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

Osman and Secretary, Department of Social Services (Social services second review) [2020] AATA 2045 (1 July 2020)
Division:GENERAL DIVISION
File Number: 2018/4025
Re:Susan Osman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:1 July 2020
Place:Melbourne

The decision under review is affirmed.
....................[sgd]...............................................
The Hon. Matthew Groom, Senior Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – whether conditions fully treated and stabilised at the qualification period – whether impairment attracts rating of 20 points or more under Impairment Tables – decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
1 July 2020
INTRODUCTION

This is a review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) (the “AAT 1”) dated 20 June 2018 to affirm a decision of the Department to reject the applicant’s claim for disability support pension (“DSP”).
On 30 January 2017 the applicant lodged a claim for DSP. The applicant listed her illnesses as including:
(a)bilateral knee osteoarthritis;
(b)long standing back pain with lumbar spondylosis;
(c)right side shoulder joint osteoarthritis;
(d)type II diabetes; and
(e)hypertension.
On 10 May 2017, a Centrelink employee made the decision to reject the claim on the basis that the applicant had been assessed as not having an impairment rating of 20 points or more due to her conditions not been considered fully treated and stabilised (the “original decision”).
On 24 November 2017, an Authorised Review Officer affirmed the original decision (the “ARO decision”).
The applicant then sought a review of the ARO decision by the AAT 1.
On 20 June 2018 the AAT 1 again affirmed the original decision (the “AAT1 decision”).
On 13 July 2018, the applicant sought a review of the AAT1 decision by this Tribunal.
A hearing in this matter was held on 12 March 2019. The applicant was self-represented. The respondent was represented by Ms Jenna Molan.
In the course of having this matter reviewed there have been references to a number of other conditions the applicant was suffering at the time of her claim including:
(a)right knee medial meniscus tear;
(b)left shoulder joint osteoarthritis;
(c)left foot plantar fasciitis and spurs and mild degenerative cortical irregularity of the right ankle;
(d)anxiety and depression; and
(e)other miscellaneous conditions including: hypercholesterolemia, mild lymphocytosis, endocrine system dysfunction, right sternoclavicular, cognitive disability and obesity.
RELEVANT LAW AND ISSUE
The relevant law is set out in the:
(a)Social Security Act 1991 (the “Act”);
(b)Social Security (Administration) Act 1999 (the “Administration Act”); and
(c)Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the “Determination”).
Clause 4(1) of Schedule 2 of the Administration Act provides that:
If:
(a)       a person (other than a detained person) makes a claim for a relevant social          security payment; and
(b)       the person is not, on the day on which the claim is made, qualified for the              payment; and
(c)       assuming the person does not sooner die, the person will, because of the              passage of time or the occurrence of an event, become qualified for the   payment within the period of 13 weeks after the day on which the claim is   made; and
(d)       the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Therefore, the issue before the Tribunal is whether the applicant qualified for DSP on the date she lodged her claim, namely 30 January 2017, or at any time during the 13 week period through to 1 May 2017 (the “qualification period”).[1]
[1] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606; Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; and Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922
More specifically, it is necessary for the Tribunal to determine whether, in accordance with section 94(1) of the Act, the applicant had:
·a physical, intellectual or psychiatric impairment; and
·the impairment was fully diagnosed, treated and stabilised and attracted an impairment rating of at least 20 points under the Impairment Tables; and
·a continuing inability to work.
The Impairment Tables are set out in the Determination.
Section 5(2) of the Determination provides that:
(i)        unless otherwise authorised by law, are only to be applied to assess    whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(ii)       are function based rather than diagnosis based; and
(iii)       describe functional activities, abilities, symptoms and limitations; and
(iv)      are designed to assign ratings to determine the level of functional impact of           impairment and not to assess conditions.
Note: impairment is defined in section 3 to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
In order to attract points under the Impairment Tables a condition must be considered permanent and the impairment that results from the condition must be more likely than not, in light of all available evidence, to persist for more than two years. For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised and be likely to last for more than two years.
Further, section 6(5) of the Determination states that:
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.
A condition is only considered fully stabilised if, in accordance with section 6(6) of the Determination:
(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.
Section 6(7) of the Determination provides that:
For the purposes of subsection 6(6), reasonable treatment is treatment that:
(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.
The Secretary in written submissions did not dispute that the applicant had impairments in the qualification period and accepts that she satisfied section 94(1)(a) of the Act.
Therefore, the issue before the Tribunal turns on whether the applicant’s medical conditions were fully diagnosed, treated and stabilised for the purpose of the Act, and if so, whether they collectively attract an impairment rating of at least 20 points under the Impairment Tables.
In the event that the applicant has satisfied the 20 points requirement, a further issue for determination is whether the applicant had a continuing inability to work for the purpose of section 94(1)(c)(i) of the Act. In this context, the Secretary concedes that the applicant has actively participated in a program of support for the purpose of section 94(2) of the Act.
EVIDENCE AND CONSIDERATION
With respect to all of her conditions, the applicant contends that the conditions are fully diagnosed, treated and stabilised and attract a rating of at least 20 points under the Impairment Tables. In addition, the applicant contends that she meets the continuing inability to work requirement and as such qualifies for DSP.
Bilateral knee osteoarthritis and right knee medial meniscus tear
The respondent conceded that the applicant’s bilateral knee osteoarthritis (and including the applicant’s medial meniscus tear) were fully diagnosed at the time of the qualification period. However, the respondent maintains that the conditions were not fully treated and stabilised at that time on the basis that there was further treatment available which had the potential to lead to significant functional improvement for the applicant. More specifically, in respect of the right knee condition, this included the potential for a full knee replacement. The respondent also contends that, in any case, the functional impairment of the applicant due to the conditions at the time of the qualification period was insufficient to be assigned a points rating under the Impairment Tables.
The medical evidence in the materials included confirmation from orthopaedic surgeon Mr Bruce Love that the applicant’s bilateral knee conditions had been diagnosed. A Western Health Discharge Summary completed in respect of the applicant dated 20 May 2014 stated that the applicant had undergone a left knee arthroscopy and recommended follow-up physiotherapy. Further, a Western Health Discharge Summary completed in respect of the applicant dated 18 May 2016 stated that the applicant had undergone a right knee arthroscopy, that the applicant would require a total knee reconstruction in the future and that her GP should refer her back to orthopaedics when clinically appropriate.
In a Medical Certificate dated 24 May 2016 Dr Cassandra Coetzee described the applicant’s diagnosis as including “right knee surgery” and described the symptoms as including knee pain with difficulty walking and difficulty bending. The treatment was described as including surgery with planned physiotherapy. Dr Coetzee confirmed her opinion that the applicant’s symptoms would impact her capacity for work for less than three months and stated that in her opinion the applicant is unfit for work before 4 June 2016.
In a Medical Certificate dated 5 September 2016, Dr Vasantha Eliezer described the applicant’s diagnosis as including “left knee-osteoarthritis” and described the symptoms as including “both knee pain, difficult to kneel and bend”. The treatment was described as having included surgery, analgesia and physiotherapy. Dr Eliezer confirmed her opinion that the applicant’s symptoms would impact on her capacity to work until 5 December 2016.
The Job Capacity Assessment Report dated 19 September 2017, which is after the qualification period, states that the applicant had attended some hydrotherapy and physiotherapy to manage her left knee pain, although there is no detail on exactly to what extent and when this occurred. In that Report Dr Anthony Greenway concluded in respect of the applicant’s bilateral knee condition that the:
condition is assessed as not fully treated and stabilised for the purpose of this assessment, as the client may benefit from optimal evidence based treatment including multi-disciplinary pain management approach, rheumatologist assessment, pharmacotherapy, right knee total replacement surgery, which may improve client’s functional ability within the next two years and thus improve client’s capacity for gainful employment.
In a letter in support of the applicant’s claim dated 30 January 2018, again substantially after the qualification period, Dr Robin Singh confirmed the diagnosis for the applicant’s bilateral knee condition. In the letter, Dr Singh states that the applicant has been referred to an orthopaedic specialist for consideration for a knee replacement. Dr Singh notes that the applicant’s condition has affected the applicant’s mobility and ability to perform “various tasks”. Dr Singh concludes that he does not “foresee significant improvement in functioning over the next few years”. In a further letter dated 29 May 2018, Dr Singh concluded that the applicant’s sleep is affected due to pain from her knee condition and that in her view the applicant has moderate impairment using her lower limbs, which should attract 10 points under the Impairment Tables. Dr Singh confirmed his conclusion in a further letter dated 5 September 2018, noting again that the applicant had been referred to an orthopaedic specialist for a knee replacement. Dr Singh made no specific statement regarding the applicant’s suitability for surgical intervention, although in his letter of 5 September 2018 Dr Singh states that in his view “it is unpredictable how much improvement there would be post surgery”.
In her direct evidence before the AAT 1 and also this Tribunal, the applicant confirmed that prior to the qualification period she had been told that a total knee reconstruction “may” be required to help address her knee pain and that she had been included on a waiting list for surgery. She confirmed that she had not undertaken the surgery. However, the applicant told the Tribunal that “a few months ago” she had attended hospital for a consultation in relation to the proposed knee surgery and had been advised that she was very young to undergo surgery to her knee and that, even if the surgery involves a 99% chance of success, if something goes wrong she will lose her mobility. On that basis the applicant declined to undergo the surgery.
The applicant told the Tribunal that she was significantly impacted by her knee conditions and feels chronic pain as a consequence, noting that she experienced significantly more pain in her right knee than in her left knee. She told the Tribunal that day to day she gets around limping, but when the conditions are aggravated she requires the aid of a walking stick. The applicant accepted that she had undertaken voluntary work collecting money for a charity, which had further aggravated her condition and required her to walk with the aid of a walking stick. The applicant also accepted that she had travelled overseas for an extended period of time but told the Tribunal that she was only able to do so with the assistance of her sister and that she was significantly impacted by the trip for a couple of months after her return. She described her whole body as feeling “wrecked” on her return. The applicant accepted that, as at the qualification period, she was able to stand up without assistance, sit for 30 minutes, stand for a maximum of 2 hours but had difficulty managing stairs. The applicant stated that her knee conditions are not getting any better, only worse. The applicant told the Tribunal that she had done everything she could to manage the conditions including taking her medication on a daily basis, as well as doing her physiotherapy and home exercises. The applicant stated that she was unable to undertake her home exercises for longer than 10 to 15 minutes due to her pain.
On the basis of the evidence before it, the Tribunal is satisfied that as at the qualification period, the applicant’s bilateral knee conditions were fully diagnosed and that the conditions impacted the applicant’s mobility and broader functioning ability to some degree. However, the Tribunal is satisfied that, at the time of the qualification period, there remained further available treatment in respect of the conditions which could have improved the applicant’s functional ability within the next two years including, in respect of the right knee, a full knee replacement. The applicant made clear to the Tribunal that she did not undertake the knee replacement.
The Tribunal does not accept that there is reliable independent evidence which supports the applicant’s contention that surgical intervention was not an appropriate treatment for her right knee. In addition, while the Tribunal accepts that the applicant has taken her medication on a regular basis, as well as home exercises in the management of her condition, the Tribunal is not satisfied that there is sufficient independent evidence to support the applicant’s contention that she has undertaken physiotherapy and hydrotherapy in the management of her condition. In this context, the Tribunal notes that the applicant’s Medicare Patient History Report only records three physiotherapy sessions prior to the qualification period, namely on 12 March 2016, 9 April 2016 and 4 June 2016. When asked in cross-examination what these sessions were for, the applicant told the Tribunal that they were for the management of her back condition. The Tribunal finds that the applicant has not undertaken any substantive physiotherapy or hydrotherapy sessions in the management of her knee conditions. For these reasons, the Tribunal is satisfied that the applicant had not undertaken reasonable treatment with respect to her knee conditions at the time of the qualification period. Accordingly, the Tribunal is satisfied that the applicant’s bilateral knee condition was not fully treated and stabilised at the qualification period and therefore cannot be assigned points under the Impairment Tables.
Lumbar spine condition
The respondent conceded that the applicant had a lumbar spine condition in the form of a degenerative disc disease, particularly at the L5/S1 level as at the qualification period. The respondent contended however that the condition was not fully treated and stabilised by the qualification period on the basis that further treatment was available to the applicant which could result in significant functional improvement within the next two years.
The Tribunal accepts that the materials before it support a conclusion that there was a diagnosis in respect of the applicant’s lumbar spine condition as at the qualification period. For example, a radiology report by Dr Wayne McGregor dated 3 February 2012 noted:
Spondylitic lipping from L 2-3 to L5-S1 and with mild narrowing of the L5-S1 disc space indicates degenerative disc disease, particularly at L5-S1.
The condition was further confirmed by orthopaedic surgeon, Mr Bruce Love, by letter dated 10 February 2012. In addition, Dr Vasantha Eliezer also confirmed the diagnosis for degenerative disc disease at L5-S1 by letter dated 16 January 2017.
However, the Tribunal accepts the respondent’s contention that there was evidence that the condition was not fully treated and stabilised by the qualification period. That evidence includes:
(a)a medical report from physiotherapist Ms Anna Nethercote dated 23 April 2013 stating that the applicant had reported that her back pain was currently her primary complaint and that therefore “a referral to a neurosurgery specialist may be appropriate”. There is no independent evidence in the materials before the Tribunal that the applicant ever took up that recommendation. In her direct evidence to the Tribunal the applicant stated that she had followed up the recommendation but that she did not have any evidence for it and she could not identify when that consultation had occurred. The Tribunal does not accept the applicant’s evidence in this regard.
(b)a DSP Medical Report dated 23 December 2013 in which Dr Hiran Fernando stated that the applicant was currently treating her back condition with the use of various medications including Lyrica, Mobic and Panadol Osteo, that past treatment had included physiotherapy, hydrotherapy, osteopathy, and the use of Vaultaran. Dr Fernando also noted that future/plan treatment included the use of analgesics and further osteopathy.
(c)a Medical Certificate in respect of the applicant dated 5 September 2016, in which Dr Vasantha Eliezer noted that the applicant was suffering lower back pain which radiates down to her leg and that past treatment included analgesia and physiotherapy and that current treatment included analgesia. In terms of a prognosis estimating how long the applicant’s symptoms were likely to affect her capacity to work and study, Dr Eliezer stated “uncertain”.
(d)a Job Capacity Assessment Report dated 19 September 2017 which stated that the applicant had seen Mr Love on a further occasion in respect of her back condition. In that report, Dr Greenway concludes that the condition is not fully treated and stabilised as the applicant “may benefit from optimal evidence-based treatment including a multi-disciplinary pain management approach, which may improve [the applicant’s] functional ability within the next two years”.
(e)Dr Singh’s letters of 30 January 2018, 29 May 2018, and 5 September 2018, all of which were after the qualification period. Dr Singh acknowledged the applicant’s back condition and noted that the applicant had been referred to orthopaedic specialist for “review”, although Dr Singh concluded “I don’t foresee significant improvement in functioning over the next few years”.

In her direct evidence before the Tribunal the applicant confirmed that during the qualification period she was not undertaking any treatment in respect of her lumbar and spine condition, other than taking drugs from time to time when necessary to manage her chronic pain. The applicant confirmed that she had previously undertaken 3 sessions of physiotherapy to manage her back condition in March, April and June of 2016, as well as some hydrotherapy, but indicated that she was not able to undertake further sessions because she could not afford it.
The applicant told the Tribunal that her lumbar and spine condition causes her very considerable pain and at times she has difficulty walking, lying down or even sitting. She described feeling considerable pain when she attempts to bend down, although she can physically do so. She told the Tribunal that she can bend down to pick up a cup off a coffee table unassisted. The applicant accepted that she is able to get up out of a chair unassisted but that she feels pain when doing so. The applicant stated that she is able to lift her arms above her head. The applicant told the Tribunal that she can drive a car but that it does cause her pain. The applicant accepted that she is able to move her head from side to side. The applicant told the Tribunal that from time to time she aggravates her condition as a consequence of pushing herself too much. She described occasionally having difficulty going to the toilet due to her pain when she has aggravated her condition. The applicant told the Tribunal that when she does not push herself too much and the condition is not aggravated, the pain is still considerable but bearable. However, this is only because she is taking her pain medication.
The applicant told the Tribunal that in around 2013/14 her condition had become particularly intense and she had been recommended to undertake home exercise. She noted her condition had improved because of the exercises that she was undertaking at that time. The applicant was not precise about exactly when this improvement occurred but indicated through her evidence that the improvement had taken place some time ago and prior to the qualification period. The applicant told the Tribunal that her condition was fully treated and stabilised at the qualification period and that it is not getting any better, only worse.
Based on the evidence before it, the Tribunal is satisfied that the applicant’s lumbar spine condition was fully diagnosed as at the qualification period and that the applicant was experiencing chronic pain as a consequence of the condition at that time, with a consequential mild functional impact on activities involving spinal function.
The Tribunal is also satisfied that the applicant had undertaken some treatment in the management of the condition leading up to the qualification period including taking pain medication, undertaking some limited physiotherapy and hydrotherapy and undertaking home exercises. However, the Tribunal is not satisfied that there is sufficient independent evidence of the applicant having undertaken a sustained program of physiotherapy or hydrotherapy in the management of the condition. In this context, the Tribunal notes that there is only independent evidence of the applicant having undertaken three physiotherapy sessions in the management of her back prior to the qualification period. The Tribunal does not accept the applicant’s contention that costs associated with therapy of that kind is a sufficient explanation for the applicant not having continued with the therapy. The Tribunal accepts the respondent’s contention that there is otherwise no medical evidence indicating that the applicant had completed a multidisciplinary pain management program at a recognised pain clinic.
Further, while the Tribunal notes the applicant’s contention that she had seen someone in respect of “nerve pain” in relation to her back the Tribunal is not satisfied that the applicant has consulted with the neurosurgery specialist as recommended to her. The Tribunal finds that there is no independent evidence to support the applicant’s contention that she has met with such a specialist. For these reasons, the Tribunal is satisfied that the applicant had not undertaken reasonable treatment with respect to her back condition as at the qualification period.
Accordingly, the Tribunal is not satisfied that the applicant’s lumbar and spine condition was fully treated and stabilised during the qualification period and on that basis the condition cannot be assigned points under the Impairment Tables.
Right shoulder condition
The respondent contends that the right shoulder condition is fully diagnosed but not fully treated or stabilised and therefore attracts zero points under the Impairment Tables.
There was limited substantive evidence before the Tribunal that related to the right shoulder condition and also limited evidence in relation to its treatment or prognosis.
In a Medical Report dated 23 February 2013, Dr Hiran Fernando listed the applicant’s right shoulder condition as a medical condition that is “generally well managed and that cause minimal or limited impact on ability to function”.
In her direct evidence the applicant stated that her right shoulder had been causing her difficulty at the time of the qualification period. She told the Tribunal that it causes her to experience pain at night and that as a consequence of the condition she has difficulty putting clothes on the washing line and doing some cleaning activities around the house. The applicant told the Tribunal that she had on a couple of occasions had injections to manage the condition but that they are of little effect as the condition reverts to its usual state within a short period of time. She also told the Tribunal that she otherwise takes pain medication to help manage her condition. The applicant conceded that she had not seen a specialist in relation to the shoulder condition specifically.
Having regard to the evidence before it, the Tribunal is satisfied that there is insufficient independent evidence in relation to the treatment and prognosis of the applicant’s right shoulder condition to conclude that the condition was fully treated and stabilised at the qualification period. Accordingly, the condition cannot be assigned points under the Impairment Tables.
Type II Diabetes
The respondent concedes that the applicant’s Type II diabetes could be considered to be fully diagnosed, treated and stabilised but contends that the condition cannot be assigned any more than zero points under the Impairment Tables.
In her direct evidence the applicant told the Tribunal that her diabetes had an impact on her daily life stating that when she forgets to take her tablets, which she acknowledged she does occasionally due to her memory loss, it causes her to be physically sick. However she accepted that if she takes her medication then the condition is well controlled. There was also evidence before the Tribunal that the applicant does not require insulin to manage her condition and has not had any hospitalisations for the condition.
On the basis of the evidence before it, the Tribunal is satisfied that the condition is fully diagnosed, treated and stabilised as at the qualification period, However, given that there is no evidence of a functional impact as a consequence of the condition, the condition is assigned a rating of zero points under the Impairment Tables.
Ankle and foot conditions
The respondent concedes that the applicant’s plantar fasciitis in the left foot, spurs and mild degenerative cortical irregularity of the right ankle were fully diagnosed at the qualification period. However, the respondent contends that there is insufficient medical evidence relating to the qualification period to conclude that the condition is fully treated and stabilised.
While there was evidence of a diagnosis in respect of the applicant’s ankle and foot conditions in 2012, the applicant appears to have stated to the JCA assessor on 23 March 2017 that her ankle and foot conditions had only recently been diagnosed and that no treatment had commenced. This is reinforced by the Radiologist Report of Dr Siwach on 17 January 2017.
In her direct evidence to Tribunal, the applicant stated that the condition had existed prior to 2017 and had been treated by inserting a special sole insert into her shoe and also using a gel but that it had been aggravated again in 2017. The applicant told the Tribunal that she was in considerable pain at that time as a consequence of the condition and was finding it difficult to sleep at night. The applicant told the Tribunal that she finds it very difficult to explain the condition and the pain she feels.
When the applicant was asked whether the three physiotherapy sessions she attended in 2016 were in respect of her ankle and feet conditions the applicant told the Tribunal that they were not, rather they were in respect of her back condition.
On the basis of the evidence before it, the Tribunal is satisfied that the applicant’s ankle and foot conditions were diagnosed as at the qualification period but is not satisfied that there is sufficient independent evidence in relation to the treatment and stabilisation of those conditions to conclude that they were fully treated and stabilised at that time. Accordingly, the Tribunal finds that the conditions cannot be assigned points under the Impairment Tables.
Mental health conditions
The respondent conceded that the applicant’s mental health conditions of anxiety and depression were fully diagnosed at the qualification period. However, the respondent contends the conditions were not fully treated and stabilised during the qualification period on the basis that it was possible further treatment could result in significant functional improvement within two years.
The Tribunal accepts that the applicant’s mental health conditions of depression and anxiety were fully diagnosed at the qualification period, noting this has been confirmed by a number of reports including by Dr Greenway in June 2017 and also by Dr Singh in January 2018.
Dr Greenway has concluded that the applicant suffers from a number of mental health conditions in his reports, noting that the applicant had suffered a deterioration in her mental health against a background of a marriage breakdown, a work injury and other personal difficulties.
Dr Greenway describes the applicant’s mental health conditions as including a chronic pain disorder with dysphoria, severe anxiety, and an eating disorder. There was very little evidence before the Tribunal in relation to the applicant’s eating disorder but the Tribunal otherwise accepts Dr Greenway’s diagnosis in respect of these mental health conditions.
In his letter of 26 June 2017, Dr Greenway noted that the applicant had undertaken psychological counselling but had only attended a few sessions which was “insufficient to have any effect”, although Dr Greenway goes on to conclude that he doubts whether long-term psychological treatment would have “any better effect”.
In his report dated 14 February 2018, Dr Greenway confirms that the conditions are chronic and that the applicant has had the conditions for over two years. He describes the applicant as suffering dysphoria with symptoms including a sense of hopelessness, suicidal thoughts, disordered sleep, agitation with excessive crying, irritability and social isolation. He describes the applicant’s level of anxiety as “persistently high”, stating that “it affects her concentration and her attention, so much so that she may have to stop driving. Her short term memory is poor”. Dr Greenway describes the prognosis for the applicant as very poor, stating that the applicant’s condition will continue “without relief, as it has for the last four or so years. She is just incapable. I cannot imagine her doing any kind of work or being employed. For these reasons I support her application for a disability pension”.
In his report dated 30 January 2018, Dr Singh stated that the applicant had “been under the care of a psychologist” and had “been reviewed by psychiatrist in the past”. However, Dr Singh does not provide any further details in relation to these consultations. Dr Singh stated that the applicant was at that time on nortriptyline for the management of her depression and anxiety.
In an Employment Services Assessment Report dated 25 June 2018 the assessor, a registered psychologist, states that past treatment has not been detailed in previous medical evidence from GPs or Dr Greenway. However, the report states that the applicant “reported that she had previously consulted a counsellor about three years ago (five sessions), in the context of stress related to WorkCover findings that her back injury “was age-related and not work-related”. The assessor notes that the applicant “stated that she initially consulted her Clinical Psychologist in early 2017 and that she has had three sessions to date and last consulted him in June 2017”. The report goes on to state that the applicant “reported that moderate to severe mental health symptoms do not interfere with her ability to attend to self-care needs and daily functioning. [The applicant] reported that she maintains regular contact with the children, that she drives and is able to go outside local areas”. The assessor goes on to conclude that the condition is assessed as “not fully treated and stabilised for the purpose of this assessment, as [the applicant] is yet to access ongoing, optimal evidence-based treatment, including ongoing psychotherapy, psychiatrist assessment and management, pharmacotherapy, which may enhance [the applicant’s] functional ability within the next two years”.
The applicant’s Medicare Patient History Report records the applicant having two consultations with a psychologist and six GP consultations for mental health treatment from 24 August 2013 up until the end of the qualification period. The report records the applicant as having attended a psychologist at least 10 times following the qualification period and first attended a clinical psychologist on 31 May 2017 (which is outside the qualification period).
The applicant’s Pharmaceutical Benefits Scheme Patient Summary records the applicant as having been prescribed the following medications in the management of her mental health conditions:
(a)temazepam on 4 August 2014 and supplied on 6 August 2014 but not again until 22 March 2018;
(b)paroxetine on 28 October 2014 which was supplied on 11 November 2014;
(c)amitriptyline on 7 April 2017 which was supplied the same day; and
(d)nortriptyline on 15 May 2017 which was supplied on 15 May 2017 and again on 21 December 2017 and 2 July 2018.
In her evidence before the Tribunal, the applicant said that her mental health had declined following her injury and associated WorkCover claim but that she found it difficult to recall the precise details of the treatment that she has received because her memory has been impacted. The applicant stated that she believed she had been seeing Dr Greenway for “around two years” but accepted that it was after the end of the qualification period. The applicant accepted that when she made her application for DSP she did not include her mental health conditions in her claim form and accepted that her mental health conditions had worsened since that time. The applicant stated that she could not recall precise details about medication she had been prescribed in the management of her mental health conditions but told the Tribunal that she had some difficulty taking the medication because it made her feel like a “zombie”.
While acknowledging Dr Greenway’s assessment of the applicant, having considered the whole of the evidence, Tribunal accepts the respondent’s contention that in the period leading up to and including the qualification period the treatment of the applicant’s mental health conditions was intermittent both in terms of pharmaceutical treatment and also in terms of clinical consultations. The Tribunal does not doubt in any way that the applicant suffers as a consequence of her mental health conditions. However, having regard to the evidence before it the Tribunal is not satisfied that the applicant’s mental health conditions were fully treated and stabilised at the qualification period. Accordingly, the Tribunal finds that the conditions cannot be assigned a rating under the Impairment Tables.
Miscellaneous conditions
In addition to each of the conditions addressed above, there were a number of other conditions that were referred to by the applicant at the hearing or otherwise referenced in the Tribunal materials which the Tribunal accepts were fully diagnosed as at the qualification period which, given the absence of any substantive independent evidence regarding treatment and prognosis, the Tribunal is satisfied cannot be assigned more than zero points under the Impairment Tables. Those conditions include: hypertension; hypercholesterolemia, mild lymphocytosis, endocrine system dysfunction.
In reaching this conclusion the Tribunal has had regard to:
(a)the Job Capacity Assessment Report dated 21 April 2017 which states that the applicant’s mild lymphocytosis had only been recently diagnosed and that the applicant’s doctor is “currently investigating the condition with future referral to specialist”. The prognosis is described as “with further reasonable treatment… the condition may improve”. The report also states that the applicant reported “no symptoms” in respect of her hypercholesterolemia condition.
(b)the Employment Services Assessment Report dated 25 June 2018 which states that past current and future treatment and prognosis is not indicated in the medical evidence in respect of hypertension, endocrine system dysfunction and circulatory system (mild lymphocytosis).
(c)the Job Capacity Assessment Report dated 9 November 2018 which concludes nil impairment as a result of nil functional impact in respect of hypertension and circulatory system (mild lymphocytosis) on the basis of a consultation with the applicant’s GP, Dr Singh, on 15 October 2018.
In addition, in his February 2018 report, Dr Greenway stated that the applicant suffered from cognitive disabilities and obesity but did not provide any substantive details in relation to diagnosis, treatment or prognosis in respect of these conditions. Further in addition, the Tribunal materials included references to the applicant having suffered from left side shoulder osteoarthritis as well as a right sternoclavicular. The Tribunal is satisfied that there is insufficient independent medical evidence to support a conclusion that these conditions were fully diagnosed, treated and stabilised as at the qualification period. Accordingly, these conditions cannot be assigned a rating under the Impairment Tables.
CONCLUSION
For the reasons set out above, the Tribunal finds that each of the applicant’s conditions are assigned a zero impairment rating under the Impairment Tables.
In these circumstances, it is not necessary for the Tribunal to go on to consider whether the applicant had a continuing inability to work at the time of her claim.
In reaching this conclusion the Tribunal fully accepts that the applicant suffers from her claimed conditions and that she is impaired in her functional capacity as a result. However, in assessing her eligibility for DSP the Tribunal must apply the relevant law. This requires the Tribunal to be satisfied that her conditions were fully treated and stabilised as at the qualification period. For the reasons set out above, the Tribunal is not satisfied in this respect. The Tribunal notes that even if it had taken a different view on this point, based on the applicant’s own direct evidence, it is not satisfied that the applicant’s functional impact as at the qualification period would attract the required rating of 20 points, although it certainly accepts that an assessment at a future point in time may achieve a different result.
DECISION

The decision under review is affirmed.

I certify that the preceding 76 (seventy six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

...............................[sgd]....................................
Associate
Dated: 1 July 2020

Date of hearing: 12 March 2019

Applicant: By telephone

Solicitors for the Respondent: Ms Jenna Molan

[2020] AATA 2045

1 July 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	12 March 2019
Applicant:	By telephone
Solicitors for the Respondent:	Ms Jenna Molan