Perry and Secretary, Department of Social Services (Social services second review) - [2019] AATA 5405

Perry and Secretary, Department of Social Services (Social services second review) [2019] AATA 5405 (16 December 2019)
Division:GENERAL DIVISION
File Number: 2018/2965
Re:Geoffrey Perry
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:16 December 2019
Place:Brisbane

The Tribunal affirms the decision under review.
........................[SGD]................................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
McDonald and Comcare [2013] AATA 105
REASONS FOR DECISION
Member D Mitchell
16 December 2019
INTRODUCTION

On 26 January 2017, Mr Geoffrey Perry (the Applicant) lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T41, pages 214-243, DSP claim form.
The claim was rejected on 9 October 2017,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the                 Impairment Tables. The decision was reviewed by an Authorised Review Officer (ARO) who affirmed the decision to refuse the application for DSP on 29 January 2018.[3]
[2]     Exhibit 1, T Documents, T48, pages 261-262, Letter: Rejection of DSP claim.
[3]     Exhibit 1, T Documents, T50, pages 264-268, ARO Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on 27 April 2018.[4]
[4] Exhibit 1, T Documents, T2, pages 5-8, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 25 May 2018.[5]
[5] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 8 November 2019, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[6]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[7] and
3.Does the Applicant have a continuing inability to work?[8]
[6]     Section 94(1)(a) of the Act.
[7]     Section 94(1)(b) of the Act.
[8]     Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)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
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[9] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[10] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[11]
[9]     Section 6(1) of the Determination.
[10]    Section 6(2) of the Determination.
[11]    Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: if the person’s condition causing the impairment; is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[12]
[12] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[13]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[13] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[14]
[14] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[15]
(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.
[15] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16]
[16] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[17] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[18] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[19]
[17]    Section 10 of the Determination.
[18]    Sections 10(3) and (4) of the Determination.
[19]    Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[20]
[20] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[21]
[21] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[22]
[22] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[23]
[23] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 26 January 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 27 April 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[24] The Respondent considers the Applicant’s impairments include joint pain,[25] diabetes[26] and mental health and sensitivity to electromagnetic fields[27] conditions.
[24]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 5, paragraph 32.
[25]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 6-7, paragraphs 36-44.
[26]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 9-10, paragraphs 54-56.
[27]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 7-9, paragraphs 45-53.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
There is a large amount of material before the Tribunal relating to both previous claims for DSP and this present claim. This material has been submitted at various stages through this application and review process. The Hearing in this matter was significantly delayed given the Applicant’s claim for DSP was made on 25 January 2017. This delay however was at the request of the Applicant who was seeking to obtain further reports in relation to his sensitivity to electromagnetic fields. Although no such specific reports materialised the Applicant did provide a large volume of material in relation to research regarding the effects of electromagnetic fields.
At the Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross-examination from the Respondent. I consider that the Applicant was open with his answers to the questions he was asked and was forth coming in providing his evidence. The Applicant’s focus remained on his sensitivity to electromagnetic fields and his beliefs that electromagnetic fields have effects on some members of the community. It was difficult for the Applicant to separate his concerns around his sensitivity to electromagnetic fields from other aspects of his health and life.
Joint pain condition
The Applicant’s joint pain condition relates to his right foot pain and overall pain conditions.
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant has had ongoing right foot pain since at least 1999.[28] The Applicant was diagnosed as having arthritis in his right foot which has been reviewed by orthopaedic specialist’s Dr Terry Saxby on 19 May 1998[29] and Dr James Bodel on 16 October 2002.[30]
[28]    Exhibit 1, T Documents, T52, page 273, Medical Report by Dr Lloyd.
[29]    Exhibit 1, T Documents, T22, pages 144-145, Medical Report – DSP form by Dr Kearney.
[30]    Exhibit 1, T Documents, T30, page 171, Medical Report – DSP form by Dr Kearney and T35 page 202,   Health Professional Advisory Unit Opinion.
A Health Professional Advisory Unit (HPAU) opinion was completed by Dr Anthony Turner on 23 July 2015 on behalf of the Respondent. Dr Turner provided that it was extremely likely that the Applicant’s lower limb condition had slowly and steadily deteriorated and there was no alternative future treatment that was expected to make a significant change in the Applicant’s function.[31]
[31] Exhibit 1, T Documents, T35, pages 200-203, Health Professional Advisory Unit Opinion.
Based on the opinion of Dr Turner the Respondent accepts that the Applicant’s right foot condition is fully diagnosed, treated and stabilised.[32]
[32] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 7, paragraph 39
Dr Robert Kearney the Applicant’s general practitioner described the impact of the Applicant’s right foot condition as being right foot pain with standing for more than half an hour and walking more than 200 metres.[33]
[33] Exhibit 1, T Documents, T34, page 194, Job Capacity Assessment Report, T44, page 248, Medical Certificate by Dr Kearney, T45, page 249, Medical Certificate by Dr Kearney, Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, Attachment B, Dr Kearney report dated 14 May 2016.
In a Centrelink Medical Report dated 18 February 2015, Dr Kearney diagnosed the Applicant with severe arthritis, symptoms being widespread body aches including the foot and ankle. Dr Kearney provided that the Applicant may need this condition reviewed by a rheumatologist and provided that the condition was worse than it has been in the past and that the interplay with depression could a factor.[34]
[34] Exhibit 1, T Documents, T33, pages 181-191, Medical Report – DSP form by Dr Kearney.
At the Hearing the Applicant told the Tribunal:
·He now takes Targin to combat pain in his right ankle. The pain has gotten a lot worse.
·At the time of his application he was taking Tramadol and that was upsetting to his body.
·He could walk to the shops or bus stop.
·His walking during the Relevant Period was dependent upon the medication he was taking, if he walked for a prolonged distance he would pay for it the next day or night with his feet.
·He could stand up for at least 10 minutes. He did the mowing around his house and paid for it that afternoon or the next day.
·He feels that his right foot condition should be assigned more than 5 points under Table 3 of the Impairment Tables.
·He did not see a rheumatologist as he could not afford it.
·He has things for sale but they have not sold yet.
·He believes the public health system still has a gap in fees to seek treatment.
·He has been stressed due to debt collectors seeking money he owes for rates and different things.
On cross-examination, the Applicant told the Tribunal:
oHe was unsure whether his joint pain was from the emissions from the electromagnetic fields.
oHe had not been to see a physiotherapist.
oHe drives to Lismore and Casino.
oHe lives on his own and he struggles some days due to his poor sleep.
The Respondent had initially contended that the Applicant’s right foot condition could be assigned 5 points under Table 3 of the Impairment Tables, however as result of the Applicant’s evidence at hearing the Respondent contends that as the Applicant is able to stand for more than 10 minutes and there is no evidence that he required the use of a walking aid, that a zero point rating should be assigned.
The Respondent contended that the Applicant’s overall pain condition was not fully diagnosed, fully treated and fully stabilised at the Relevant Period as there is no evidence that any further review or investigation of the condition has occurred.[35]
[35] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 6-7, paragraph 40.
Table 3 of the Impairment Tables requires for 5 impairment points to be assigned that the following criteria is met:

38.     5

There is a mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

(a)      the person is unable to stand for more than 10 minutes;

(b)      the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

In considering the medical evidence before the Tribunal, I accept that the Applicant’s right foot pain was fully diagnosed, fully treated and fully stabilised at the Relevant Period. There is no doubt that this condition causes the Applicant pain and affects his mobility, and based on his evidence this condition has worsened since he made his claim for DSP. As during the Relevant Period, the Applicant could stand for at least 10 minutes, albeit with subsequent pain, and there is no evidence that he required the use of a walking aid, he does not meet the requirements to be assigned 5 points under Table 3 of the Impairment Tables. As such I assign the Applicant’s right foot pain condition zero impairment points.
There is limited information before the Tribunal in relation to the Applicant’s all over joint pain condition. Further the Applicant gave evidence that he has not undertaken specialist review for this condition. Consequently, I find that the Applicant’s all over joint pain condition was not fully diagnosed, fully treated and fully stabilised at the Relevant Period.

Accordingly, the Applicant’s all over joint pain condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Diabetes condition
In a medical certificate dated 3 January 2017, Dr Kearney diagnosed the Applicant as having diabetes with the date of onset being 29 January 2012. Dr Kearney provided that the condition is poorly controlled, the Applicant is taking insulin and symptoms include blurred vision and lethargy.[36]
[36] Exhibit 1, T Documents, T40, page 213, Medical Certificate by Dr Kearney.
At the Hearing the Applicant told the Tribunal he postponed his appointment with Chelsea McMahon, a specialist at the St Vincent’s Hospital in Lismore, because there is a gap fee of $138. He thinks that his referral to Dr McMahon only occurred in April this year.
The Respondent contended that the Applicant’s diabetes condition was fully diagnosed but not fully treated and fully stabilised at the Relevant Period as there is no evidence of any further treatments or investigation that have been undertaken.[37]
[37] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 9-10, paragraphs 54-56
There is limited information before the Tribunal in relation to the ongoing treatment, investigation and management of the Applicant’s diabetes condition during the Relevant Period. Further the Applicant gave evidence that he has not undertaken specialist review for this condition. Consequently, I find that the Applicant’s diabetes condition was fully diagnosed, however was not fully treated and fully stabilised at the Relevant Period.
Accordingly, the Applicant’s diabetes condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Mental health and sensitivity to electromagnetic fields condition
The Respondent contends that the Applicant’s mental health and sensitivity to electromagnetic fields condition was not fully diagnosed, treated and stabilised.[38] The Respondent provided the following submissions:[39]
46. The applicant has been diagnosed with different mental health conditions. In a report dated 18 February 2015, Dr Kearney states that the diagnosis of severe depression and anxiety was confirmed by psychiatrist, D Katz on 16 November 2010 and psychologist, Paul Masterman. Treatment included diazepam and in previous years, counselling (T33, p184). In his report dated 16 August 2014, Dr Kearney states that the applicant has not taken anti-depressants though they were needed at times. Dr Kearney states the applicant was reluctant to take anti-depressants due to possible side effects (T30,p168). Dr Kearney stated in another report that the applicant was concerned about taking anti-depressants due to the number of tablets he was taking and he wanted to try natural treatments (T33, p185).
47. Dr Katz prepared a medico-legal report dated 22 September 2010 where he concluded that the applicant was experiencing significant feelings of frustration and anger but he did not have an anxiety or depressive disorder (35, p201). The applicant saw clinical psychologist, Paul Masterman in 2013 who diagnosed him as having an Adjustment Disorder. Mr Masterman recommended counselling which the applicant did not continue (T35, p201)
48. Another mental health condition is outlined in a report dated 14 May 2016. Dr Kearney states that the applicant has "brief psychotic disorder (diagnosis as per Dr Jules Petroff, psychiatrist) with a date of diagnosis of 23 March 2016." Attachment B). It goes on to state that the applicant was prescribed risperidone on the same date and that further investigation was planned including, hearing test, carotid artery Doppler, MRI brain, with treatment determined by the relevant results (Attachment B).
49. In medical certificates from 14 October 2016 onwards, Dr Kearney describes the mental health condition as being "stress/ brief psychotic disorder" and a temporary condition (T34, p212; T40, p213; T44, p248; T45, p249). Dr Kearney states that past, current and planned treatment included Valium and counselling. He also states that the applicant was started on Risperdal by a psychiatrist and the applicant would have psychotherapy with the psychiatrist.
50. In a report dated 25 March 2017, Dr Kearney states that the applicant is sensitive to electromagnetic waves and this is having a significant effect on his mental health (T43,246). Dr Kearney says that the applicant was to see his psychiatrist, Dr Petroff about the issue. The applicant advised the AAT1 at the hearing that he had followed Dr Petroff's recommended treatment for 2 months but that he ceased treatment due to the impact on his appetite and general wellbeing (T2, p6).
51.In relation to the sensitivity to electromagnetic fields, the Secretary contends that there is insufficient evidence to establish that the applicant has a sensitivity and that it is exasperating a mental health condition. The general practitioner's report dated 25 March 2017 does state that the applicant is in distress due to his sensitivity. However, the applicant has provided no evidence to show that other potential conditions have been ruled out (as discussed in Dr Kearney's report dated 14 May 2016). Even if other conditions were ruled out, the Secretary would contend that due to the lack of information about electromagnetic sensitivity, the applicant would need to produce evidence from a relevant medical specialist. The Australian Radiation Protection and Nuclear Safety Agency states that there is no clear diagnosis criteria for electromagnetic sensitivity and the science so far has not provided evidence that electromagnetic fields (EMF) exposure is the cause (Attachment E). The World Health Organisation is also studying the phenomena but has so far concluded that there is no scientific basis to link electromagnetic sensitivity to EMF exposure (Attachment F).
52. The Secretary contends that the mental health condition is not fully diagnosed, treated and stabilised in the qualification period. There was a new diagnosis of brief psychotic disorder in 2016 with no evidence of period of treatment with medication and whether the condition has improved or deteriorated. There is no evidence on how the psychotic condition interacted with the depression and anxiety and whether the applicant still has these conditions. There is also limited medical evidence to show how the EMF exposure impacts the mental health conditions.
[38] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 7, para 45
[39] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 7-9, paragraphs 46-52
In both the Directions Hearings prior to the hearing of this matter and at the Hearing the Applicant was focused on the effects that he believes are caused by his sensitivity to electromagnetic fields have on his body, sleep and mental health. The Applicant referred to his condition as EHS being Electromagnetic Hypersensitivity Syndrome and this reference will be used from hereon in relation to the Applicant’s evidence.
There was no doubt having considered the information provided by the Applicant and the evidence he provided at Hearing that the Applicant’s belief that he has an EHS condition is the focus of his life. The Applicant told the Tribunal that he had been trying to get a report by Dr Cooper who is from Tasmania whom he had seen last year in relation to this condition, however he had been unable to afford the report. It is noted that even if a report had have been provided by Dr Cooper, the doctor had not interacted with the Applicant prior to or during the Relevant Period and as such the relevance of any such report to this present claim for DSP is uncertain.
At Hearing the Applicant told the Tribunal:
oHe is not getting proper sleep. Pulsing happens at night and then he cannot sleep.
oHe is getting pulsing and hearing sounds and he is documenting this every day and has four or five years’ worth of records.
oThat there was relevant litigation in Sydney where a group of doctors banded together to engage a barrister to stop the 5G rollout in Randwick. The newspaper reported that the mobile network was abandoned due to community pressure however that is not true.
oMcDonald v Comcare sets the precedence for EHS in Australia and the Respondent sent him the details to help him to find a doctor that deals with EHS. He contacted Bruce Hocking, who put him onto Rodney Croff who is at Wollongong University, however he could not get in contact with him.
oThat Dr Cooper is the man for EHS. He spoke to Dr Cooper 12 months ago and he got his colleague to run out to the car and give him a container full of melatonin tablets because he explained to him after the meeting what had been happening to him.
oHe had a hearing test to rule out tinnitus and he had the charts of his hearing and there is no tinnitus.
oTelstra had put up a new tower one kilometre from him and they did not notify the community. He said: ”... when it fired up I had bleeding in my phlegm, I had all this prickly feeling over my skill. This is reported with the doctor.”
oHis sensitivity to electromagnetic fields started happening in 2012 when he was living in Cabarita. He moved from there 5 years ago but a few days after moving his EHS started again.
oThere are others in his area that are experiencing the noises and pulses and are being effected by EHS.
oHe had a friend come over one morning, who brought over a young farm hand who wanted to show him something on his mobile phone. He normally does not allow mobile phones in his house but he let his guard down. He used his testing equipment to find the emissions and his ears started to heat up and the metre went through the roof. He told him to turn the phone off. He got a headache and by 3 pm that afternoon he could not move, he felt wiped out.
oWhen asked if he had had an MRI or any of the other tests suggested by Dr Karney, he said “No, well Dr Petroff did recommend was it the arteries in the side of the neck to have that but I said “No”, I just told him clearly it’s external, it’s not an internal thing”.
oWhen asked about his mental health conditions and the report of Dr Petroff that is referenced, however is not provided, referring to a diagnosis of brief psychosis and previous diagnosis of depression and stress and what was the situation in the Relevant period he said he was familiar with seeing Dr Petroff. Dr Petroff put him on antidepressants however he had an adverse effect – they made him have really bad thoughts. He took the tablets for a while but stopped and he will not be taking them again.
oThe EHS makes him very fatigued and then he forgets things.
oHe does not take any medications in relation to the EHS.
oWhen referred to the WHO document included in the Respondent’s Statement of Facts, Issues and Contentions that stated:
EHS is not a medical diagnosis. Nor is it clear that it represents a single medical problem. Physicians, treatment of affected individuals should focus on the health symptoms and the clinical picture, and not on the person’s perceived need for reducing or eliminating EMF for the workplace or home.
He said that does not accord with what he has read. He gave an example of cancer clusters in England after a tower was put up in a street.
oIn making reference to Exhibit 8, in particular a letter addressed to ‘Dear Maureen and all’ and signed from Ray and sections that he had highlighted:
oARPANSA cannot give medical advice
oARPANSA omissions are outdated
oDr Cooper is regarded as the foremost expert in court as at present for EHS
On cross-examination, the Applicant told the Tribunal:
oWhen he travels into Lismore or Casio it can take him a number of days to recover because of the microwave emissions. He has worked out the road with less emissions and takes that way instead. He carries a protective metre on his pocket and when he drives into towns it usually screams and goes from 1 megahertz up to 6 gig.
oHe saw Dr Petroff in 2016 and he told him about the effects of the medication and he wrote out a different script.
oHe did not continue to take the medication.
oHe only had a few sessions with Dr Petroff and the therapy was going to be drugs.
oHe has had hearing tests, the results are in his filing cabinet.
oHe did not have the artery Doppler as he knew the problem is external not internal.
oHe takes Valium to help him sleep and Targin to get through the day with his feet. He does not like the idea of taking drugs.
At Hearing the Respondent acknowledged that the Applicant has done a lot of his own research into understanding electromagnetic field sensitivity and how it can affect people. The Respondent submitted that the information that the Applicant has provided, is general and is about how the condition may affect people and their health. The Respondent contended:
oThat in order for an impairment to be caused by the Applicant’s EHS there needs to be specific specialist evidence.
oThe information from the Applicant’s general practitioner should be afforded less weight because it appears from what the Applicant said at Hearing and from the evidence that it is more a case of a supportive general practitioner, assisting the Applicant and accepting what he has been telling him about the condition.
oThere is no evidence to say that the general practitioner has any speciality in the field.
The World Health Organisation factsheet on Electromagnetic fields and public health – Electromagnetic hypersensitivity provides that:[40]
[40]    Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, Attachment F, World Health Organisation – Electromagnetic fields and public health.
EHS is charactised by a variety of non-specific symptoms, which afflicted individuals attribute to exposure to EMF. The symptoms most commonly experienced include dermatological symptoms (redness, tingling, and burning sensations) as well as neurasthenic and vegetative symptoms (fatigue, tiredness, concentration difficulties, dizziness, nausea, heart palpitation and digestive disturbances). The collections of symptoms is not part of any recognised syndrome.
…….
Conclusions
EHS is characterized by a variety of non-specific symptoms that differ from individual to individual. The symptoms are certainly real and can vary widely in their severity. Whatever its cause, EHS can be a disabling problem for the affected individual. EHS has no clear diagnostic criterial and there is no scientific basis to link EHS symptoms to EMF exposure. Further, EHS is not a medical diagnosis, nor is it clear that it represents a single medical problem.
Physicians: Treatment of affected individuals should focus on the health symptoms and the clinical picture, and not on the person’s perceived need for reducing or eliminating EMF in the workplace or home. This requires:
·         a medical evaluation to identify and treat any specific condition that may be responsible to the symptoms.
·         a psychological evaluation to identify alternative psychiatric/psychological conditions that may be responsible for the symptoms,
·         an assessment of the workplace and home for factors that might contribute to the presented symptoms. These could include indoor air pollution, excessive noise, poor lighting (flickering light) or ergonomic factors. A reduction of stress and other improvements in the work situation might be appropriate.
For EHS individuals with long lasting symptoms and severe handicaps, therapy should be directed principally at reducing symptoms and functional handicaps. This should be done in close co-operation with a qualified medical specialist (to address the medical and psychological aspects of the symptoms) and a hygienist (to identify and, if necessary, control factors in the environment that are known to have adverse health effects of the relevance to the patient).
Upon review of McDonald and Comcare [2013] AATA 105, the case to which the Applicant referred as being the leading case in relation to EHS it is clear that sensitivity to electromagnetic frequencies is a real issue, that there are practitioners, both medical and otherwise that specialise in this field and that a large volume of research has been and continues to be undertaken. Unlike in the McDonald case the Applicant does not have relevant medical evidence to support his reported sensitivity to electromagnetic fields.
While the Tribunal accepts that the Applicant has previously been diagnosed and received some treatment in relation to mental health conditions there is insufficient specific evidence supporting that this condition was fully diagnosis, fully treated and fully stabilised at the Relevant Period.
A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[41] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[42] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[43] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[44]
[41]    Section 6(3) of the Determination.
[42]    Section 6(4) of the Determination.
[43]    Section 6(2) of the Determination.
[44]    Section 8(1) of the Determination.
Based on the material before the Tribunal there is no doubt that EHS exists and the Applicant has provided evidence and research into potential effects of electromagnetic hypersensitivity. The issue for the Tribunal in this matter however is that the Applicant has not provided any specific evidence which is supported by relevant medical experts in relation to his condition. Further, all relevant tests to rule out other medical conditions have not been undertaken by the Applicant. It is unclear how any underlying or current mental health condition may be impacting upon the functional impairment being experienced by the Applicant. Consequently, I am not satisfied that the Applicant’s EHS condition is fully diagnosed, fully treated or fully stabilised at the Relevant Period.
Accordingly, the Applicant’s mental health and sensitivity to electromagnetic fields condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
Continuing Inability to Work
As I have found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s all over joint pain, diabetes, mental health and sensitivity to electromagnetic fields conditions could not be considered permanent for the purposes of applying the Impairment Tables.
I find that the Applicant’s right foot pain was fully diagnosed, fully treated and fully stabilised during the Relevant Period and therefore can be considered permanent for the purposes of applying the Impairment Tables and could be assigned zero impairment points under Table 3.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

............[SGD]..............................
Associate
Dated: 16 December 2019

Date of hearing: 8 November 2019

Applicant: By Phone

Advocate for the Respondent: Ms Donna Smith

Solicitors for the Respondent: Department of Human Services

Date of hearing:	8 November 2019
Applicant:	By Phone
Advocate for the Respondent:	Ms Donna Smith
Solicitors for the Respondent:	Department of Human Services