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

Obaidi and Secretary, Department of Social Services (Social services second review) [2018] AATA 2968 (17 August 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5219
Re:Alaa Obaidi
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:17 August 2018
Place:Melbourne

The Tribunal affirms the decision under review.
..........[sgd]..............................................................
Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – whether qualified – fully diagnosed, treated and stabilised – whether impairments attract rating of 20 points or more under the Impairment Tables – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Secondary Materials
Social Security (Tables for the Assessment of Work – related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
R CAMERON, SENIOR MEMBER
INTRODUCTION

This is an application by Mr Obaidi (“the Applicant”) on 29 September 2016 for review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) on 12 September 2016 to reject the Applicant’s claim for the Disability Support Pension (“DSP”). The application was heard on 15 May 2018. The Applicant was self-represented. The Respondent was represented by Mr Cameron Munro from the Department of Human Services.
The Applicant was granted DSP from 4 February 2010.
An Authorised Review Officer (“ARO”) of the Secretary, Department of Social Services (“the Respondent”) conducted a review of the Applicant’s entitlement to the DSP. The review process commenced on 7 March 2016 when the Respondent served on the Applicant a notice under section 63 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”).
In the course of the review process, following service of the notice under section 63 of the Administration Act, the Applicant completed a Centrelink Medical Report – Disability Support Pension Review (“DSP Review”) on 15 March 2016. In the DSP Review, the Applicant was requested to list any disabilities, illnesses or injuries from which he was suffering. His response identified various conditions described as “right wrist/ shoulder/ knee, neck, lower back, (limited range of motion), chronic pain syndrome, insomnia, depression, PTSD and anxiety.[1]
[1] Document T 20 of the Section 37 Documents (“T documents”).
As part of the DSP Review, the Applicant’s treating general practitioner, Dr Gavan Martyn, completed a medical report on 21 March 2016.[2]. The Tribunal will make further reference to this medical report from Dr Martyn later in these reasons.
[2] Document T 22 of the T documents.
Following the receipt of the medical report from Dr Martyn, a Job Capacity Assessment Report (“JCAR”) was prepared by a registered psychologist and a physiotherapist on 4 May 2016.[3] The Tribunal will say more about the JCAR later in these reasons but it is useful to note that the authors of it identified the following conditions:
(a)Musculo-skeletal Disorder – Condition: Musculo-skeletal injuries to the Applicant’s right wrist (fracture in a previous car accident), Rotator Cuff injury on the right shoulder (arthroscope and repair to shoulder in 2007 and injury on the right knee requiring an arthroscope in 2011); and
(b)Psychol/Psychiatric Disorder – Other Condition: Post Traumatic Stress Disorder, low mood, anxiety chronic pain and insomnia.
[3] Document T 22 of the T documents.
The JCAR expressed an opinion that the Applicant had a baseline work capacity of 8 – 14 hours per week and a capacity for work of 15 – 22 hours per week within two years with intervention.
Following completion of the JCAR, the Respondent made a decision on 9 May 2016 to cancel the Applicant’s DSP. The notice of cancellation of the DSP reveals that the Respondent reached this decision on the grounds that the Applicant had been assessed as having an impairment rating of less than 20 points under the Social Security (Tables for the Assessment of Work – Related Impairment for Disability Support Pension) Determination 2011 ("the Impairment Tables").
The Applicant requested that the decision to cancel his entitlement to the DSP be reviewed by an ARO of the Respondent. On 6 June 2016 the ARO found that the initial decision on 9 May 2016 to cancel the Applicant’s entitlement to the DSP was correct. The ARO affirmed the initial decision to cancel the DSP because the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables and did not have a continuing inability to work. The ARO relied on the opinions expressed in the JCAR to conclude that the Applicant had the capacity to undertake light skilled work of at least 15 hours per week in the next two years. Further, the ARO reached their decision on the additional ground that the Applicant’s medical condition would not prevent him from undertaking a training activity so as to prepare him for alternative work within the subsequent two years.
On 15 June 2016 the Applicant applied to AAT1 for review of the decision made by the ARO on 6 June 2016.
On 12 September 2016, AAT1 affirmed the decision of the ARO on the grounds that the Applicant had not provided sufficient evidence to satisfy the requirements of section 94 (1) (b) of the Social Security Act 1991 (Cth) (“the Act”).
On 29 September 2016 the Applicant applied to this Tribunal for a review of the AAT1 decision.
RELEVANT LEGISLATION
There are several sections of the Act relevant to this application.
(c)Section 27 (3) provides:
(3) Review of qualification for disability support pension
If:
(a) a person is receiving disability support pension; and
(b) the Secretary gives the person a notice (the assessment notice) under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
the Secretary, in assessing the person’s qualification for that pension, must apply the instrument in force under section 26 of this Act on the day the assessment notice was given.
(d)Section 94 (1) provides the criteria that must be satisfied for an Applicant to qualify for a DSP as follows:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
ISSUES
There are three relevant issues to be considered by the Tribunal for the purposes of this application. Firstly, whether the Applicant had any physical, intellectual or psychiatric impairments that were fully diagnosed, treated and stabilised. Secondly if so, whether the Applicant’s impairments warranted an impairment rating of 20 points or more under the Impairment Tables. Thirdly, whether the Applicant had a continuing inability to work.
THE EVIDENCE AND OTHER MATERIAL BEFORE THE TRIBUNAL
The following material was before the Tribunal in evidence:
(a)Report of Dr Gavin Martyn of 4 April 2017 (Exhibit A 1);
(b)Report of Dr Andrew Rotstein of 8 February 2010 (Exhibit A 2);
(c)Report of Dr Haloi of 19 February 2017 (Exhibit A 3);
(d)Operation Record of Mr Trivett dated 17 September 2010 (Exhibit A 4);
(e)Report of Dr Chris Mow of 31 January 2007 (Exhibit A 5);
(f)Report of Dr Thomas-Partner of 21 March 2005 (Exhibit A 6);
(g)Report of the Spinal Management Clinics of Victoria of 21 August 2009 (Exhibit A 7);
(h)The T documents filed 20 October 2016 (Exhibit R 1);
(i)The Supplementary T documents filed 28 November 2017 (Exhibit R 2);
(j)The Supplementary T documents filed 11 May 2018 (Exhibit R 3); and
(k)Letters of Dr Kate Neilson of 28 June 2016 and Associate Professor Jeremy Goldin 20 July 2016 (Exhibit R 4).
Additionally, there were the Respondent’s Statement of Issues, Facts and Contentions.
The Applicant gave oral evidence at the hearing of the application before the Tribunal. He was cross-examined by Mr. Munro. The Respondent did not call any witnesses to give evidence at the hearing of the application.
THE RELEVANTDATE FOR CONSIDERATION OF WHETHER THE APPLICANT QUALIFIED FOR DSP
The date at which the Tribunal is obliged to determine whether the Applicant qualified for the DSP is the date of cancellation. There is no other applicable date or relevant timespan. Should a person subsequently satisfy the criteria that entitles them to DSP, it is irrelevant to the enquiry that the Tribunal has to undertake. In this case, the relevant date is the date of cancellation namely 9 May 2016 (“the relevant date”).
THE PROCEDURAL FRAMEWORK CONCERNING A REVIEW OF DSP
In this context, pursuant to the powers conferred upon the Respondent under section 63 of the Administration Act on 7 March 2016, a DSP Review form was served on the Applicant. The DSP Review form complied with the requirements of section 63 (4) of the Administration Act and accordingly, was a validly issued notice to the Applicant pursuant to that section. The Applicant completed Section A of the DSP Review form and returned it to the Respondent on or about 15 March 2016. Dr Martyn completed Section B of the DSP Review form on 21 March 2016, which was also lodged with the Respondent. As noted earlier in these reasons, following receipt of this material the Respondent conducted a review of the Applicant’s eligibility for DSP.
Under section 27 (3) of the Act, when a recipient is served with a notice under section 63 (4) of the Administration Act, the recipient’s qualification for the DSP must be assessed in accordance with the applicable instrument in force as at the date that such notice was served.
Therefore, in assessing the Applicant’s qualification for the DSP in this application, the applicable Impairment Tables are those contained in the instrument made pursuant to section 26 of the Act which have been in force as of 1 January 2012.
The Tribunal notes that “impairment” is defined in “Part 1 – Preliminary” of the Impairment Tables to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”. Each of the 15 tables identifies a particular function and then provides relevant “descriptors” concerning each of those functions.[4]
[4] The term "descriptor" is defined in “Part 1 – Preliminary” as meaning "the information set out under the column headed "Descriptors" in each Table, describing the level of functional impact resulting from a permanent condition."
However, several provisions of “Part 2 – Rules for applying the Impairment Tables” will be reproduced as they assume considerable importance to the determination of this application.
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(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.
…
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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
…
CONSIDERATION OF THE ISSUES
Section 94 (1) (a) of the Act
The first matter that section 94 (1) (a) of the Act requires a decision maker to assess is whether the recipient of the DSP has a physical, intellectual or psychiatric impairment.
The Respondent has conceded that the Applicant satisfies section 94 (1) (a) of the Act, as he has an impairment resulting from his spinal condition which impacted on his ability to function on the relevant date.[5]
[5] This concession is made it paragraph 32 of the Respondent's Statement of Issues, Facts and Contentions.
Section 94 (1) (b) of the Act
Given the Respondent’s concession with respect to section 94 (1) (a), the next issue to be determined is whether such impairment attracts 20 points or more under the Impairment Tables. In undertaking this task, it is necessary to consider each of the conditions suffered by the Applicant.
The Applicant’s conditions
Right wrist, shoulder and knee
In the AAT1 decision, the Applicant’s conditions were broken down into three discrete parts; “Condition 1 – Right Wrist and Shoulder Disorders”, “Condition 2 – Right Knee Disorder” and “Condition 3 – Psychological Disturbance”. The approach that should be adopted, which is more consistent with the material in evidence before the Tribunal, is to follow the classification or description of the conditions contained in Dr Martyn’s medical report of 21 March 2016 as part of the DSP Review, and the JCAR of 4 May 2016 which identified two conditions suffered by the Applicant. The first condition is “Musculo-skeletal Disorder” and the second condition is “Psychological/Psychiatric Disorder.”[6]
[6] This terminology, or terminology similar to it, was adopted by Dr Martyn and the authors of the capital JCAR.
Dr Martyn, who has been the Applicant’s treating general practitioner since February 2000, recounted that the conditions which had a significant impact on the Applicant’s ability to function were caused when the Applicant (as a pedestrian) was hit by a car on 14 February 2005. As a result of this accident, the Applicant sustained injuries to his right shoulder, right knee and right wrist. The diagnosis was “muscle skeletal injuries to right wrist, shoulder and knee”. The treatment recorded was analgesics, a walking stick and home exercises. There was a referral to Adrian Trivett, an orthopaedic surgeon at Cabrini Medical Centre. This reference was in response to questions concerning past treatment and specialist consultation. When asked to provide details of any future or proposed treatment, Dr Martyn recorded “no more surgery, muscle exercises only”. When asked to describe his current symptoms, Dr Martyn said that the Applicant is suffering from a limp and chronic pain. He also expressed the opinion, in response to a question as to the impact on the Applicant’s ability to function, that he needed a full-time carer.[7]
[7] The Applicant did not assert he needed a full time carer in any other document or in his evidence to the Tribunal.
Mr Trivett conducted an arthroscopic procedure, being a partial medial meniscectomy, on the Applicant’s right knee on 17 September 2010.[8] A further report from Mr Trivett prepared after the procedure on 17 November 2011 was also in evidence.[9] The report from Mr Trivett concludes that the Applicant’s then current condition warranted further investigation and recommended a repeat MRI scan. Upon completion of the scan, it was Mr Trivett’s intention to review the Applicant’s results, presumably with the intention of identifying what if any further treatment might be necessary. It appears that no such review has taken place by Mr. Trivett or any other treating doctor.
[8] An "Operation Record" of this procedure was tendered in evidence and was marked exhibit A 4. It provides precise details of the procedure including findings, technique and Post-Operative Orders.
[9] Document T 16 of the T documents.
The evidence concerning multiple arthroscopic treatments undergone by the Applicant is not altogether clear. In addition to the procedure carried out by Mr Trivett in September 2010 referred to in the previous paragraph, there is an undated report from Dr Martyn which was lodged with the Tribunal on 4 April 2017.[10] The report makes observations with respect to what are described as his “orthopaedic conditions (onset 2005)” which records “multiple arthroscopies” being “3 Right Knee” and “1 Right Shoulder”. The same details are recorded by Dr Martyn in paragraph 3 of a letter to the Respondent dated 27 July 2017.[11] Regrettably, the date or dates of these procedures is not noted. Dr Martyn’s report, received by the Tribunal on 4 April 2017, also expresses the opinion that the Applicant’s orthopaedic conditions are “a stable and severe impairment which is not likely to improve”.
[10] This report of Dr Martyn is exhibit A 1. It is referred to in its entirety for its full force and effect.
[11] Document ST 12 of the Section 38AA Documents (“ST documents”).
The JCAR of 4 May 2016, after considering the material contained in the treating general practitioner’s report, noted that the Applicant had undertaken three overseas trips since 2013.[12] Critically, the author of the JCAR recorded that after discussion with the contributing assessor, the Applicant’s condition was deemed to be fully diagnosed, treated and stabilised as the client had sought reasonable treatment.
[12] This fact was conceded by the Applicant in his evidence in response to a question in cross-examination from Mr Munro. It was also apparent from the documentary evidence tendered to the Tribunal at document T 32 of the T documents which recorded "Immigration Advised Movements”. The Applicant further conceded in cross-examination that he had conducted two additional trips to Iraq in October 2016 and approximately September/October 2017.
In the JCAR of 4 May 2016, the authors have divided the “Musculo-skeletal Disorder – Other” into two parts. The first part applied “Impairment Table 3 – Lower Limb Function” and assigned an impairment rating of 5. The grounds for assigning this impairment rating were that the Applicant’s condition met several of the applicable criteria for a mild functional impact on activities using lower limbs by meeting (1) (b) and (2) (b) of Impairment Table 3. The second part applied “Impairment Table 2 – Upper Limb Function” and assigned an impairment rating of 0 on the grounds that there was no functional impact on activities using hands or arms.
There were several reasons why the JCAR assigned an impairment rating of 5, being a mild functional impact on the Applicant’s activities using his lower limbs. Clause (1) (b) of Impairment Table 3 was applied to the Applicant as the descriptor requires the person to have some difficulty walking around a shopping mall or supermarket without rest. The authors referred to the medical report of Dr Martyn of 21 March 2016 which stated that the Applicant walks with a limp. The Applicant also reported to the authors that he had difficulty walking long distances without resting. Clause 2 of Impairment Table 3 was applied to the Applicant as the descriptor requires the person to mobilise effectively but need to use a lower limb prosthesis or walking stick. In Dr Martyn’s report of 21 March 2016 he stated that the Applicant required the use of a walking stick.

The Tribunal agrees with the assessment contained in the JCAR when the descriptors contained in Impairment Table 3 – Lower Limb Function are applied to the evidence that was available at the relevant date. Additionally, there was evidence given by the Applicant to the authors that he was able to stand for 20 minutes and sit for 30 minutes. He was able to walk from a car to the shopping centre. He also reported that he drove for between 15 to 20 minutes at a time. This evidence also satisfies the descriptor in clause 2 (a) of Impairment Table 3 for a mild functional impact (which states that the table applies if the person is unable to stand for more than 10 minutes). The Tribunal finds that the assigning of a 5 point rating under Table 3 of the Impairment Tables, being a mild functional impact on activities using lower limbs, was the correct rating as at the relevant date.
The authors of the JCAR of 4 May 2016, when considering Impairment Table 2 – Upper Limb Function, applied a recommended rating of 0, that is having no functional impact on activities using hands or arms. The reason that a 0 rating was applied to the Applicant was that on the instructions the Applicant provided to the authors of the JCAR, he was able to do up buttons, hold and write with a pen and operate a keyboard. The authors further noted that the Applicant was able to function in his daily employment as an acupuncturist. The Tribunal notes that this requires some level of dexterity and skill in the use of one’s hands. When applied to the language of clause 1 of Impairment Table 2, these facts satisfy the descriptor which requires the person to be able to pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.[13] The Tribunal acknowledges that the Applicant gave evidence that when he worked as an acupuncturist he did not do as well on some days as he did on others, which meant that he was required to cancel appointments.
[13] The Applicant admitted that he worked as an acupuncturist in evidence to the Tribunal. In some of the documentary evidence which he produced this was also admitted, including in the extract from the Centrelink claim for disability support pension form completed by him on 14 August 2017 (being document ST 14 of the ST documents).
Dr Martyn provided the Respondent with several further medical certificates dated 28 November 2016[14], 22 February 2017[15], 27 March 2017[16], 19 June 2017[17] and provided additional medical evidence during a phone call with an ARO of the Respondent on 19 June 2017[18]. The Medical Certificates from Dr Martyn are referred to in their entirety for their full force and effect. However, they are all largely the same, in that they identify medical conditions of “chronic pain”, “orthopaedic conditions” and “insomnia/depression”. The two most recent Medical Certificates refer to a “new left wrist injury” arising from a recent fall together with joint pain worsening as a result of such fall. The Medical Certificates reached the same conclusion with respect to the prognosis for chronic pain and orthopaedic conditions, namely that they are “unlikely to improve”. The JCAR mentions additional medical evidence provided by Dr Martyn in a telephone call on 19 June 2017. In the telephone call, Dr Martyn identifies the first condition as “Chronic knee and shoulder pain”. The information Dr Martyn provided concerning the prognosis was that it was “Ongoing with no change with or without further treatment: permanent”.
[14] Document ST 5 of the ST documents.
[15] Document ST 6 of the ST documents.
[16] Document ST 7 of the ST documents.
[17] Document ST 8 of the ST documents.
[18] The details of the telephone call between Dr Martyn and the ARO of the Respondent are found in document ST 9 of the ST documents.
However, on 16 May 2017 the Royal Melbourne Hospital wrote to the Applicant advising him that it had received a referral from Dr Martyn for him to be assessed at the Pain Clinic at the hospital.[19] Regrettably, the Tribunal does not have a copy of the referral to know specifically what the Pain Clinic was requested to do by Dr Martyn[20]. However, the Tribunal notes that Dr Martyn’s referral is indicative of, at the very least, an investigation of further treatment and pain management options. Given what the Applicant had apparently complained of, in terms of his pain symptoms arising from the several orthopaedic conditions from which he suffered, this was a rational, logical and sensible step to take.
[19] Document ST 12 of the ST documents.
[20] Two letters from Dr Martyn are in evidence, one dated 27 July 2017 and the other one dated 12 August 2017, both of which state amongst other things, that: "Mr Obaidi is currently on the waiting list for Pain Management, Neurology and the COP Orthopaedic specialist clinics at the Royal Melbourne Hospital."
On 27 May 2017, the Royal Melbourne Hospital also wrote to the Applicant stating that it had received a referral from his doctor (assumed to be Dr Martyn) requesting an appointment for him at the Orthopaedic Specialist Clinic at the hospital. Unfortunately, Dr Martyn’s referral is not in evidence before the Tribunal and therefore, it is not apparent what the Orthopaedic Specialist Clinic was exactly requested to do. However, once again the Tribunal notes that it is indicative of further treatment options being explored, which given the several orthopaedic conditions from which he suffered, was a rational, logical and sensible step to take.
The Applicant did give evidence to the Tribunal that he was seeing a specialist about further investigations of his knee condition. He conceded he was on the waiting list for surgery at a public hospital. He also conceded that his orthopaedic surgeon, Mr Trivett, had suggested further investigation. As it arose in his view from the accident in which the Applicant was struck by a car, TAC was still liable. However, subsequently they denied any further liability and therefore all medical treatment stopped.
The available documentary evidence concerning the Applicant’s knee condition reveals that he has been referred to a pain management clinic and the Orthopaedic Specialist Clinic at the Royal Melbourne Hospital[21]. This evidence together with the concessions that the Applicant made concerning being on the public hospital waiting list for further surgery on his knee, are consistent with a conclusion that the Applicant’s knee condition has not been fully treated and stabilised.
[21] It should also be noted that in a Centrelink claim for DSP (document ST 14, of the ST documents) which was completed by the Applicant on 14 August 2017, he also wrote that he was on a waiting list for orthopaedic, neurology and pain clinics at the Royal Melbourne Hospital.
A further JCAR, dated 27 June 2017, is in evidence before the Tribunal.[22] The contents of the document are referred to in their entirety for their full force and effect. Reference should be made yet again to some of the matters identified in the telephone conversation between the assessor and the Applicant’s treating doctor, Dr Martyn, in which several things emerged. Dr Martyn reported that the Applicant had attended a pain clinic in the past and that he took limited pain medication due its side effects causing gastritis, usually with a sparing use of a small dose of analgesia Panadene Forte together with Somac.
[22] Document ST 3 of the ST documents.
Dr Martyn further advised the authors of the JCAR that the Applicant had not been reviewed by a specialist in recent years. He had severe chronic pain impacting upon his mobility with limited walking tolerance and the need to rest halfway from the waiting area to the consultation room. However, he could walk around the supermarket. Dr Martyn reported that the Applicant used a walking stick and was able to stand from a chair without the assistance of another person. He also needed help from his wife to put on his shoes and socks. The assessor assessed the functional impact of the knee condition as a mild functional impact on activities using lower limbs, assigning it 5 points under Impairment Table 3 (as such facts fell within the ambit of the descriptors contained in clause (1) (b) and (2) (a) and (b) of Impairment Table 3). The Tribunal accepts this assessment.
There was evidence in a medical report from Dr Christopher Minogue dated 21 November 2017 concerning the Applicant’s conditions[23]. Whilst Dr Minogue did not physically examine the Applicant, he examined much of the material which is before the Tribunal. The contents of his report are referred to in their entirety for their full force and effect. Dr Minogue identified the fact (referred to earlier in these reasons) that Mr Trivett intended to follow up his September 2010 arthroscopy with an MRI scan, in view of persisting symptoms. He records that to date no evidence has been provided of the recommended review. The Tribunal accepts that this is in fact the case. Dr Minogue also opines that without updated specialist evidence it is difficult to reliably deem the Applicant’s conditions as fully diagnosed, treated and stabilised. This opinion is consistent with the evidence before the Tribunal and the findings made above. In so far as it is appropriate to do so, this opinion is accepted by the Tribunal with respect to the Applicant’s right knee condition.
[23] Document ST 18 of the ST documents.
Dr Minogue was also asked if necessary, what impairment rating he would assign to the right knee condition under the Impairment Tables. He observed that it was not applicable; however, if an impairment rating was to be assigned, he would have given the conditions no more than 5 points on the basis of “Mild patellofemoral and medial tibiofemoral compartment chondral wear” reported in the MRI scan in February 2010 performed by Dr A Rotstein. Dr Minogue also observed, in justification of this conclusion, the report of Mr Trivett’s arthroscopy in September 2010 which included “Patellofemoral joint – OK” and “Medial articular cartilage – minor chondroplasty performed”. The Tribunal observes that this conclusion is consistent with the assignment of a 5 point rating by the authors of the JCAR on 4 May 2016. It is accepted by the Tribunal.
The Applicant gave evidence that since 2005 there had been no further treatment on his right wrist condition save for some periodic treatment by way of acupuncture.
The references above which concerned referral to a pain management clinic at the Royal Melbourne Hospital are referred to and repeated. They are also indicative of possible further investigation and treatment options for the right wrist condition. This must lead to the conclusion that at the very least such condition has not been fully treated and stabilised in the relevant sense.
Dr Minogue was also requested to advise on this topic. He considered the evidence provided to the Respondent concerning this condition suffered by the Applicant at the relevant date. He also considered the further information provided after that date and for some period after the AAT1 hearing. He concluded that despite this additional information, gaps remain in the medical evidence and some of the reported medical conditions lack a specific ongoing diagnosis. Therefore, his conclusion was that a relative paucity of primary specialist medical evidence exists. In this setting, a clear explanation for persisting right wrist and right shoulder symptoms is lacking. Therefore, they cannot reasonably deem to be fully diagnosed, treated and stabilised as required by the legislative regime.
Dr Minogue was also asked what impairment rating he would assign to the right wrist and shoulder condition under the relevant Impairment Tables. He stated for the reasons discussed above, that they were not applicable. However, if a conclusion was reached that the condition was fully diagnosed, treated and stabilised he expressed the opinion that an impairment rating of no more than 5 points under Impairment Table 2 would be justifiable due to a lack of objective evidence of any major anatomical disruption. The Tribunal accepts this conclusion and also accepts the conclusion of the authors of the JCAR in May 2016 based upon the instructions furnished to them by the Applicant. This is also consistent with the evidence before the Tribunal that has come from the Applicant also. This is particularly in the light of the fact that he was able to pursue at least to some reasonable extent the occupation of an acupuncturist and the requirement in pursuing such occupation of application and manipulation of delicate or fine acupuncture needles.
Mental health conditions
There was considerable evidence before the Tribunal concerning various aspects of the Applicant’s mental health conditions prior to the relevant date. They have been considered by the Tribunal. They are usefully summarised in the Respondent’s Statement of Issues, Facts and Contentions.[24]
[24] Paragraphs 87 to 95 of that document are referred to for details of those reports and other documentary evidence concerning same.
Dr Martyn, in his medical report of 21 March 2016, identified the Applicant’s condition as mental health issues, depression and anxiety, and chronic pain following the Applicant being hit by a car in February 2005. He also reported insomnia. A separate diagnosis of PTSD was referred to in the report, reflected in low mood, anxiety, chronic pain and insomnia. Reference was made to the treatment administered by a psychologist, Dr Pozanski, whose report is in evidence before the Tribunal.[25]
[25] Document T 17 of the T documents. Dr Pozanski assessed the Applicant as suffering from "Chronic PTSD and Major Depressive Disorder."
The JCAR of 4 May 2016 which considered this condition, recorded that the Applicant:
(a)can become teary and his concentration can be poor;
(b)has a current driver’ s license and drives regularly;
(c)is able to catch public transport if required;
(d)worked irregularly between 2 and 4 hours per week as an acupuncturist;
(e)will go out for coffee with his wife occasionally;
(f)visits family and is visited by family;
(g)goes shopping and occasionally camping;
(h)had attended a pain clinic in the past.
The authors of the JCAR concluded that the Applicant’s mental health conditions were not fully diagnosed, treated or stabilised as he had not ever been assessed by a psychiatrist or clinical psychologist for a diagnosis. Furthermore, they recorded that the Applicant had not had any treatment in the last three years.
Dr Kate Nielson, a clinical psychologist, in a report to Dr Martyn dated 28 June 2016,[26] produced after her initial consultation with the Applicant on that day, stated that she had encouraged the Applicant to pursue treatment for PTSD and depression. She also recommended referrals to a multidisciplinary pain management program, to a neuropsychologist for assessment, and/or for a driving assessment, if those options had not already been considered. These recommendations from Dr Nielsen are completely consistent with a conclusion that the Applicant’s conditions have not been fully treated and stabilised at the very least. It is a diagnosis made after the relevant date but comparatively close to it. It must assume critical significance in the deliberations of the Tribunal.
[26] Document T 36 of the T documents.
Following the consultation with Dr Nielsen, a report was prepared by Associate Professor Jeremy Goldin dated 20 July 2016,[27] which is in evidence before the Tribunal. Whilst he was consulted for sleep issues, Professor Goldin recorded that the sleep issues were mainly manifested by depression, anxiety and post-traumatic stress disorder. He appreciated the fact that the Applicant had been referred to a clinical psychologist and noted that the Applicant had a plan for a follow-up later on, assuming there was approval from the TAC. (Which was not forthcoming unfortunately.)
[27] Document T 37 of the T documents.
A specialist from the Royal Melbourne Hospital[28] in a report to the Applicant’s medical clinic in Werribee, dated 28 November 2016, stated amongst other things that the Applicant appeared to be clinically depressed. He needed to be put in touch with psychiatric services. The specialist understood that Dr Martyn would be seeing the Applicant shortly and he would raise the possibility of referring the Applicant to a psychiatrist in his local area. This assessment, by reference to a referral to a psychiatrist, is indicative of the fact that further investigation and treatment options for the Applicant’s mental health conditions were feasible and appropriate. It is also indicative of the fact that, at that time that the report was prepared, at the very least the Applicant’s mental health conditions had not been fully treated and stabilised.
[28] Document ST 4 of the ST documents.
As noted above, there were several medical certificates produced by Dr Martyn on 28 November 2016, 22 February 2017, 27 March 2017, 19 June 2017 and additional medical evidence provided in a telephone call with an ARO of the Respondent on 19 June 2017. The issue of insomnia and depression is canvassed in those medical certificates. The latter three certificates refer to the trial of a CPAP machine for sleep apnea. The medical certificate dated 19 June 2017 indicates that the Applicant was seeing a psychologist long-term for insomnia and depression. In the telephone conversation with the ARO, Dr Martyn stated that the Applicant’s depression had improved early in 2017 with psychotherapy, and that further improvement was likely, because the Applicant was eligible for funding for treatment. Dr Martyn indicated that a referral had been made or was to be made. This indicates that the Applicant’s mental health condition had not been fully treated and stabilised throughout that period. Although those medical certificates and the further medical evidence was provided to the Respondent after the relevant date, because it was provided after the relevant date, it demonstrates that the Applicant’s mental health conditions were not fully treated and stabilised as at the relevant date.
Dr Williams, a clinical psychologist, provided additional medical evidence to an ARO of the Respondent in a telephone call on 20 June 2017.[29] Dr Williams stated that she had nine sessions with the Applicant to that date and she noted an improvement psychologically in the Applicant, with improved mood and calmness. She stated that further improvement is expected.
[29] The record of this telephone conversation is found in document ST 10 of the ST documents.
Dr Williams prepared a report on 28 July 2017[30]. She articulated the particular conditions from which the Applicant suffered in some detail. She opined that whilst the Applicant’s depressed mood and anxiety is not necessarily expected to persist for more than two years, such persistence is a reasonably common occurrence. Dr Williams stated that the Applicant had been compliant with treatment recommendations but his condition had not as yet improved significantly, although he did report some reduction in agitation. The Tribunal considers that Dr Williams’ conclusions are consistent with a conclusion that the Applicant’s mental health conditions had not been fully treated and stabilised as at that date. The Tribunal notes that Dr Williams’ conclusions were made some time after the relevant date and demonstrate that further treatment options were open to the Applicant.
[30] Document ST 12 of the ST documents.
Dr Minogue considered these conditions in his report dated 21 November 2017. He considered that the psychological disorders suffered by the Applicant had only recently been diagnosed by Dr Williams. He stated that as therapy with Dr Williams did not commence until early 2017 and that the Applicant had only recently been referred to a specialist pain management clinic, he considered it reasonable for the Applicant’s psychological disorders to be deemed not to be fully diagnosed, treated and stabilised as at the relevant date. He noted that Dr Nielsen had recommended referrals for specialist pain management and a neuropsychological assessment in June 2016, which had not at that time been undertaken. This is consistent with some of the observations made by the Tribunal above with respect to these matters.

When asked to assign a rating under the Impairment Tables for the Applicant’s mental health conditions, Dr Minogue stated that no impairment rating could be assigned as the relevant therapy had not commenced at the relevant date and the outcome of such therapy could not have been reasonably predicted. This also is to the Tribunal a correct conclusion.
For the reasons identified above, the Tribunal considers that at the very least, the Applicant’s mental health conditions have not been fully treated and stabilised.
Neck and lower back
There is some doubt as to whether or not this condition is in fact the subject of this claim or otherwise subsumed by the other conditions of which the Applicant complains. The JCAR of 4 May 2016 does not identify this as a separate condition. However given the submissions that have been made by the Respondent concerning this complaint, the Tribunal will separately assess it in these reasons but perhaps not to the degree of detail as the other conditions above.
In the JCAR of 4 May 2016, the Applicant reported that he is able to stand for 20 minutes and sit for 30 minutes. The report further observed that he sat for six hours each way on his trip to Bali in 2015.
A radiologist, Dr Haloi, on 15 February 2017 reported that x-rays of the Applicant’s cervical and lumbosacral spine reveal mild degenerative changes at C 4 to C 7 level and anterior osteophytes from these vertebral bodies.
Dr Martyn reported on 22 February 2017 that the Applicant underwent recent spinal x-rays. On 16 May 2017 the Royal Melbourne Hospital received a referral from Dr Martyn for the Applicant to attend its pain clinic. A further referral was made by Dr Martyn for the Applicant to attend the Royal Melbourne Hospital’s Orthopaedic Specialist Clinic.
No mention was made in Dr Martyn’s report of 27 July 2017 of any spinal condition.
In his report of 21 November 2017, Dr Minogue observed that the x-rays taken in February 2017 revealed mild degenerative changes in the cervical spine and no abnormality in the lumbosacral spine. Therefore, the cervical spine changes required little if any treatment. He concluded that the Applicant’s spinal condition was fully diagnosed treated and stabilised on the relevant date. He further concluded that it would seem reasonable for 5 points to be applied under Table 4 of the Impairment Tables for with descriptors (a) concerning activities over head height and (c) turning their trunk or moving their head for example to look to the sides or upwards, as being applicable to the Applicant’s condition.
The Respondent contends that the condition should be assigned 5 points under Table 4. He submits that a higher rating cannot be assigned as there is insufficient evidence concerning this condition to permit a higher rating.
The Tribunal accepts the Respondent’s contention that the neck and lower back condition should be assigned 5 points under Table 4. The reason for accepting the Respondent’s contention is that when one examines the contents of the medical reports referred to above, together with the JCAR of 4 May 2016 concerning the functional impact of this condition, its manifestations most accurately accord with the language used in the descriptors (a) and (c) for a mild functional impact attracting 5 points under that table.
Chronic pain
There is a history of the Applicant’s experience with pain contained in both his evidence in the witness box and the documentary evidence before the Tribunal.[31]
[31] The Respondent's Statement of Issues, Facts and Contentions at paragraphs 125 to 129 are referred to.
Dr Martyn has reported the symptoms of chronic pain arising from the injuries sustained when the Applicant was hit by a car in February 2005 and in the years afterwards. (The several medical certificates and other evidence from Dr Martyn are referred to and their contents repeated.) Much of the Applicant’s pain has emanated from the right wrist, shoulder and knee injuries sustained in that incident.
The Respondent contends that the Applicant’s chronic pain is associated with those conditions together with his mental health condition and his neck and lower back conditions. By reason of this contention, the Respondent argues that the resulting impairment must be assessed using the Table relevant to the area of function affected under paragraph 6 (9) (b) of “Part 2 – Rules for applying the Impairment Tables”.
The Tribunal accepts this contention on the part of the Respondent. The reason that this is accepted is because the majority of the evidence reveals that these conditions have caused the pain from which the Applicant complains. Therefore, the applicable Table should be applied to the source of such pain. Further, clause 6 (9) “Assessing functional impact of pain” is referred to in its entirety. As clause 6 (9) explains, there is no Table dealing specifically with pain and when assessing pain, the criteria within that clause must be considered. Specifically, clause 6 (9) (b) provides: “chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected”.
The Applicant’s pain is caused by various other conditions. Applying clause 6 of the Table, the impairment is assessed by identifying the function affected as a result of the pain experienced by the Applicant.
Insomnia and sleep disordered breathing
This condition has appeared as a manifestation of several of the other conditions complained of by the Applicant. It should be noted that there is no specific Table dealing with sleep disorders.
In the medical report prepared by Dr Martyn on 21 March 2016, insomnia was identified as a symptom[32] of the musculoskeletal condition suffered by the Applicant as a result of being struck by a car in February 2005.
[32] Document T 21 of the T documents at Part G under the heading "Current symptoms". Dr Martyn has expressed a similar opinion in most of the reports that he has prepared which are in evidence before the Tribunal and have been referred to throughout these reasons.
Additionally, insomnia was also noted in the JCAR of 4 May 2016 as a symptom of his mental health conditions.[33] This is consistent with the findings of several other medical professionals’ reports that are in evidence before the Tribunal. For instance Dr Kate Nielson in her report of 28 June 2016 reported that the Applicant presented with symptoms of PTSD and depression following multiple car accidents. She recorded that he was currently attending a sleep specialist to improve long-standing insomnia and was awaiting the results of a sleep study.
[33] Document T 22 of the T documents at page 103.
Dr Goldin, in his report dated 20 July 2016, stated that the sleep disorder syndrome from which the Applicant suffered was “often associated with anxiety/ depression and frequently results in unrefreshing sleep”. He recommended trialling treatment using CPAP. A trial using the CPAP machine did eventuate and was referred to in several reports of Dr Martyn.[34] (Initial CPAP titration was apparently undertaken and according to a report from the Royal Melbourne Hospital dated 28 November 2016 in evidence before the Tribunal, it was reasonably well tolerated.[35]The author of the Royal Melbourne Hospital report suggested a specific trial of the CPAP and prescribed the type of machine to be used.) It is not clear from the material what the result of this trial was or, for that matter, whether it was actually undertaken.
[34] Dr Martyn make specific reference to the trial of a CPAP machine with the Applicant in documents ST 6, ST 7 and ST 8 of the ST documents.
[35] Document ST 4 of the ST documents.
Dr Minogue in his report observed that Associate Professor Goldin’s report stated that the Applicant’s condition appeared to be related to the anxiety/depression of which he complained. Dr Minogue also opined that because the CPAP trial was ongoing, the Applicant’s insomnia and sleep disordered breathing could not reasonably be deemed to have been fully treated and stabilised as at the relevant date. For this reason, no known impairment rating (if it was otherwise applicable) could be given to this condition. The Tribunal accepts this contention.
The Tribunal considers that for the reasons articulated above, expressed in the evidence before it, the Applicant’s insomnia and sleep disordered breathing have not been fully treated and stabilised. There has been no explanation concerning the outcome of the CPAP trial which is relevant to determining whether the condition has been fully treated and stabilised. Further, given the fact that several experts have recommended further psychological intervention as a means of dealing with his sleep disorder, this treatment option has not been explored and cannot be said to be fully treated and stabilised.
Finally, for the reasons identified above, the Tribunal accepts the contention of the Respondent that the conditions are a manifestation of the Applicant’s mental health conditions. It is has been recorded above that the Applicant’s mental health conditions have not been fully treated and fully stabilised on the relevant date as required by the regulatory regime applicable in this matter.
Gastritis
There is limited evidence of this condition before the Tribunal. In terms of the relevant date, the condition emerges from the report of Dr Martyn of 21 March 2016. The condition was identified in Dr Martyn’s response to a question as to whether the Applicant had any other medical conditions that are generally well managed and that cause minimal or limited impact on his ability to function. Dr Martyn also stated that the Applicant attends an “endocrone” (presumably an endocrinologist) at the Western Health Clinic. Similar comparatively brief references to this condition were also made after the relevant date by Dr Martyn on 22 August 2016 and 22 February 2017.
Tellingly, there was no reference to gastritis in the JCAR of 4 May 2016. It would appear that it was simply never taken into account by, nor raised with, the authors of the report.
The condition did feature in the JCAR of 27 June 2017. It noted that Dr Martyn stated that the Applicant experienced increased symptoms of reflux when he took analgesics. Therefore, he only took them sparingly. Dr Martyn’s opinion was that these symptoms were stabilised as long as the Applicant did not increase his usage of analgesics. (Dr Martyn expressed a similar view to this in two reports he prepared on 27 July 2017 and 12 August 2017 in which he also noted that a gastro-scope for stomach problems caused by use of analgesics had been undertaken.) The authors of the JCAR dated 27 June 2017 considered by reason of this information, that the condition was fully diagnosed, fully treated and stabilised. They therefore applied no rating to this condition under the Impairment Tables.
The Tribunal accepts this analysis. The Tribunal accepts that the Applicant’s condition has been fully diagnosed, fully treated and fully stabilised. There is no evidence that enables the Tribunal to reach a conclusion that this condition can be assigned an impairment rating of anything other than 0 points under Table 10 of the Impairment Tables.
Vitamin D deficiency and headaches
The Tribunal will deal very briefly with each of these conditions.
There is very little evidence about the Applicant’s vitamin D deficiency other than the reference to it by Dr Martyn in the document called “Full Summary” prepared on 22 August 2016.[36] It does not appear in any other reports. Dr Martyn does not express any opinion about whether it is a condition that is fully diagnosed, fully treated and fully stabilised.
[36] Document T 38 of T documents.
The only evidence that the Tribunal has is the report of Dr Minogue on 21 November 2017, where he states that vitamin D deficiency is easily correctable. The Tribunal accepts this opinion.
With respect to headaches there is also limited evidence before the Tribunal. It is confined largely to the report of Dr Martyn on 22 August 2016 with respect to the Applicant’s past medical history. There was no reference to headaches in the letter reports of Dr Martyn such as the report dated 27 July 2017.
Dr Minogue in his report on 21 November 2017 expressed a conclusion that there was insufficient evidence for the condition to be regarded as fully diagnosed, fully treated and fully stabilised on the relevant date. The Tribunal accepts this contention.
CONCLUSION
For the reasons articulated above, the Tribunal accepts the Respondent’s contention that the overall impairment rating of the Applicant is 5 points, and therefore he does not satisfy section 94 (1) (b) of the Act.
As the Tribunal has found that the Applicant does not have a rating of at least 20 points under the Impairment Tables, it is not necessary to determine whether he has an inability to perform work within the meaning of section 94 (1) (c) (i) of the Act.
By reason of the foregoing matters, the Tribunal affirms the AAT1 decision.

I certify that the preceding 93 (ninety three) paragraphs are a true copy of the reasons for the decision herein of Robert Cameron, Senior Member

..............................[sgd]......................................

Associate

Dated: 17 August 2018

Date of hearing:	15 May 2018
Applicant:	By phone
Advocate for the Respondent:	Mr Cameron Munro
Solicitors for the Respondent:	Department of Human Services, FOI & Litigation

[2018] AATA 2968

17 August 2018

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