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

[2021] AATA 3813

Munns and Secretary, Department of Social Services (Social services second review) [2021] AATA 3813 (19 October 2021)

Division:GENERAL DIVISION

File Number:2020/8462            

Re:Jacob Munns  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:19 October 2021

Place:Brisbane

The decision under review is affirmed.

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

Member D Mitchell        

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (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

Walker and Secretary, Department of Social Services [2021] AATA 1767

REASONS FOR DECISION

Member D Mitchell

19 October 2021

INTRODUCTION

1. On 18 August 2020, Mr Jacob Munns (the Applicant) lodged a claim for the disability support pension (DSP).[1] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work as “comprehensive right shoulder damage, complex pain, random loss of sensation in right arm/right hand, incontinence”.[2]

   [1]     Exhibit 1, T Documents, T26, pages 147-179, Claim for Disability Support Pension.

   [2]     Exhibit 1, T Documents, T26, page 173, Claim for Disability Support Pension.

2. The Applicant’s claim was rejected on 10 September 2020,[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.

   [3]     Exhibit 1, T Documents, T31, pages 192-193, Centrelink Notice: Rejection of DSP Claim.

3. The Applicant sought review of that decision and on 6 October 2020 an Authorised Review Officer (ARO) affirmed the decision.[4]

   [4]     Exhibit 1, T Documents, T36, pages 199-203, Authorised Review Officer Decision and Notes.

4. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 7 December 2020 the SSCSD affirmed the decision to refuse his claim for DSP.[5]

   [5]     Exhibit 1, T Documents, T2, pages 5-9, Decision of the SSCSD.

5. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 21 December 2020.[6]

   [6]     Exhibit 1, T Documents, T1, pages 1-4, Application for Review.

6. On 11 October 2021, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.

7. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.

   THE LAW

8. The relevant law in assessing a person’s qualification for DSP is found in the
   Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant.

9. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:

   1.does the Applicant have a physical, intellectual or psychiatric impairment;[7]

   2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[8] and

   3.does the Applicant have a continuing inability to work?[9]

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

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

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

10. Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[10]

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

11. Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[11] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.

    [11]    Sections 6(3) and (4) of the Determination.

12. To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered:

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

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

    (c)whether treatment is continuing or planned in the next two years.[12]

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

13. A condition is considered to be fully stabilised if:[13]

    (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.

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

14. 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.[14]

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

15. The Impairment Tables 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.[15] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[16]

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

    [16]    Section 8(1) of the Determination.

16. In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support (POS); and

    (b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and

    (c)be unable to participate in a training activity during the next 2 years or 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 POS within the next 2 years.

17. A person’s impairment is considered to be 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.[17]

    [17]    Section 94(3B) of the Act.

18. The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[18]

    [18]    Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.

19. Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[19]

    [19]    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].

    RELEVANT PERIOD

20. The Relevant Period in this matter commences on 18 August 2020, being the date the Applicant lodged his claim for DSP, and ends 13 weeks later on 17 November 2020. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.

    ISSUES

21. Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[20] The Respondent considers the Applicant’s impairments for the purpose of the claim for DSP in question consist of a right shoulder condition[21] and Chronic Regional Pain Syndrome (CRPS).[22]

    [20]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 6, paragraph 33.

    [21]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 7-9, paragraphs 34-41.

    [22]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 9-10, paragraphs 42-50.

22. The remaining issues for the Tribunal to consider are:

    1.whether within the Relevant Period the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and

    2.       if so, did the Applicant have a continuing inability to work?

    CONSIDERATION

23. The Tribunal notes that in the material before it, in addition to the right shoulder and CRPS conditions, the Applicant also referred to incontinence, mental health and skin conditions (collectively other conditions) and to poor balance. At Hearing the Applicant told the Tribunal that the poor balance issue should be taken into consideration in relation to his shoulder condition and that the other conditions should be disregarded in relation to this present application. The Applicant acknowledged that the evidence before the Tribunal in relation to those conditions was limited.

24. Having reviewed the evidence before it, and noting the Applicant’s concession, the Tribunal is satisfied that the Applicant’s other conditions were not fully diagnosed, fully treated, and fully stabilised during the Relevant Period. Accordingly, these conditions are not considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points for these conditions.

25. The Tribunal accepts that the Applicant’s right shoulder condition impacts upon his balance, however notes that the Applicant’s poor balance does not constitute a condition on its own.

26. The question that remains before the Tribunal pursuant to section 94(1)(b) of the Act is whether, within the Relevant Period, the Applicant’s right shoulder and CRPS conditions attracted 20 points or more under the Impairment Tables.

    Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

    Right Shoulder Condition

27. Based on the medical evidence before the Tribunal there is no doubt that the Applicant’s right shoulder condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period. This point is not in contention.[23] In particular the Tribunal notes the reports of             Dr Brett Todhunter, specialist in anaesthesia and pain medicine,[24] Dr Ash Moaveni, orthopaedic surgeon,[25] Dr Sarah Coll, orthopaedic surgeon,[26] and Dr Philip Haynes, consultant occupational physician.[27] 

    [23]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 7, paragraph 34.

    [24]    Exhibit 1, T-Documents, T5, page 73-74, Report of Dr Todhunter.

    [25]    Exhibit 1, T-Documents, T7, page 77, Surgical report of Dr Moaveni.

    [26]    Exhibit 1, T-Documents, T11, page 85; T20, page 117; T21, page 118, Reports of Dr Coll, Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, Attachment A, DMA report dated 2 October 2020, pages 1-3.

    [27]    Exhibit 1, T-Documents, T15, pages 97-104, Report of Dr Haynes.

28. At Hearing the Applicant contended that his right shoulder condition should be assigned 10 points on Table 2 of the Impairment Tables. The Applicant sought to rely on previous decisions of the SSCSD[28] and ARO and the report of Ms Melena Musumeci, occupational therapist[29] in making this contention.

    [28]    Exhibit 1, T-Documents, T23, pages 124-128, Decision of the SSCSD dated 9 July 2019.

    [29]    Exhibit 1, T-Documents, T24, pages 130-141, Report of Melena Musumeci.

29. At Hearing the Applicant told the Tribunal that he had difficulty doing all of the descriptors set out for the 10 point rating on Table 2 of the Impairment Tables.

30. On cross-examination the Applicant told the Tribunal that:

    ·He did not have a diagnosis in relation to his left shoulder however, there is a biomechanical relationship between the left and right shoulder. He said that utilising the left shoulder pulls on the right shoulder.

    ·He has lived alone for a number of years.

    ·The food he prepares for himself is mainly noodles or butter and cheese sandwiches.

    ·He walks to the local shop which is about a 5-10 minute walk each way.

    ·At the shop he is able to get the things he needs to buy, put them on the checkout counter, get his card in and out of his wallet, pay for the groceries, pack his backpack and walk home. When he gets home, he unpacks the groceries into the top shelve of his fridge and into a cupboard.

    ·He has a desktop computer and uses it for short periods throughout the day. He does not see the value in the television.

    ·He is responsible for his own cleaning and washing. He washes about every 3-4 days and hangs the washing over chairs, a walking frame and cupboard doors in his laundry. He sweeps for about 5 minutes a week.

    ·His bathroom has the shower over the bath and has twist taps at both waist and knee height.

    ·He is able to wash his hair himself, it is long, about halfway down his back, and he brushes it regularly.

    ·He uses his teeth to unscrew lids of bottles.

    ·The functional assessment provided by Ms Musumeci dated 27 April 2020 was also a true reflection of his functionality during the Relevant Period.

31. The Respondent contended that the Applicant’s right shoulder condition could be assigned no more than 5 points on Table 2 of the Impairment Tables.[30] The Respondent referred to the report of Ms Musumeci dated 27 April 2020 which provided a detailed assessment of the Applicant’s level of function and concluded that, based on her assessments and observations, the Applicant:[31]

    a.    would not have difficulty picking up a 1 litre carton full of liquid;

    b.    would have difficulty picking up a light but bulky object requiring the use of two hands together;

    c.     had no difficulty using a pen or pencil for short durations;

    d.    could complete tasks such as doing up buttons or tying up shoelaces, but would have difficulty, and noted that assistive equipment could assist the Applicant;

    e.    could use a standard keyboard without difficulty; and

    f.   had no difficulty unscrewing and screwing the lid on a soft-drink bottle.

    [30]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 9, paragraphs 38-39.

    [31]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 8, paragraph 37.

32. At Hearing, the Respondent further contended that in considering Table 2 of the Impairment Tables it must be kept in mind that consideration is to be given to the functional impact on activities using hands or arms and, in this matter, it is only the Applicant’s right shoulder condition that can be taken into consideration in assigning a rating.

33. Relevantly, Table 2 of the Impairment Tables deals with upper limb function and provides as follows:[32]

    Table 2 – Upper Limb Function

    [32]    Impairment Table 2 – Upper Limb Function, Part 3 of the Determination. 

Introduction to Table 2

·    Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.

·    The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·    Self-report of symptoms alone is insufficient.

·    There must be corroborating evidence of the person’s impairment.

·    Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;

o    a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);

• a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
• results of diagnostic tests (e.g. X-Rays or other imagery);

o    results of physical tests or assessments.

·    For the purposes of this Table upper limbs extend from the shoulder to the fingers.

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1)      The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

(1)      The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)      picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)      handling very small objects (e.g. coins);

(c)      doing up buttons;

(d)      reaching up or out to pick up objects.

10

There is a moderate functional impact on activities using hands or arms.

(1)      The person has difficulty with most of the following:

(a)      picking up a 1 litre carton full of liquid;

(b)      picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)      holding and using a pen or pencil;

(d)      doing up buttons or tying shoelaces;

(e)      using a standard computer keyboard;

(f)       unscrewing a lid on a soft-drink bottle.

1. Based on the evidence before it, the Tribunal finds that the Applicant’s right shoulder condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned an impairment rating using Table 2 of the Impairment Tables.

2. While the Tribunal accepts that the Applicant says he has difficulty doing all of the tasks set out at the 10 point descriptor of Table 2 of the Impairment Table, this is contrary to expert evidence provided by Ms Musumeci and the level of functionality he described during cross-examination. The Tribunal considers that the Applicant only met descriptors (b) and (d) in relation to the 10 point assessment under Table 2 of the Impairment Tables, which is not a majority of the descriptors. As such, based on the evidence before it, the Tribunal finds that the Applicant’s right shoulder condition can be assigned 5 points on Table 2 of the Impairment Tables. The Tribunal notes that the Applicant made reference to assignment of an impairment rating by other decision makers, however it is this Tribunal’s role to consider all of the evidence before it and make a de novo decision.

   Chronic Regional Pain Syndrome (CRPS) condition

1. The Applicant has provided a number of documents to the Tribunal in relation to CRPS, its diagnosis and affects.[33] The Tribunal does not doubt, having reviewed the material before it and having heard the Applicant’s evidence at Hearing, that he suffers constant pain associated with his right shoulder injury. The question for the Tribunal, though, is whether the Applicant’s claimed CRPS condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period.

   [33]    Exhibit 3, Various CRPS related documents submitted by the Applicant.

2. In a report dated 14 October 2015, Dr Todhunter provided the Applicant with a “provisional diagnosis of CRPS type 1 secondary to a mechanical injury to the right shoulder”.[34]

   
   

   Dr Todhunter provided the following treatment options in relation to the provisional diagnosis:[35]

   1.    He asked me about the prospects of an arthroscopic surgery to repair the labrum and excise the cyst presumably. My understating is that restoring the labrum is to stabilise the shoulder mechanically not to reduce pain perse or at least not constant neuropathic pain but rather mechanical pain in an effort to get a person functioning better. He asked me what I thought about that approach and all I can say is that there would be a 2/10 likelihood of this improving his pain considerably may be a 2/10 possibility of making his pain worse and a 6/10 likelihood of being no change in his pain long term. Evidently I am not an orthopaedic and I’m looking at it from a pain perspective in that somebody that has neuropathic pain and CRPS.

   2.    The medications you have him on in terms of Diazepam, Mersyndol Forte plus or minus Lyrica and Palexia are appropriate and reasonable.

   3.    A Ketamine infusion may reduce his neuropathic pain due to central mechanisms.

   4.    In some people who have unrelenting pain spinal cord stimulation is used but obviously that’s complex with some risk.

   5.    There is the option of a Cognitive Behavioural Pain Management Program approach trying to rehabilitate him despite his ongoing pain. This would be looking at things from a biopsychosocial view point in view of the major changes in his life causing significant psychological and emotional distress which is understandable in the circumstances.

   [34]    Exhibit 1, T-Documents, T5, page 73, Report of Dr Todhunter.

   [35]    Exhibit 1, T-Documents, T5, pages 73-74, Report of Dr Todhunter.

3. In a letter of referral dated 13 September 2016, Dr Coll noted that the Applicant presented with right arm pain and sought further testing to determine whether the Applicant had neurogenic thoracic outlet syndrome.[36]

   [36]    Exhibit 1, T-Documents, T10, page 84, Report of Dr Coll.

4. In a report dated 15 March 2017, Dr Haynes provided a diagnosis of a labral tear of the right shoulder, treated surgically, with current symptoms being that the Applicant “complains of ongoing pain around the anterior, superior and posterior aspects of the right shoulder, with marked restriction of right shoulder movement. He reported pain extending to the upper arm, forearm and hand.”[37] Dr Haynes noted that the Applicant had advised him that he had undergone investigations to exclude thoracic outlet syndrome prior to the initial surgery on 4 December 2015 and that it was not confirmed.[38] Dr Haynes did not consider that further surgical intervention was appropriate and was doubtful that pain management would cause significant improvement in the shoulder symptoms.[39]

   [37]    Exhibit 1, T-Documents, T15, page 101, Report of Dr Haynes.

   [38]    Exhibit 1, T-Documents, T15, page 99, Report of Dr Haynes.

   [39]    Exhibit 1, T-Documents, T15, page 102, Report of Dr Haynes.

5. In a letter dated 26 April 2019, Dr Coll made reference to the Applicant having a history of pain over the glenohumeral joint anteriorly and posteriorly for years.[40]

   [40]    Exhibit 1, T-Documents, T20, page 117, Report of Dr Coll.

6. In a Centrelink medical certificate dated 26 April 2019, Dr Coll provided the following:[41]

   Diagnosis 1: Chronic shoulder dislocation after surgical repair

   Symptoms: pain and instability in shoulder (right) side

   Date of onset: 1 January 2016

   Diagnosis 2: Thoracic outlet syndrome

   Symptoms: lateral upper arm pain, posterior scapular pain right side

   Date of onset: 13 September 2016

   [41]    Exhibit 1, T-Documents, T21, page 118, Medical certificate of Dr Coll.

7. A report dated 2 October 2020 was provided by Dr Mohammad, a Government-contracted doctor after undertaking a disability medical assessment of the Applicant. Dr Mohammad contacted Dr Coll and reported that on 30 September 2020 she provided a diagnosis of chronic right shoulder dislocation after surgical repair with an approximate date of diagnosis being 26 April 2019 and symptoms being pain and instability of the right shoulder.[42]

   
   

   Dr Mohammad reported that Dr Coll confirmed that:[43]

   1.    No mental health issues discussed with [her].

   2.    No impact on stamina, just instability and pain.

   3.    Fatigue – not advised to [her], unlikely to be related to shoulder pain/instability.

   [42]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, Attachment A, DMA report dated 2 October 2020, page 2.

   [43]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, Attachment A, DMA report dated 2 October 2020, page 3.

8. In a letter dated 4 June 2021, Dr Cheryl Cornelius, clinical psychologist, provided that the Applicant had been referred to her by Dr Clare Jukka, general practitioner, on 6 April 2021 for treatment of depression and stress secondary to his chronic pain.[44] Dr Cornelius provided that the Applicant had been diagnosed with Chronic Regional Pain Syndrome following a workplace injury in 2015 and indicated in assessing the Applicant that she had been provided with the following reports:[45]

   ·Dr Todhunter – dated 14 October 2015

   ·Dr Coll – dated 13 September 2016

   ·Ms Mucumeci – dated 27 April 2020.

   [44]    Exhibit 4, Letter from Dr Cornelius.

   [45]    Exhibit 4, Letter from Dr Cornelius.

9. Dr Cornelius provided that constant pain restricts the Applicant’s daily activities and impacts his ability to sleep and his mood.[46]

   [46]    Exhibit 4, Letter from Dr Cornelius.

10. At Hearing the Applicant told the Tribunal that:

    ·     

    The provisional diagnosis of CRPS made by Dr Todhunter was confirmed by Dr Coll when she diagnosed Thoracic Outlet Syndrome in a medical certificate dated

    
    

    26 April 2019.

    ·     Thoracic Outlet Syndrome is a type of CRPS and that the symptoms overlap.

    ·     If the diagnosis of CRPS and Thoracic Outlet Syndrome is in dispute, the diagnosis of chronic pain is not in dispute as many doctors have referred to this. 

    ·     His CRPS or chronic pain condition should be assigned 10 points on Table 1 of the Impairment Tables on the basis that he experiences fatigue and has difficulty performing day to day household activities such as cleaning and mowing the lawn.

    ·     The doctor who undertook the Disability Medical Assessment did not ask him about his daily living functionality so that is why he got the report of Dr Cornellius.

    ·     Dr Cornellius provided in her report that his CRPS had been ongoing since 2016 which is within the timeframe being assessed.

    ·     In relation to the treatments outlined by Dr Todhunter in his report of 14 October 2015:

    o   The medication was not a good option for him as Lyrica caused him to have a mental breakdown and Palexia is an opiate.

    o   He chose not to have a Ketamine infusion as it would deal with the pain but it is a mind affecting substance so the resulting effects would be worse.

    o   He chose not to have the spinal cord stimulation treatment as he does not want to take the risk given he had surgery and it did not help.

    o   He did not undertake a cognitive behavioural pain management program as he spoke to a counsellor and they said the best course of action was to get used to the pain as it will never go away.

    ·     He manages his pain by making peace with it – knowing it will not go away. 

    ·     Any treatment to lessen the pain requires a high level of opiates and would have an equally high impact on his daily living functionality.

    ·     

    Both CRPS and Thoracic Outlet Syndrome reflect continuing pain for more than

    
    

    3 months, which is defined as chronic pain.

    ·     No doctor has made a suggestion for treatment that was medically possible for him to undertake.

    ·     In relation to the opinion provided by Dr Coll on 30 September 2020 that his fatigue is unlikely to be attributed to his shoulder pain/instability, that Dr Coll was a shoulder specialist so he had only approached her about shoulder mechanical concerns, he did not take his mental health or fatigue issues to her as she is a surgeon.

    ·     Dr Coll diagnosed Thoracic Outlet Syndrome because it impacts on the Applicant’s blood flow and the ability to use the arm.

    ·     He has subsequently been granted the DSP with a commencement date of                   4 December 2020.

11. On cross-examination, the Applicant told the Tribunal that:

    ·He did not want to take opiates as this would impair his functionality.

    ·He did not have CBT, just counselling, one session back shortly after he had the surgery in December 2015.

12. The Respondent contended that the Applicant’s CRPS was not fully diagnosed at the Relevant Period as while Dr Todhunter provisionally diagnosed the condition, a reference to any diagnosis as ‘provisional’ is an indicator that further information is required before a formal diagnosis of a medical condition can be confidently entered.[47]

    [47]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 10, paragraph 46

13. The Respondent further contended that there is no evidence of subsequent specialist opinion confirming a CRPS diagnosis and noted that Dr Todhunter is the only medical specialist on record who actively contemplated treatment of CRPS, and in his opinion a Ketamine infusion could assist to reduce the Applicant’s neuropathic pain and a Cognitive Behavioural Pain Management Program may be of benefit. The Respondent further noted that in Walker and Secretary, Department of Social Services [2021] AATA 1767 at [42], Dr Todhunter gave evidence that “people do have improved function and less distress” as a result of pain management programs.[48]

    [48]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 10, paragraphs 46 and 48.

14. In relation to the reports of Dr Haynes and Dr Cornelius referred to above, the Respondent made the following contentions:[49]

    44.In his report dated 15 March 2017, Dr Haynes states that he is doubtful that pain management would cause significant improvement in the Applicant's shoulder symptoms. However he makes no mention of Dr Todhunter's report and it is not apparent he has been provided with, or had regard to, it. There is no evidence Dr Haynes has considered Pain Management in the context of treating CRPS or that at the time of his report the Applicant continued to experience CRPS (T15, 102).

    45.Dr Cheryl Cornelius (Clinical Psychologist) authored a report on 4 June 2021. She confirms that the Applicant was referred to her two months prior for treatment of depression secondary to chronic pain and refers to a diagnosis of CRPS following a workplace incident in 2015. Dr Cornelius identifies that she was provided with a copy of Dr Brett Todhunter's report of 14 October 2015 and refers to the Applicant's sleep being impacted by his constant pain. Discussion about symptomology refers to a person needing "routine and constant sleep patterns. When sleep patterns are interrupted a person's ability to function the next day is severely impacted'. She does not refer to any particular functional impairment to the Applicant's stamina or ability to exert himself, and instead discusses his mental health function. She opines that the Applicant's mental health symptoms secondary to chronic pain are unlikely to significantly improve in the next two years.

    [49]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 9-10 paragraphs 44-45.

15. Further, at Hearing, the Respondent contended that if the Tribunal accepts that the Applicant’s CRPS condition was fully diagnosed, that there is no objective medical evidence before the Tribunal that the treatment regime recommended by Dr Todhunter was not reasonable treatment. As such, as the Applicant has not appropriately engaged with that treatment regime, the condition cannot be considered fully treated and fully stabilised during the Relevant Period and as such, cannot be assigned an impairment rating.

16. In reviewing the medical evidence before it, the Tribunal forms the view that the Applicant’s CRPS condition was not fully diagnosed at the Relevant Period. The diagnosis provided by Dr Todhunter was a provisional diagnosis and, as such, cannot be taken on its own to be a formal diagnosis. The fact that Dr Todhunter acknowledged the Applicant’s pain and made formal treatment recommendations gives the impression that further consideration of the condition was still to be undertaken.

17. There is no corroborating specialist evidence before the Tribunal that confirms the Applicant’s assertion that a diagnosis of Thoracic Outlet Syndrome should be taken as a confirmation of Dr Todhunter’s provisional diagnosis of CRPS. Further, the diagnosis of Thoracic Outlet Syndrome made by Dr Coll as contained in the Centrelink medical certificate provides limited information in relation to diagnosis. It is noted that in her referral letter of 13 September 2016, Dr Coll is requesting further investigations of whether the Applicant suffered from Thoracic Outlet Syndrome, however no reply report or further mention was made of this condition until the medical certificate.

18. The Tribunal notes that while the Applicant sought to rely on Dr Coll’s diagnosis as confirmation of CRPS he also gave evidence indicating that it was inappropriate for her to diagnose CRPS or issues with fatigue as he had not raised them with her.

19. The documentary information[50] provided by the Applicant in relation to CRPS indicates that Thoracic Outlet Syndrome is a symptom which is taken into consideration when diagnosing CRPS. While the Applicant is seeking to use the material he submitted to justify a diagnosis of CRPS, there is simply no corroborating specialist diagnosis to that extent before the Tribunal.

    [50]    Exhibit 3, Various CRPS related documents submitted by the Applicant.

20. Further, the Tribunal acknowledges that the specialist reports before it make reference to the Applicant’s reported pain symptoms attributable to his right shoulder condition however, no reference is made to a diagnosis of Chronic Pain in the evidence before the Tribunal.

21. Even had the Tribunal accepted Dr Coll’s reference to a diagnosis of Thoracic Outlet Syndrome as either confirming a diagnosis of CRPS or chronic pain, the Tribunal notes that the treatment recommendations made by Dr Todhutner constitute reasonable treatments which have not been undertaken by the Applicant. As such, in the absence of any evidence to the contrary, the condition would not be considered fully treated and fully stabilised during the Relevant Period. For completeness, if the Tribunal was to consider that the condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period, Dr Coll is recorded as providing the opinion that the Applicant’s fatigue is unlikely to be related to his shoulder pain/instability. As such the opinion of Dr Coll, in the absence of an opinion of a pain specialist, would be preferred and a rating of no higher than zero points would be assigned to the condition under Table 1 of the Impairment Tables. Further based on the same opinion provided by Dr Coll a rating of no higher than zero points would be assigned to the Applicant’s right shoulder condition during the Relevant Period under Table 1 of the Impairment Tables.

22. The Tribunal places little weight on the report of Dr Cornelius in relation to diagnosis of CRPS or Chronic Pain as she is interpreting the information provided to her and the self-report of the Applicant at a time well outside the Relevant Period. Dr Cornelius is not a pain specialist or orthopaedic surgeon and Chronic Pain is not of itself a mental health condition.

23. Consequently, based on the evidence before it, the Tribunal is not satisfied that the Applicant’s CRPS condition (or any other pain condition) was fully diagnosed or fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

    Continuing Inability to Work

24. As the Tribunal has found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.

    CONCLUSION

25. The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

26. Based on the evidence before it, the Tribunal finds that the Applicant’s:

    ·right shoulder condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 5 points under Table 2 of the Impairment Tables; and

    ·CRPS and other conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purpose of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points for these conditions.

27. The Tribunal finds that for the purposes of section 94(1)(b) the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.

28. Accordingly, the decision under review is affirmed.

I certify that the preceding      63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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

Associate

Dated: 19 October 2021

Date of Hearing:	11 October 2021
Applicant:	By phone
Solicitors for the Respondent:	Ms Jasmine Forsyth Ms Angelica Monardez Mills Oakley