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

Murfett and Secretary, Department of Social Services (Social services second review) [2017] AATA 1620 (4 October 2017)
Division:GENERAL DIVISION
File Number:2017/1179
Re:Christopher Murfett
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg

Date:4 October 2017
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether impairment permanent - 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
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
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.
REASONS FOR DECISION
Member D K Grigg
4 October 2017
INTRODUCTION AND CLAIMS HISTORY

Mr Murfett lodged a claim for Disability Support Pension (“DSP”) on 8 March 2016 describing his medical conditions as follows:[1]
·extreme psoriasis
·no use of left arm
·major nerve damage
·chronic pain
[1] Exhibit 1, T Documents, T 20, pages 98 – 129, Mr Murfett’s Claim for DSP dated 8 March 2016.
.
The Department of Human Services (“Centrelink”) rejected Mr Murfett’s claim for DSP on the basis that his impairments were not permanent.[2]
[2] Exhibit 1, T Documents, T 31, page 168, Centrelink records dated 28 May 2016.
Mr Murfett sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”).[3] The subsequent review by the ARO was unsuccessful on the grounds that Mr Murfett’s medical conditions were not permanent or did not attract an impairment rating of 20 points.[4]
[3] Exhibit 1, T Documents, T 31, page 170, Centrelink records.
[4] Exhibit 1, T Documents, T 22, pages 138 – 143, Decision of ARO dated 27 July 2016.
Mr Murfett then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[5] The SSCSD rejected Mr Murfett’s claim and affirmed the ARO’s decision on 3 November 2016.[6]
[5] Exhibit 1, T Documents, T 25, page 150, Letter from Centrelink to Mr Murfett dated 26 August 2016.
[6] Exhibit 1, T Documents, T2, pages 8 – 14, SSCSD’s Decision and Reasons for Decision dated 3 November 2016.
Mr Murfett has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1 – 7, Mr Murfett’s Application for Review dated 1 March 2017.
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)Mr Murfett must have a physical, intellectual or psychiatric impairment;
(b)Mr Murfett’s impairment/s 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)Mr Murfett must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Murfett meets the Section 94 Requirements is the date of the claim (in this instance as at 8 March 2016),[9] unless Mr Murfett becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[10] Therefore, to qualify for DSP Mr Murfett must have met the Section 94 Requirements between 8 March 2016 and 7 June 2016 (“Qualification Period”).
[9] Exhibit 1, T Documents, T29, page 141, Centrelink records.
[10] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Murfett’s impairments after the Qualification Period can be considered but only if it “casts light on” the functional impact of the impairments during the Qualification Period.[11]
DID MR MURFETT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[11] 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”.[12]
MR MURFETT’S MEDICAL CONDITIONS
[12] Determination, s 3.
Psoriasis
Dr Thomsett reported in 2013 that Mr Murfett has had guttate psoriasis since 1987, which had been diagnosed by a dermatologist. Dr Thomsett reported that the rash had started at an early age and had been ongoing.[13]
[13] Exhibit 1, T Documents, T9, pages 67 – 77, Medical Report of Dr Thomsett dated 31 October 2013.
In May 2014 and August 2014 Dr Murphy reported that Mr Murfett had widespread psoriasis which was permanent.[14]
[14] Exhibit 1, T Documents, T 13, page 86, Medical Certificate by Dr Murphy dated 25 May 2014; T 14, page 87,
Medical Certificate by Dr Murphy dated 29 August 2014.
In February 2017 Dr Peter Kirkham, General Practitioner, (who reports that he has a Diploma in Dermatology), verified that Mr Murfett has severe extensive chronic plaque type psoriasis. Dr Kirkham reports that “psoriasis is well known to be aggravated by stress, which in his case is caused by chronic severe neuropathic pain from a previous ulnar nerve injury”.[15]
[15] Exhibit 1, T Documents, T 28,page 153, Report of Dr Kirkman dated 6 February 2017.
Left Arm Pain – Chronic Pain Syndrome
Dr Thomsett reported in 2013 that Mr Murfett had left ulnar nerve pain in his left arm since 2010, but that it had not been diagnosed by a specialist. Dr Thomsett reported that Mr Murfett had undergone surgery for axillary lymph nodes and that this complication had arisen as a result.[16]
[16] Exhibit 1, T Documents, T9, pages 67 – 77, Medical Report of Dr Thomsett dated 31 October 2013.
In January 2014 Dr Colin Jones, Acting Director of Surgery at Rockhampton Hospital reported that Mr Murfett has complained of pain since around 2009 and that upon examination he detected several glands in the axillary region and quite marked hyperaesthesia down the medial aspect of the arm to the fingers with some limitation of movement in the shoulder joint. Dr Jones said it would be necessary to obtain a neurological opinion to define exactly what is the problem.[17]
[17] Exhibit 1, T Documents, T 11, page 84, Report of Dr Jones dated 28 January 2014.
In August 2012 Dr Welstead reported that Mr Murfett had neuropathic pain in his left arm which was severe and unrelenting.[18]
[18] Exhibit 1, T Documents, T5, page 59, Medical Certificate by Dr Welstead dated 6 August 2012.
In March 2013 Dr Thomas Murphy reported that Mr Murfett had constant ulnar nerve pain down his left arm.[19]
[19] Exhibit 1, T Documents, T7, page 61, Medical Certificate by Dr Murphy dated 25 March 2013.
In February 2014 Dr Murphy reported that Mr Murfett had left upper limb neuralgia and paralysis which was permanent. Dr Murphy reported the date of onset was 15 February 2014.[20]
[20] Exhibit 1, T Documents, T 12, page 85, Medical Certificate by Dr Murphy dated 7 February 2014.
In May 2014 and August 2014 Dr Murphy reported that Mr Murfett had left ulnar nerve damage which was permanent.[21]
[21] Exhibit 1, T Documents, T 13, page 86, Medical Certificate by Dr Murphy dated 25 May 2014; T 14, page 87,
Medical Certificate by Dr Murphy dated 29 August 2014.
Mr Murfett was seen by a neurologist, Dr Mackintosh, in March 2015. Dr Mackintosh reported that his impression was that there was “no definite localising lesion to explain Christopher’s symptoms…[and that his] Symptoms [were] not meeting classical dermatomal or peripheral nerve distribution”. Dr Mackintosh recommended Mr Murfett be referred to a pain clinic for ongoing management and that it “may be worth re-trialling pregabalin with slow up titration of doses as tolerated.”[22]
[22] Exhibit 1, T Documents, T 16, Page 92, Report of Dr Mackintosh dated 16 March 2015.
In November 2015 Dr Peter Kirkham, General Practitioner, reported that Mr Murfett had chronic pain syndrome as a result of the issues in his left arm.[23]
[23] Exhibit 1, T Documents, T 17, pages 93 – 95, Report of Dr Kirkham dated 24 November 2015; T 18, page 96,
Medical Certificate of Dr Kirkham dated 24 November 2015.
In February 2016 and February 2017 Dr Peter Kirkham reported that Mr Murfett still had chronic pain syndrome as a result of the issues in his left arm.[24]
[24] Exhibit 1, T Documents, T19, page 97, Medical Certificate of Dr Kirkham dated 29 February 2016; T 27, page
152, Medical Certificate of Dr Kirkham dated 6 February 2017.
In April 2017 Dr Kirkham reported that:[25]
(a)in 2010 Mr Murfett had an attempt at axillary lymph gland removal for suspected lymphoma but that the eventual definitive diagnosis was Bartonellosis (“Cat Scratch” disease);
(b)the procedure appears to have caused axillary nerve injury with symptoms suggestive of a chronic regional pain syndrome affecting the entire arm;
(c)Mr Murfett’s pain is neuropathic in nature in an ulnar nerve distribution and he has pain radiating up to the left side of his neck;
(d)Mr Murfett’s chronic pain has caused him “significant disability” with “associated mental health issues”;
(e)Mr Murfett is currently on antidepressants;
(f)“chronic regional pain syndrome is a dreadful condition (because of chronic severe pain and disability)”;
(g)Mr Murfett has been referred to a pain clinic and the waiting list for this service is usually over a year. It is doubtful whether they will have much to offer to help his pain; and
(h)Mr Murfett has an unremitting and stubborn condition.
[25] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 22 June 2017, Annexure A, Report of Dr
Kirkman dated 7 April 2017.
Mental Health
In November 2015 Dr Kirkham reported that Mr Murfett was struggling with depression as a result of the chronic pain issues in his left arm and referred him to the mental health team at Biloela Hospital.[26] Mr Riley, a Clinical Nurse in the Mental Health Team at Biloela Hospital, confirmed that he was Mr Murfett’s case manager but does not confirm when the treatment commenced or what treatment they were providing.[27]
[26] Exhibit 1, T Documents, T 17, pages 93 – 95, Report of Dr Kirkham dated 24 November 2015.
[27] Exhibit 1, T Documents, T26,page 151, Letter from Brian Riley, Clinical Nurse, Biloela dated 16 September 2016.
In April 2017 Dr Kirkman reported that Mr Murfett’s neuropathic pain has caused associated mental health issues for which he is under the care of a local health team and currently on antidepressants.[28]
[28] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 22 June 2017, Annexure A, Report of Dr
Kirkman dated 7 April 2017.
Mr Murfett did not refer to any mental health condition in his DSP claim.
Conclusion on Impairment
The Secretary accepts that Mr Murfett suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[29]
[29] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 22 June 2017, para 4.28.
Considering the above evidence, I conclude that at the Qualification Date Mr Murfett suffered from a Psoriasis Impairment and a Left Arm Chronic Pain Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
DO MR MURFETT’S IMPAIRMENTS 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.[30] They are function based[31] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[32]
[30] Determination, s 4(2) and 5(2)(a).
[31] Determination, s 5(2)(b) and (c).
[32] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[33]
(a)Mr Murfett’s 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.
[33] Determination, see s 6(3).
Mr Murfett’s condition can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[34]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(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.
[34] 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[35] the following must be considered:[36]
(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.
[35] For the purposes of ss 6(4)(a) and (b) of the Determination.
[36] Determination, see s 6(5).
A condition is fully stabilised[37] if:[38]
(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[39]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[37] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[38] Determination, see s 6(6).
[39] For reasonable treatment see s 6(7) of the Determination.
“Reasonable treatment” for the purposes of subsection 6(6) of the Determination is treatment that (section 6(7)):
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
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.
Before applying the Tables I must first consider Mr Murfett’s medical history, in relation to the condition causing the Impairment.[40]
PSORIASIS IMPAIRMENT
[40] Determination, see s 6(2).
Diagnosis
The medical evidence referred to in paragraphs 11-28 above supports a finding that Mr Murfett’s Psoriasis Impairment has been fully diagnosed. The Secretary accepts that Mr Murfett’s Psoriasis is fully diagnosed.[41]
[41] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 22 June 2017, paragraph 4.26.
Treatment
The Secretary contends that this condition was not fully treated and stabilised during the Qualification Period.[42] The Secretary submits that there is limited corroborating medical evidence in relation to the impact and severity of the condition and that Mr Murfett is currently on a waiting list to see a dermatologist and that therefore the condition cannot be considered fully treated and fully stabilised. The Secretary also submits that UV light treatment was appropriate and reasonable treatment that Mr Murfett could have undertaken[43]
[42] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 22 June 2017, paragraph 4.26.
[43] Secretary’s Supplementary Submissions dated 4 September 2017, paras 61-65.
The medical evidence indicates that Mr Murfett has been treating his psoriasis with cream and gel treatments[44] and that the extent of its distribution and irritability varies. Further, in July 2017 Dr Kirkham provided a report to say that Mr Murfett had not responded to the usual topical treatments and exposure to UV light.[45]
[44] Exhibit 1, T Documents, T4, page 58, Medical Certificate Dr Welstead dated 1 May 2012; T9, page 73, Report of
Dr Thomsett dated 31 October 2013.
[45] Exhibit 4, Report of Dr Kirkham dated 12 July 2017.
Dr Thomsett reports that Mr Murfett’s psoriasis:[46]
(a)consists of a rash which varies in distribution and irritability and causes discomfort to Mr Murfett’s back, groin and legs;
(b)is expected to persist for more than 24 months and that the effect of this condition on Mr Murfett’s ability to function within the next 2 years will remain unchanged.
[46] Exhibit 1, T Documents, T9, pages 74 – 75, Report of Dr Thomsett dated 31 October 2013.
There is no indication that the medicated creams and gels that Mr Murfett uses to treat the condition are not reasonable treatment or that there is some other sort of treatment that Mr Murfett should be having that he has not already tried. Dr Kirkham corroborates Mr Murfett’s evidence at the hearing that he has had UV treatment in the past. The fact that Mr Murfett may go to see a specialist for a check-up does not necessarily mean the condition has not been fully treated and fully stabilised for the purposes the Act. In this regard, I note that there is no indication that any additional treatment is going to result in any significant functional improvement within the next 2 years. In fact, Dr Thomsett reports otherwise. This is a lifelong condition that will, at times, often related to Mr Murfett’s stress levels, have flare-ups. In the circumstances, I find that Mr Murfett’s Psoriasis Impairment is permanent for the purpose of the Act and an Impairment Rating can be assigned.
Using the Impairment Tables
I have to assess the level of impact of Mr Murfett’s Psoriasis Impairment against the descriptors[47] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[48]
[47] Determination, see ss 3 and 5(3).
[48] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[49]
[49] Determination, see s 6(1).

I am obliged by the Determination to take the following information into account in applying the Tables:[50]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[50] Determination, see s 7.
I must not take into account the following information in applying the Tables:[51]
(a)symptoms reported by Mr Murfett in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Murfett’s local community.
[51] Determination, see s 8.
Which Tables are appropriate are determined by:[52]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[52] Determination, see s 10(1).
If an impairment is considered as falling between two impairment 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.[53]
[53] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[54]
[54] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[55]
[55] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 14 of the Determination, which deals with Functions of the Skin, is the relevant Table.
The introduction to Table 14 provides that:
·Table 14 is to be used where the person has a permanent condition resulting in functional impairment related to disorders of, or injury to, the skin.
·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:
oa report from the person’s treating doctor;
oa report from a medical specialist (e.g. dermatologist or burns specialist) confirming diagnosis of dermatological conditions or burns;
·assessments or reports from practitioners specialising in the treatment and management of these conditions such as dermatologists, burn specialists, clinical nurse consultants or nurse practitioners. In using Table 14 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
To assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving functions of the skin.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities requiring healthy, undamaged skin.
(1)Regarding the adaptations to several daily activities that the person has to make, at least one of the following applies:
(a)the person has moderate difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. moderate allodynia) and needs to wear protective gloves for most tasks, avoid contact with all detergents and soaps, or avoid repetitive tasks involving use of the hands;
(b)the person has moderate difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);
(c)the person has moderate difficulties performing daily activities due to lesions on skin which require creams or dressings and limit movement and comfort (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);
(d)the person has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and needs to take higher than normal precautions to avoid exposure to sunlight (e.g. must wear sunscreen at all times, wear hat and other protective clothing at all times outside and should limit time spent outside in sunlight).
To assign an Impairment Rating of 5 points the evidence would need to show that there is a moderate functional impact on activities involving functions of the skin.
The Descriptors for an Impairment Rating of 5 points are:
(1)Regarding the minor adaptations to some daily activities that the person has to make, at least one of the following applies:
(a)the person has minor difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia) and may need to wear protective gloves for some tasks, apply protective cream to the hands, or limit repetitive tasks involving use of the hands;
(b)the person has minor difficulties performing activities involving use of other parts of the body due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia);
(c)the person has minor difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications or past history of skin cancers) and needs to take higher than normal precautions to limit exposure to sunlight.
Evidence Identifying the Loss of Function
An Employment Services Assessment Report in 2013 reports that Mr Murfett said his psoriasis impacts on his walking and clothing use on his lower limbs.[56]
[56] Exhibit 1, T Documents, T8, page 63, Employment Services Assessment Report dated 9 April 2013
A Job Capacity Assessment was conducted with Mr Murfett by telephone on 11 May 2016 by a registered occupational therapist. The JCA reported that Mr Murfett said the condition causes discomfort on his back, groin and legs. Dr Thomsett also reports that Mr Murfett’s psoriasis rash varies in distribution and irritability and causes discomfort to Mr Murfett’s back, groin and legs.[57]
[57] Exhibit 1, T Documents,T21, pages 130-137, Job Capacity Assessment Report dated 18 May 2016..
Evidence indicates that this condition has impacted on Mr Murfett’s ability to work at times.[58]
[58] Exhibit 1, T Documents, T4, page 58, Medical Certificate by Dr Welstead dated 1 May 2012.
In February 2017 Dr Kirkham confirmed that Mr Murfett’s psoriasis is severe, extensive and chronic.[59]
[59] Exhibit 1, T Documents, T 28, Report of Dr Kirkman dated 6 February 2017.
Dr Kirkham provided a report on 12 July 2017 and indicated that in his opinion a 5 point impairment rating was appropriate.[60]
[60] Exhibit 4, Report of Dr Kirkman dated 12 July 2017.
In the Secretary’s original written submissions, the Secretary submitted that, in the event I found this condition to be permanent, an appropriate impairment rating would be 10 points.[61] However, at the hearing the Secretary said 5 points was an appropriate rating given Dr Kirkham’s assessment. The Secretary confirmed that submission in supplementary submissions.[62]
[61] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 22 June 2017, para 4.30
[62] Secretary’s Supplementary Submissions dated 4 September 2017, para 66.
At the hearing Mr Murfett gave the following evidence regarding how his psoriasis affects him:
·He has psoriasis in his groin and armpits
·He cannot sit for long periods
·It can be difficult for him to change gears while driving
·Summer makes it worse
·He avoids showering because of pain
I find that the corroborating medical evidence, particularly that of Dr Kirkham, supports an Impairment Rating of 5 points.
LEFT ARM PAIN – CHRONIC PAIN SYNDROME
In August 2012 Dr Welstead reports that Mr Murfett was in severe pain and psychological sequelae as a result of his neuropathic left arm pain and that all analgesics had failed.[63]
[63] Exhibit 1, T Documents, T5, page 59, Medical Certificate of Dr Welstead dated 6 August 2012.
In May 2014 Dr Murphy reports that Mr Murfett had an appointment at the neurosurgical department at the Royal Brisbane Hospital for assessment and treatment.[64] In August 2014 Dr Murphy reported that Mr Murfett was treating the condition with analgesics.[65]
[64] Exhibit 1, T Documents, T 13, page 86, Medical Certificate of Dr Murphy dated 27 May 2014.
[65] Exhibit 1, T Documents, T 14, page 87, Medical Certificate Dr Murphy dated 29 August 2014.
The Neurosurgeon, Dr Mackintosh, reported in March 2015 that:[66]
(a)his impression was that there was “no definite localising lesion to explain Christopher’s symptoms… Symptoms not meeting classical dermatomal or peripheral nerve distribution”;
(b)Mr Murfett should be referred to a pain clinic for ongoing management;
(c)it may be worth re-trialling pregabalin with slow up titration of doses as tolerated;
(d)there are no obvious lower motor neuron signs with no wasting or fasciculations;
(e)Mr Murfett had normal tone and reflexes on the left forearm and normal power in all muscle groups;
(f)Mr Murfett was reluctant to elevate his left shoulder but was able to hold it in position on passive elevation.
[66] Exhibit 1, T Documents, T 16, Page 92, Report of Dr Mackintosh dated 16 March 2015.
The JCA reported that Mr Murfett said he thought it was pointless to go to a pain management clinic as he felt that they would only tell him what he already knew and he had already worked out how to manage his pain to do things.[67]
[67] Exhibit 1, T Documents, T 21, page 131, JCA report dated 18 May 2016.
Between November 2015 and February 2017 Dr Kirkham reported that Mr Murfett was still taking medication to deal with his chronic pain.[68]
[68] Exhibit 1, T Documents, T 18, page 96, Medical Certificate of Dr Kirkham dated 24 November 2015; T 19, page
97, Medical Certificate of Dr Kirkham dated 29 February 2016; T 27, page 152, Medical Certificate of Dr Kirkham dated 6 February 2017.
In July 2017 Dr Kirkham reported that Mr Murfett was reviewed by Dr Flanagan, Consultant Psychiatrist with an interest in pain management, and he concurred that Mr Murfett suffers from chronic regional pain syndrome.[69] Dr Kirkham reports that Mr Murfett:
(a)has tried analgesics, anti-inflammatories, nerve blocking agents and anti-depressants with little or no benefit since 2010;
(b)has had some input from the Biloela Hospital Mental Health Team;
(c)Mr Murfett cannot afford private pain management and lives over 600 km from the nearest specialist pain clinic in Brisbane;
(d)he has spoken to Dr Flanagan and with all the conventional treatments having already been tried, there is no further treatment likely to result in a significant functional improvement in the next 2 years.[70]
[69] Exhibit 4, report of Dr Kirkham dated 12 July 2017.
[70] Exhibit 4, report of Dr Kirkham dated 12 July 2017.
From Dr Mackintosh’s report it would appear that the underlying reason for Mr Murfett’s left arm neuropathic pain is not known. It is also clear that no neurologist has confirmed a diagnosis of chronic pain syndrome. To be a permanent condition for the purposes of the Determination, the condition must have been fully diagnosed by “an appropriately qualified medical practitioner”. Dr Kirkham, who seems to have made the diagnosis of chronic pain syndrome, is a General Practitioner, not a specialist and not an expert in chronic pain conditions.
Mr Murfett referred the Tribunal, in his written submissions, to the National Institute of Neurological Disorders and Stroke (NINDS) Publication (January 2017) (“NINDS Publication”) on complex regional pain syndrome.[71] It provides that there is no specific test that can confirm chronic regional pain syndrome and that its “diagnosis is based on a person’s medical history, and signs and symptoms that match the definition”. In the circumstances, given how long Mr Murfett has complained of pain with no other underlying pathology, I am prepared to find that Mr Murfett has been fully diagnosed.
[71] Exhibit 3, Submissions of Mr Murfett pages 28-31.
However, the issue is whether Mr Murfett has had “reasonable treatment”. The definition of reasonable treatment section 6(7) of the Determination requires not only that treatment be available in a location that is reasonably accessible but also that any treatment be reliably expected to result in a substantial improvement in functional capacity and have a high success rate.
The treatment recommended by Dr Mackintosh, was that Mr Murfett be referred to a pain management clinic, and commence pregabalin. I note that this is in accordance with the Western Australia Therapeutic Advisory Group (WATAG) Neuropathic Pain Guidelines 2017, referred to by the Secretary, which points out that:[72]
(a)Neuropathic pain is often refractory or inadequately managed by common analgesics; in particular paracetamol and NSAIDs [non steroidal anti-inflammatory drugs] are usually ineffective;
(b)Patients with neuropathic pain [should] be referred to a pain specialist when second-line treatments have failed;
[72] Secretary’s Supplementary Submissions dated 4 September 2017, Attachment B.
Dr Kirkham says there are no further reasonable treatments, yet Mr Murfett has not attended a specialist pain clinic, as recommended by his neurologist. Dr Kirkham reported that the waiting list for the nearest specialist pain clinic was over 18 months and not reasonably accessible to Mr Murfett. The Secretary has identified specialist pain management services can be accessed through the public health at no cost to the patient and that the Queensland Government's publically available information in relation to outpatient clinics show that 94% of patients referred in category 3 (the least urgent cases) are seen within 365 days of being added to the waiting list.[73] The Secretary submits that people like Mr Murfett, who reside in remote or rural locations in Queensland, are able to be treated via local outpatient clinics through 'tele health' facilities, after attending an initial "in person" assessment in Brisbane and that travel assistance subsidies are available through the Queensland government for patients in regional areas to attend specialist treatment. Mr Murfett lives 600km away from Brisbane.
[73] Secretary’s Supplementary Submissions dated 4 September 2017, Attachment D.
The information regarding the accessibility of pain clinic treatment provided by the Secretary does not persuade me that it meets the criteria of a treatment “available at a location reasonably accessible to the person” as required in section 6(7) of the Determination given:
(a)Mr Murfett lives 600km from Brisbane;
(b)the time it would take to travel to Brisbane for that appointment;
(c)that there is no evidence that tele.health is appropriate treatment for someone with chronic regional pain syndrome; and
(d)the pain Mr Murfett suffers travelling to Brisbane.
However, Mr Murfett has not engaged in the recommended pharmacological treatment.[74] Dr Kirkham reports that he has spoken to Dr Flanagan and all the conventional treatments have already been tried. It is not clear to what he is referring and there is no report from Dr Flanagan setting out his findings, opinion, recommendations or prognosis. Mr Murfett told the Tribunal that he had tried pregabalin but it was of no benefit and made his psoriasis worse. However, there is no corroborating evidence that Mr Murfett had trialled pregabalin or that it exacerbated his psoriasis.
[74] Secretary’s Supplementary Submissions dated 4 September 2017, Attachment C.
There is no medical evidence before the Tribunal that pharmacological treatment is inappropriate. Nor is there is a compelling reason for Mr Murfett to not undertake the recommended treatment.[75]
[75] Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Jansen [2008]
FCAFC 48; Tlonan and Secretary Department of Social Security [1997] AATA 30.
The NINDS Publication refers to a variety of “often used” therapies to treat this condition including rehabilitation and physical therapy, psychotherapy and medications.[76] Mr Murfett told the Tribunal he had tried exercising for 2 years before applying for DSP but it did not alleviate his pain and that the only thing that helps is heavy painkillers and marijuana and that he manages it himself. However, there is no corroborating evidence, as required by the Determination, of Mr Murfett’s exercise trial, or any evidence of psychotherapy treatment being trialled. Further, the Pharmaceutical Benefits Scheme patient summary (which provides details of all scripts filled by Mr Murfett under the pharmaceutical benefits scheme between 31 August 2013 and 31 August 2017) shows that he has not filled any scripts for pregabalin.[77]
[76] Exhibit 3, Submissions of Mr Murfett pages 28-31.
[77] Secretary’s Supplementary Submissions dated 4 September 2017, Attachment C.
At the hearing Mr Murfett told the Tribunal he had begun seeing Dr Flanagan in May 2017, which is nearly a year after the Qualification Period. However, Medicare records do not disclose any consultations at all with Dr Flanagan (for which a Medicare benefit has been claimed), either prior to or subsequent to the Qualification Period.[78]
[78] Secretary’s Supplementary Submissions dated 4 September 2017, Attachment B.
Even if Dr Kirkham’s reporting of Dr Flanagan’s opinion is accurate, there is no indication that his opinion is referrable to the Qualification Period or “casts light on” the functional impact of the impairment on Mr Murfett during the Qualification Period.[79]
[79] 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].
Mr Murfett told the Tribunal that Dr Kirkham’s July 2017 report was meant to describe his conditions during the Qualification Period. Yet Dr Flanagan would not have been able to comment on Mr Murfett’s condition as during the Qualification Period because, according to Mr Murfett, Dr Flanagan only began consulting with Mr Murfett in May 2017 (which is 11 months after the Qualification Period).
Based on the evidence available I am unable to find that Mr Murfett’s Left Arm Chronic Pain Syndrome is fully treated and stabilised. Therefore, I find that this condition is not permanent for the purposes of the Act and an Impairment Rating cannot be assigned.
OTHER CONDITIONS – MENTAL HEALTH AND BRAIN IMPAIRMENT
In relation to Mr Murfett’s depression, I note that Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health 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. While the Tribunal accepts that Mr Murfett had attended the Mental Health Team at Biloela Hospital, there is no evidence of any diagnosis having been made, or treatment that has been provided. There is no evidence that Mr Murfett has been diagnosed with a mental health impairment by either a clinical psychologist or psychiatrist. As a result, no impairment rating can be assigned in relation to Mr Murfett’s mental health condition. I also note that Mr Murfett’s evidence and Dr Kirkham’s evidence is that Mr Murfett’s mental health issues are associated with his chronic pain. Therefore, until such time as Mr Murfett’s chronic pain is fully treated and stabilised, it is unlikely that any mental health condition he has will be stabilised.

Dr Kirkham also refers in his July 2017 report to Mr Murfett having a brain function impairment which affects Mr Murfett’s planning, concentration, problem solving and behaviour regulation.[80] Dr Kirkham refers to Mr Murfett having had some issues with behaviour control when engaging with Centrelink. He is currently prohibited, as a result of aggressive conduct, from attending his local Centrelink office in person and is only able to contact a nominated Centrelink officer by telephone.[81] Mr Murfett also injured his right forearm in 2012 when he put his arm through the glass door of his then doctor’s surgery.[82]
[80]         Exhibit 4, Report of Dr Kirkham dated 12 July 2017.
[81]         Exhibit 7, Letters from Centrelink to Mr Murfett regarding service arrangements dated 26 July 2016, 19 October
2016 and 8 June 2017.
[82]         Exhibit 1, T Documents, T21, page 132, JCA Report dated 18 May 2016.
However, there is no evidence of:
(a)a clear diagnosis of a brain impairment or any medical test results supporting such a diagnosis;
(b)any appropriate specialist diagnosis or review;
(c)any treatment having been undertaken for the condition; and
(d)Mr Murfett’s aggressive behavior being a result of a cognitive impairment.
In these circumstances, I am unable to consider this condition permanent for the purpose of the Act and therefore an impairment rating cannot be assigned.
WERE MR MURFETT’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act.
I have found that Mr Murfett’s permanent Impairments only attract an Impairment Rating of 5 points and therefore he does not satisfy section 94(1)(b) of the Act.
DID MR MURFETT HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Mr Murfett’s Impairments did not attract an impairment rating of 20 points therefore it is unnecessary for me to consider whether Mr Murfett had a “continuing inability to work” (as defined in section 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
CONCLUSION
Mr Murfett’s claim fails. His impairments are either not permanent or if permanent did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period. As a result, he does not qualify for DSP during the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 92 (ninety - two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 4 October 2017

Date of hearing:

Date last submissions received:

24 August 2017

11 September 2017

Applicant: By Telephone

Advocate for the Respondent: Ms Jacky Vetter

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1620

4 October 2017

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Appeal

Date of hearing: Date last submissions received:	24 August 2017 11 September 2017
Applicant:	By Telephone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Department of Human Services