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

[2024] AATA 107

Pham and Secretary, Department of Social Services (Social services second review) [2024] AATA 107 (1 February 2024)

Division:GENERAL DIVISION

File Number:2023/0231          

Re:Thanh Pham  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:1 February 2024

Place:Brisbane

The decision under review is affirmed.

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

Member D Mitchell

Catchwords

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

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Member D Mitchell

1 February 2024

INTRODUCTION

1. On 7 March 2022, Ms Thanh Pham (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1] The Applicant’s claim for the DSP, listed her disabilities or medical conditions that significantly affect her ability to work to include bilateral shoulder injuries, regional muscular pain syndrome, chronic cervical pain, adjustment disorder with mixed anxiety, depressed mood and PTSD.[2]  

   [1]     Exhibit 1, T Documents, T40, pages 208-238, Claim for Disability Support Pension.

   [2]     Exhibit 1, T Documents, T40, page 232, Claim for Disability Support Pension.

2. On 21 May 2022,[3] the Applicant’s claim was rejected on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables.

   [3]     Exhibit 1, T Documents, T45, pages 251-252, Centrelink Notice: Rejection of DSP Claim.

3. The Applicant sought review of that decision.[4] On 10 August 2022, an Authorised Review Officer (ARO) affirmed the decision.[5]

   [4]     Exhibit 1, T Documents, T52, pages page 283, Centrelink file notes.

   [5]     Exhibit 1, T Documents, T48, pages 256-262, Authorised Review Officer Decision and Notes.

4. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD).[6]

   [6]     Exhibit 1, T Documents, T49, pages 263-264, Request for Statement from the SSCSD.

5. On 22 November 2022, the SSCSD affirmed the decision to refuse the Applicant’s claim for the DSP.[7]

   [7]     Exhibit 1, T Documents, T2, pages 7-17, Decision of the SSCSD.

6. On 9 January 2023, the Applicant made an application for a second-tier review of this matter by the General Division of this Tribunal.[8]

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

7. On 23 January 2024, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.

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

   THE LAW

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

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

    1.does the Applicant have a physical, intellectual or psychiatric impairment;[9]

    2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[10] and

    3.does the Applicant have a continuing inability to work?[11]

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

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

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

11. Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[12]

    [12]    Section 6(3)(a) of the Determination.

12. The word “permanent” takes on a specific meaning for the purposes of the DSP. To be considered permanent for the DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[13] As such, a condition could be considered permanent from the perspective of it being life-long but would not meet the definition under the DSP requirements.

    [13]    Section 6(4) of the Determination.

13. 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 is planned in the next two years.[14]

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

14. 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.

15. 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.

16. 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.[17] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[18]

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

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

17. 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) of the Act, which requires that a person must:

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

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

    (c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.

18. A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[19]

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

19. The Administration Act sets out that qualification for the 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 the DSP is the date the person becomes qualified.[20]

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

20. The Federal Court and the Tribunal 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 the DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered; however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[21]

    [21]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922,[34]; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [34]-[35]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].

    RELEVANT PERIOD

21. The Relevant Period in this matter commenced on 7 March 2022, the date the Applicant lodged his claim for DSP. It ended 13 weeks later on 6 June 2022. 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

22. 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.[22] The Respondent considers the Applicant’s impairments, for the purposes of the claim for the DSP in question, consist of myofascial pain syndrome[23] and mental health conditions.[24]

    [22]    Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 38.

    [23]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 7-10, paragraphs 39-45.

    [24]    Exhibit 3, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 46-50.

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

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

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

    EVIDENCE

24. The Tribunal notes that there is a large number of medical certificates and reports before it, in particular from the Applicant’s treating general practitioner, Dr Tran. Throughout the present Tribunal process, the Respondent sought an opinion in relation to the Applicant’s claim for the DSP from the Health Professional Advisory Unit (HPAU).  As a result, a HPAU report dated 25 July 2023[25] was provided by Dr Margaret.

    [25]    Exhibit 2, Supplementary T Documents, ST2, pages 22-33, Health Professional Advisory Unit Report.

25. The Tribunal has had the opportunity to review the evidence before it in totality and considers that the summary of that evidence as outlined in the HPAU Report completed by Dr Margaret, accurately reflects the situation.

    Applicant’s evidence

26. At the Hearing, the Applicant told the Tribunal that:

    ·In 2011, she was sacked from her job in a factory due to her shoulder. She said that her shoulder pain meant she was unable to work, and the specialist said that she could not work in the future because of this pain.

    ·In 2011, everything happened at once. She got divorced and her mother passed away.

    ·She did not apply for the DSP in 2011 as she did not want to believe what the specialist had said. She wanted to be able to work, and she wanted to get better.

    ·She has tried everything to help her pain including injections, acupuncture and physiotherapy, but it has not helped.

    ·She had asked the doctor for an operation to fix her pain, but they said there was no operation available as her pain was muscular.

    ·Each year her conditions get worse and worse. She tries things, but nothing gets better.

    ·In 2019, she had an accident and now has neck issues.

    ·In 2019, she had experienced a robbery at her home and as a result, she is scared.

    ·She gets triggered when she sees a person similar to the person who attempted to rob her home. She now has everything locked and has put up security cameras.

    ·She is unable to sleep due to her pain and is tired all the time as a result.

    ·She takes tablets to help her sleep.

    ·She has not engaged with specialists after 2011 as she cannot afford to, but she sees her general practitioner.

    ·She had asked her doctor if there was a different way to see a specialist and she had an appointment in December.

    ·She saw a psychologist a couple of years ago but had to pay.

    ·She takes Panadol and Nurofen. However, medication specifically for her shoulder pain resulted in tummy sickness, so she uses Chinese Medicine.

    ·She would prefer to work if she could.

27. On cross-examination, the Applicant:

    ·Confirmed that her pain condition started in 2010 and had continued to spread throughout her body since.

    ·Said that she had contacted a psychologist after receiving the letter from the Pain Specialist Senior Medical Officer, however there was still a cost.

    ·Said she has tried anti-depressants, but they make her tummy bad, so she stopped taking them.

    ·Said she experiences pain in her shoulders, neck and middle back.

    ·Said that sometimes she cannot lift her head.

    ·Said that she is unable to lift her arm above her shoulder.

    ·Said she can drive a car to the doctors if her daughter is unable to take her, but she needs to move her whole body.

    ·Said she cannot work because of the pain in her body.

    ·Said she does not understand why there is not enough evidence of treatment as she has tried everything, but her pain gets worse, and she is not sure what else she can do.

    ·Said she has not seen a psychiatrist or clinical psychologist as she does not have the money for an appointment.

    HPAU Report

28. In a report dated 25 July 2023,[26] Dr Margaret of the Respondent’s HPAU outlined that her opinion had been provided in accordance with the Guidelines for Persons Giving Expert and Opinion Evidence issued by the Tribunal. Dr Armstrong also provided that the opinion in the report was based on a file review and detailed analysis of the referenced documents and when applicable, discussions with treating health professionals, however she had not interviewed or examined the Applicant.[27]

    [26]    Exhibit 2, Supplementary T Documents, ST2, pages 22-33, Health Professional Advisory Unit Report.

    [27]    Exhibit 2, Supplementary T Documents, ST2, page 22, Health Professional Advisory Unit Report.

29. Having analysed the evidence before her, Dr Margaret provided the following discussion and opinion:[28]

    [28]    Exhibit 2, Supplementary T Documents, ST2, pages 24-27, Health Professional Advisory Unit Report.

    Contact

    The Government Lawyer requested Medicare and Pharmaceutical Benefit Scheme data over the past 4 years, which was reviewed and documented as indicated below

    Dr Tran kindly made time to discuss Ms Pham’s conditions on 17/7/2023. Dr Tran confirmed that he has been [the Applicant’s] treating doctor for many years. He reiterated numerous times that [the Applicant] is not malingering, he has done tests to prove this, and that she has chronic pain with insomnia and fatigue. He opined that she also has knee pain and is presenting with a generalised chronic pain condition.

    He opined that [the Applicant] cannot work for more than 15 hours per week due to the chronic pain and fatigue, that she has over the years tried unsuccessfully to work, and that she couldn’t cope even with sedentary work. Her mental health exacerbates the chronic pain. She is able to do light duties at home, but not heavier duties or repeatedly. She is fatigued coming in to see him, there is a flight of stairs that she struggles with. She has no problems with holding a pen, using a keyboard etc.

    There have not been any specialist assessments over the years other than the opinion of the occupational physician in 2011, but over the years, Dr Tran has affirmed the shoulder trigger points. He opined it is too expensive to consult with a rheumatologist or rehab physician and there is a long wait for pain clinic and pain clinic usually just sends the patient back to the GP. 

    Her management with the psychologist and the CBT that Dr Tran has provided was targeted mainly towards her anxiety and mental health condition rather than a targeted CBT for chronic pain. [The Applicant] has preferred to attend Dr Tran rather than a psychologist. Regarding pharmacological management for chronic pain- he has prescribed Endep 10mg (Amitriptyline) June 2022. (PBS report does not indicate that this has been supplied.)

    Attempted to speak to Bao Ngo physiotherapist. He has not seen [the Applicant] recently and did not have anything to add other than what was in the report which he had sent to
    Dr Tran. He provided that report from 15/7/2022 to us

    (detail below in appendix).

    Discussion and Opinion

    …..

    Chronic pain/ Myofascial pain syndrome:

    [The Applicant] first presented with bilateral shoulder pain in 2010.  She has been investigated for this with shoulder ultrasounds- we have been provided with reports from 2010 and 2019- as well as x-rays in 2019. She had MRI cervical spine and shoulders in 2021.

    No definitive cause for her shoulder pain was suggested at any time on imaging. 

    In 2011 a diagnosis of myofascial pain syndrome with typical trigger points was made by an occupational physician. (We have not been provided with this report but direct quotes from the report have been provided).

    Dr Ballenden on 18/3/2011 reported ‘regional muscle pain syndrome with typical MFTPts (myofascial pain trigger points). It is painful or problematic at work but not caused by work.

    There is no mechanism of causation for injury, there is no actual injury. This condition develops in people who are of a certain personality type and have a physiological predisposition for this symptom onset’ (T7).

    Myofascial pain syndrome (MPS) – is a chronic pain disorder associated with trigger points. Characteristic features of trigger points include pressure sensitivity with reproduction of pain on palpation, taut muscle bands on palpation and limited range of movement following approximately 5 seconds of sustained trigger point pressure. Myofascial pain syndrome is diagnosed clinically, there is no standardized criteria for diagnosis, and diagnostic descriptions vary among experts. Reliability of trigger points has been questioned. Commonly recommended initial interventions include muscle strengthening, stretching exercises and application of ice or coolant (Dynamed accessed 5/7/2023). There may be a role for injections, dry needling or acupuncture.

    Persistent shoulder and neck pain with restrictions of movement has been reported on medical certificates from 2011 to date with tendonitis being the diagnosis.

    Shoulder tendinitis is a common cause of shoulder pain and stiffness, usually caused by injury or overuse and the management is usually conservative.

    [The Applicant’s] treatment for her shoulder pain has included physiotherapy, hydrotherapy, home exercise program, steroid injections and acupuncture.

    In March 2022, Dr Tran provided a detailed report after reviewing Ms Pham’s medical record. Dr Tran has been [the Applicant’s] GP since 2000. As per the Medicare report [the Applicant] consulted Dr Tran 51 times between 2019 and 2023.

    Dr Tran provided the diagnosis of her medical condition as ‘chronic/severe myofascial pain syndrome (regional pain syndrome) involving neck and shoulders, diagnosed by occupational physician, treated by GP and physio’. He describes ‘typical trigger points that have been present for a long time especially symmetrical points on her posterior neck, shoulders and elbows’ (T51, T39). He also describes multiple musculoskeletal conditions, neck, shoulders, elbow, wrist (T28). He opined telephonically that she also has knee pain and is presenting with a generalised chronic pain condition.

    The management of chronic pain includes both non-pharmacological and pharmacological. The non-pharmacological includes exercise programmes and physical activity as well as psychological therapy - Acceptance and commitment therapy or targeted cognitive behavioural therapy. Pharmacological therapy includes antidepressant medication in particular amitriptyline and duloxetine.[29]

    [29]    Chronic pain (primary and secondary) in over 16s: assessment of all chronic pain and management of chronic primary pain.

    From 2019 neck pain is described on the medical certificates. Cervical spine MRI performed in 2019 is reported as essentially a normal study. No spondylosis, radiculopathy or spinal stenosis.

    AAT1 accepted the condition of myofascial pain syndrome to be fully diagnosed but considered ‘only limited systematic management appears to have been undertaken’ and be viewed as not fully treated and stabilised (T2).

    Function:

    Chronic shoulder and neck pain with restriction of movement and decreased endurance has been reported on multiple medical certificates. 

    In 2014 it is reported in the employment assessment report that [the Applicant] has difficulty raising her arms above shoulder height, that repetitive movement aggravates the pain and there is increased swelling in the shoulder when there is overuse of the arm (T14). 

    In March 2022, [the Applicant’s] daughter provided a statutory declaration in which she declared she helps her mother with dressing, sometimes showering, cooking, hanging out clothes, vacuuming, cleaning and shopping (T38).

    [The Applicant] described to the AAT1 that she is unable to sleep because of pain across her shoulders and wakes very tired every morning. She also told the tribunal that her daughter does the domestic activities.  She said she herself does some light cooking, such as making an egg or toast.  She said she shops with her daughter.  She said sometimes her sister comes over to help. [The Applicant] said she goes for a walk after getting up.  She said she then rests.  She said she watches television.  She said she lies down when she has pain (T2).  Dr Tran performed various subjective questionnaire/survey based tests and [the Applicant’s] responses indicated pain and decreased function (T39).  Telephonically Dr Tran added that [the Applicant] is able to do light duties at home, but not heavier duties or repeatedly. She is fatigued coming in to see him, there is a flight of stairs that she struggles with. She has no problems with holding a pen, using a keyboard etc.

    Opinion/Summary

    The diagnosis of Myofascial pain was made in 2011 by an occupational physician within what appears to have been a work cover situation. Chronic pain with ongoing exacerbations has been reported from that time to date. However there seems to be further involvement of other joints/areas which may be an indication of other condition/s. Dr Tran confirmed that there has been no specialist referral/involvement since the diagnosis in 2011.

    We have also not been provided with any screening laboratory tests which could identify or exclude other conditions. A rheumatologist, rehabilitation physician or pain specialist opinion would be of value to establish/confirm the diagnosis. 

    I concur with the psychologist that treatment of co-occurring chronic pain and PTSD is challenging (T35). 

    If one was to accept the diagnosis of myofascial pain syndrome – now chronic - as being confirmed, all management options, including a multidisciplinary team approach as per the guidelines for chronic pain management, do not seem to have been explored.

    It is my opinion, based on the information provided, that [the Applicant’s] chronic pain/ myofascial syndrome cannot be deemed to be fully diagnosed, treated or stabilised over the claim period.

    Mental health:

    Post-traumatic stress disorder and Adjustment disorder with mixed anxiety and depressed mood

    In 2011, [the Applicant] experienced multiple psychological stressors and was diagnosed with adjustment disorder with mixed anxiety and depressed mood by her GP and managed by her GP. In 2019 [the Applicant] experienced a home invasion and developed symptoms consistent with a diagnosis of post-traumatic stress disorder (PTSD). Diagnosed by the general psychologist. She has been managed for her mental health condition with counselling and CBT, largely provided by her GP, as well as antidepressant and anxiolytic medication. She attended two sessions with a general psychologist in November 2019 (T35). 

    There is no record of antidepressant medication supplied listed in the PBS record from 2019 - 2023.

    There is insufficient detail of the management received in particular that for management of PTSD to determine adequacy of treatment.

    The tribunal considered that there is limited, if any, evidence of substantial or systematic management. Despite a now possibly limited prognosis, a level of response must still be expected and long-term functional outcome cannot be accurately assessed for the current matter and therefore the psychological conditions cannot be deemed as fully treated and stabilised (T2).  

    As per the social security determination at the time of DSP application, a diagnosis from a clinical psychologist or psychiatrist is required in order to assess a mental health condition.

    I concur with the job capacity assessor and AAT1 and opine that the mental health condition cannot be deemed FDTS at the time of the claim period.

1. On 11 December 2023, the Applicant submitted a letter addressed to Dr Tran, dated
   8 December 2023, from Dr Behnood Shahi, persistent pain SMO at the Metro South Pain Rehabilitation Centre. Dr Shahi outlined that he had examined the Applicant that day and opined that the Applicant has myofascial pain syndrome with co morbidities of PTSD and depressed mood.  Dr Shahi recommended the following treatment:[30]

   1.    Physical: Exercise physiology, gradual increase in exercise duration. Main goal is functional improvement rather than muscle strengthening.

   2.    Psychological: Please refer to a bulk billing psychology service for management of depression and PTSD (few online psychology services introduced)

   3.    Medications: Please start Amitriptyline 10 mg nocte. Can be increased slowly to 50 mg nocte if needed

   4.    Review 3/12

   [30]    Exhibit 5, Letter from Dr Behnood Shahi.

   CONSIDERATION

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

2. The Tribunal accepts the Applicant’s evidence that her conditions result in persistent pain, affect her ability to undertake daily living activities and impact both her physical and mental health. The Tribunal has no doubt that if given the option, the Applicant would choose to undertake work rather than apply for the DSP.  While the Tribunal is empathetic to the Applicant’s situation, it is however limited to assessing the Applicant’s eligibility for the DSP in accordance with the statutory requirements.

   Myofascial pain syndrome

3. The evidence before the Tribunal clearly provides that the Applicant experiences pain in multiple areas of her body and that it affects her functional capacity.

4. The Respondent contended that the Applicant’s myofascial pain syndrome could not be considered fully diagnosed, fully treated and fully stabilised during the Relevant Period.[31] The Respondent relied on the following contentions:[32]

   [31]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 7-10, paragraphs 39-45.

   [32]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraph 41.

   (a)The Secretary contends that the Applicant’s myofascial pain syndrome cannot be considered fully diagnosed, treated and stabilised during the qualification period, based on the following evidence: The Applicant first presented with bilateral shoulder pain in 2010. Ultrasounds revealed bursitis in each shoulder, and the Applicant’s pain persisted (T4-T6). The applicant sought to treat the condition with cortisone injections and physiotherapy (T9/117). 

   (b)The Applicant was then diagnosed by Dr Ballenden (Occupational Physician) (in approximately March 2011) with ‘regional muscle pain syndrome with typical trigger points with typical MFTPs (myofascial pain trigger points).’ No mechanism of the injury was identified, but Dr Ballenden noted that ‘people who are of a certain personality type and have a physiological predisposition for this symptom onset’ (T7). 

   (c)On 1 May 2014, an Employment Services Assessment report noted for the first time, the radiating of the Applicant’s pain through to her neck (T14/140). 

   (d)A medical certificate from Dr Nguyen dated 15 March 2019, further described a change in the Applicant’s diagnosis to be ‘neck pain radiating up arms’ along with numbness in her left index finger (T18/152). That ‘cervical pain’ was noted by Dr Tran as having an onset of February 2019 (T20/159). By June, that pain was also present in the Applicant’s right elbow (T21/160). 

   (e)The Applicant’s treating psychologist Ms Choma in her report dated 24 January 2022, noted the interrelationship between the Applicant’s mental health issues and her chronic pain, and the requirement for a ‘co-ordinated, integrated, multidisciplinary approach that concurrently addresses their overlapping and interactive components of chronic pain and PTSD’ (T35/197). 

   (f)The information from Applicant’s treating general practitioner, Dr Tran, provided to the HPAU doctor confirmed that the Applicant had not engaged with a specialist, such a rheumatologist, pain specialist or rehabilitation physician in respect of her pain since undertaking the medical examination with  Dr Ballenden in March 2011 for the purposes of a ‘fit for duty’ report (T7/114). He further confirmed that the Applicant’s psychological treatment was aimed at the symptoms of her mental health conditions rather than managing her pain and that he had prescribed Endep as pharmacological management to the Applicant’s pain as recently as June 2022. It is notable that the Applicant’s PBS records do not show that prescription being filled (ST1/3). He further opined that in his view, the Applicant was experiencing a more generalised chronic pain, given that the pain had spread to her knees (ST3/24). 

   (g) Having reviewed the evidence, the HPAU doctor opined that given the spread of the Applicant’s pain to other joints, the absence of any laboratory screening tests or engagement with specialists, the diagnosis of myofascial pain syndrome could not be established. Even if that diagnosis were confirmed, the HPAU doctor was of the opinion that the condition could not be considered fully treated and stabilised, in circumstances where the Applicant had not received multi-disciplinary treatment for this condition, in line with the guidelines for chronic pain management, particularly in circumstances where her presentation was complicated by her post traumatic stress disorder (ST3/24, 26-27).

1. The evidence before the Tribunal indicates that the Applicant’s myofascial pain syndrome causes pain in her shoulders, neck, arms and back, and that the pain has spread to other areas of her body. As outlined by Dr Margaret above and confirmed by the Applicant, she had not engaged with a specialist for this condition since 2011 which is not referrable to the Relevant Period. While the Applicant did see Dr Shahi in December 2023, this is well outside the Relevant Period and a further treatment plan had been recommended.

2. The Applicant’s evidence was that she could not afford to see specialists and had not been referred to specialists in the public system until she was referred to see Dr Shahi. She told the Tribunal that she would work if she could, however the pain she experiences means she cannot sit down, stand up or lay down for any period of time without pain. The Tribunal does not doubt this. However, to be eligible for the DSP, a person must have engaged with all relevant treatments for their condition and it must be stabilised before it can be assigned an impairment rating on the Impairment Tables for the resulting functional impairments.

3. In the Applicant’s case, the evidence shows that her pain condition has changed over time, and she has not engaged with specialists to investigate the cause of her pain, which is particularly important in a situation where the radiological imaging does not identify significant issues that may be contributing to this pain. As such, the Tribunal accepts the opinion provided by Dr Margaret in her HPAU report and the contentions made by the Respondent.

4. Consequently, based on the evidence before it, and in the absence of engagement with relevant specialists and relevant treatment in the period prior to and during the Relevant Period, the Tribunal cannot be satisfied that the Applicant’s myofascial pain syndrome was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

   Mental Health Condition

5. The evidence before the Tribunal indicates that the Applicant’s adjustment disorder with mixed anxiety and depressed mood and PTSD (collectively mental health conditions) were diagnosed by her general practitioner, Dr Tran. The evidence further indicates that the Applicant’s mental health conditions have been treated by Dr Tran and that she attended two sessions with a psychologist in late 2019. The Tribunal accepts that the Applicant suffers from mental health conditions.

6. The introduction of Table 5 of the Impairment Tables requires that in order for a mental health condition to be considered fully diagnosed, it must be diagnosed by a clinical psychologist or psychiatrist.

7. The evidence before the Tribunal as summarised above by Dr Margaret and confirmed by the Applicant, was that she has not engaged with a psychiatrist nor a clinical psychologist.

8. Consequently, based on the evidence before it, and in the absence of a diagnosis of the Applicant’s depression and anxiety by a psychiatrist or clinical psychologist during the Relevant Period, the Tribunal cannot be satisfied that the Applicant’s mental health conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

   Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?

9. As the Tribunal has found that the Applicant did not have a total of 20 impairment points either on one Impairment Table or across multiple Impairment Tables during the Relevant Period, there is no need to consider whether she met the requirements of section 94(1)(c) of the Act.

   CONCLUSION

10. Based on the evidence before it, the Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

11. Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s myofascial pain syndrome and mental health conditions were not fully diagnosed, fully treated and fully stabilised and therefore, could not be considered permanent for the purposes of assigning a rating under the Impairment Tables.

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

    DECISION

13. For the reasons set out above, the decision under review is affirmed.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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

Associate

Dated: 1 February 2024

Date of hearing:	23 January 2024
Applicant:	By phone
Solicitors for the Respondent:	Ms Simone Cameron Services Australia