist, Specialist Outpatients Department of the Redcliffe Hospital, is corroborative of this.[63]
[63] Exhibit 1, T6, page 68.
Prior to lodging a claim for the DSP, investigations of the Applicant’s conditions were undertaken including a CT scan on 28 August 2013[64] and examinations by Dr Devadula on 28 May 2014,[65] none of which found conclusive sources of the Applicant’s pain.
[64] Exhibit 1, T55, page 66.
[65] Exhibit 1, T55, page 66; Exhibit 1, T9, page 74.
The difficulty experienced by the medical experts in diagnosing the nature and source of the Applicant’s pain is further illustrated by the fact that an MRI of the Applicant’s brain in 2014 found that all aspects relating to this examination were within normal limits for the patient’s age.[66]
[66] Exhibit 1, T10, page 76.
While Dr Henderson noted on 27 August 2014 that he ‘thought a diagnosis of trigeminal neuralgia is certainly most likely’ the Tribunal notes that the report also advised that the Applicant should see an ENT specialist for an opinion.[67] This would indicate to the Tribunal that the certainty of diagnosis of the Applicant’s condition was not confirmed in the minds of these doctors at that particular time.
[67] Exhibit 1, T11, page 77.
The Applicant lodged her application for the DSP on 5 April 2017 and thus the Qualification Period ran from this date for 13 weeks to 5 July 2017. The Applicant had been receiving medical treatment for her facial pain condition prior to the lodgement of her DSP application on the premise held by her doctors that she was most likely suffering from trigeminal neuralgia. Dr Adam’s letter to Dr Mon, dated 7 January 2016 following his consultation with the Applicant on 22 December 2015, confirms this: ‘[t]he most effective drug for trigeminal neuralgia is usually Carbamazepine’.[68]
[68] Exhibit 1, T16, page 91.
Dr Mon also adopted this diagnosis when he reported in a Medical Certificate to Centrelink dated 14 January 2016[69] and 7 February 2017[70] the diagnosis as trigeminal neuralgia, that it was permanent and the symptoms manifested by sharp facial pain. Relevantly, these medical certificates were dated before the lodgement of the Applicant’s claim for the DSP.
[69] Exhibit 1, T17, page 92.
[70] Exhibit 1, T19, page 102.
The Tribunal notes that diagnostic tests were continuing well after the Applicant had lodged her claim for DSP. This is evidenced by the report by Radiologist Humza Karim dated 17 April 2018,[71] who conducted both MRA and MRI examinations of the Applicant’s brain. The report concluded, inter alia, that there was “… [n]o evidence of impingement upon the trigeminal nerve”. The Tribunal further notes that this examination and report occurred outside the Qualification Period.
[71] Exhibit 1, T31, page 161.
It was recommended by Dr Henderson as early as 2014 that the Applicant should be referred to ENT for examination, however, this had not occurred before or during the Qualification Period. In fact, Dr Adam noted as late as November 2017 that that referral had not taken place.[72]
[72] Exhibit 1, T25, page 147.
The Tribunal also notes the report and comments of Dr Sarah Grigg, which indicate that the process of diagnosis and treatment was ongoing in October 2018, after the Qualification Period.[73]
[73] Exhibit 1, T35, page 171.
Further doubt was cast upon the original diagnosis of trigeminal neuralgia after the Qualification Period. The report of Dr Adam 22 May 2018 indicated that there was a possible psychological component to the Applicant’s pain as no surgical cause for it was found.[74] Dr Mon also commented in a report to Centrelink dated 8 February 2019 that the initial diagnosis of trigeminal neuralgia had not been confirmed by specialists.[75] Given the post-Qualification Period date of these reports, the Tribunal considers that this provides further support for the contention that the diagnosis of the Applicant’s facial pain condition was not fully completed within the Qualification Period.
[74] Exhibit 1, T32, page 162.
[75] Exhibit 1, T40, page 184.
It is clear to the Tribunal that the Applicant suffers from a facial pain condition and that this condition impacts her life on a day-to-day basis. The Applicant confirmed during the hearing that her husband is effectively her carer and assistant.
Unfortunately, notwithstanding the circumstance, her condition has, as yet, not been diagnosed as to its cause. In fact, the treatment, which has been administered to the Applicant or proposed since the facial pain first manifested, would indicate that the medical professionals are, in a sense, conducting a process of elimination to try and establish the fundamental cause of the Applicant’s pain condition. These range from a variety of prescribed medications, scans and a lateral pterygoid injection to the face as late as 2019. The last mentioned treatment was administered at the Royal Brisbane and Women’s Hospital Maxillofacial Clinic by Dr Howard Cho and, in a report back to Dr Mon dated 7 March 2019, he remarked that, inter alia, ‘[t]he procedure was unable to have any positive effect on the applicant’s pain’ and he discharged her back into the care of the Multidisciplinary Pain Clinic.[76] Significantly, Dr Cho opined that the facial pain ‘is not myofascial in nature’.[77]
[76] Exhibit 1, T42, page 189.
[77] Exhibit 1, T42, page 189.
Therefore, the medical evidence relating to the Applicant’s facial pain, which continued beyond the Qualification Period, confirm that her condition was not fully diagnosed during the Qualification Period. It therefore follows that the facial pain condition cannot be fully treated or fully stabilised as at the Qualification Period. The Tribunal therefore considers that the condition is not capable of being rated under the Impairment Tables or attracting impairment points.
Plantar Fasciitis Condition
There is limited evidence before the Tribunal in relation to the Applicant’s planter fasciitis condition in the Qualification Period. In a referral letter dated 4 July 2017 Dr Mon mentioned plantar fasciitis in the Applicant’s medical history.[78] The Tribunal notes that further references to the condition were noted in referral letters of 11 August 2017[79] and of 25 January 2018.[80] There is no corroborative evidence before the Tribunal to indicate that this condition was fully diagnosed, fully treated and fully stabilised. As there is insufficient evidence for the Tribunal to conclude that this condition was permanent the Tribunal is therefore unable to attribute any impairment points to this condition.
[78] Exhibit 1, T22, page 136.
[79] Exhibit 1, T24, page 143.
[80] Exhibit 1, T28, page 152.
Depression Condition
The Respondent submitted that the Applicant’s mental health condition of depression was not fully diagnosed, treated and stabilised as at the Qualification Period, noting the Applicant’s medical evidence in their submissions.
The first mention of a depression condition is made in a Medical Certificate form dated 7 February 2017.[81] Dr Mon indicated that the Applicant was ‘[t]o be referred to a Psychologist’. The Respondent further noted that Dr Adams reported on 21 November 2017 that the Applicant had ceased her antidepressant medication.[82]
[81] Exhibit 1, T19, page 102.
[82] Exhibit 1, T25, page 147.
Further support for the Respondent’s contention was provided by Dr Mon’s referral of the Applicant to the Morayfield Psychology Centre on 25 January 2018 for an opinion and management of ‘ongoing severe anxiety and depression’, noting the Applicant’s medication at Duloxetine and that the Applicant needed referral to a Psychiatrist for medical review.[83] The Tribunal also notes that the Applicant signed up for the Mental Health Treatment Plan on 8 January 2019 and the Plan described the Applicant as suffering from depression and chronic centralisation pain.[84] Dr Mon proposed that the Applicant receive cognitive behaviour therapy with a review to follow after six sessions.[85] On the same date, he also referred the Applicant to a Clinical Psychologist.[86] The Tribunal notes that the referrals and treatment plan occurred after the Qualification Period. Thus, the Tribunal accepts the Respondent’s contention that at the Qualification Period, the mental health condition was not fully diagnosed, fully treated and fully stabilised.
[83] Exhibit 1, T28, page 152.
[84] Exhibit 1, T37, page 174-178.
[85] Exhibit 1, T37, page 177.
[86] Exhibit 1, T38, page 179.
The Tribunal notes the Applicant gave evidence to the AAT1 that she was to see a Clinical Psychologist in March 2019.[87] The Tribunal also notes the report of Dr Contarino dated 7 May 2019 which confirms that the Applicant had attended three sessions under a Mental Health Care Plan dated 8 January 2019 and comments upon the benefit of the Applicant participating in further pain management treatment.[88] This appointment with the clinical psychologist and the report are, however, dated beyond the Qualification Period relevant to these proceedings.
[87] Exhibit 1, T2, page 6.
[88] Exhibit 8, Report of Dr Contarino to Department of Human Services.
The Tribunal has no corroborative evidence before it of a diagnosis by a qualified medical practitioner together with evidence from either a Psychiatrist or a Clinical Psychologist, as required under Table 5 of the Impairment Tables as at the Qualification Period.
Given the clinic history of this condition, the Tribunal is unable to conclude that, at the Qualification Period, namely 5 April 2017 to 5 July 2017, the depression condition was fully diagnosed, fully treated and fully stabilised. The Tribunal has no corroborative evidence before it that, during the Qualification Period, the condition had any functional impact upon the Applicant. Therefore, the Tribunal is unable to assign an impairment rating to this condition under the Impairment Tables.
As the Applicant does not have a total of 20 or more impairment points under the Tables, the Tribunal finds that she does not satisfy the requirement under section 94(1)(b) of the Act.
Other Condition - Hypothyroidism
The Tribunal notes the Applicant was being medicated for the condition of hypothyroidism with “Oroxine”. However, as medical evidence relating to this condition falls outside of the Qualification Period and given that there is no medical evidence supporting a level of impairment from this condition within the relevant period, it is not open to the Tribunal to assign any impairment rating to the condition.
Continuing Ability to Work
Given that the Applicant does not reach 20 points or more during the Qualification Period, it is not necessary for the Tribunal to consider whether she satisfies section 94(1)(c) of the Act.
Additional Observation
The Applicant has failed to reach 20 points or more via this application. I note her conditions may have worsened or become fully diagnosed, fully treated and fully stabilised since the Qualification Period for this DSP claim. It is open to the Applicant to lodge a fresh application for DSP with additional and more recent medical evidence.
DECISION
Accordingly, the decision under review is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

................................[SGD]........................................
Associate
Dated: 6 March 2020

Date of hearing: 3 December 2019

Advocate for the Applicant: Mr Sachin Mudaliar

Solicitors for the Respondent: Mr David McLaren
Department of Human Services

[2020] AATA 420

6 March 2020

Key Legal Topics

Areas of Law

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Date of hearing:	3 December 2019
Advocate for the Applicant:	Mr Sachin Mudaliar
Solicitors for the Respondent:	Mr David McLaren Department of Human Services