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

Psomiadis; Secretary, Department of Social Services and (Social services second review) [2017] AATA 1428 (6 September 2017)
Division:GENERAL DIVISION
File Number: 2016/7007
Re:Secretary, Department of Social Services
APPLICANT

AndNikolaos Psomiadis
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:6 September 2017
Place:Brisbane

The decision under review is set aside. Mr Psomiadis’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(b).
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Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions permanent - decision under review set aside
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)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
REASONS FOR DECISION
Member D K Grigg
6 September 2017
INTRODUCTION

On 6 April 2016 Mr Psomiadis lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as those referred to in letters from his treating medical practitioners.[1]
[1] Exhibit 1, T Documents, T14, pages 145 – 175, Mr Psomiadis’s Claim for DSP dated 6 April 2016.
In the letter accompanying the DSP claim from, Dr John Wilson, General Practitioner, reported that Mr Psomiadis had alcohol dependency, anxiety and depression, high blood pressure, and hyperlipidaemia. Dr Wilson also reports that Mr Psomiadis:
(a)had been referred to a psychiatrist, psychologist and the Alcohol, Tobacco and Other Drugs (“ATODS”) Clinic;
(b)was currently undergoing dental surgery; and
(c)was scheduled for pilonidal sinus surgery.[2]
[2] Exhibit 1, T documents, T 15, page 177, letter from Dr Wilson dated 23 March 2016.
Claim History
As a result of a Job Capacity Assessment (“JCA”) undertaken in May 2016 Mr Psomiadis’ DSP claim was rejected by Centrelink.[3] The JCA concluded that Mr Psomiadis’ impairments were not fully treated and stabilised.[4]
[3] Exhibit 1, T Documents, T20, pages 216-217, Centrelink Decision dated 22 June 2016.
[4] Exhibit 1, T Documents, T 16, pages 186 – 191, Job Capacity Assessment report dated 10 May 2016.
Mr Psomiadis then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Psomiadis’ impairments were not fully treated and stabilised.[5]
[5] Exhibit 1, T Documents, T 21, pages 218 – 222, ARO Decision dated 9 August 2016.
On 24 August 2016 Mr Psomiadis lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[6] On 23 November 2016, the SSCSD accepted Mr Psomiadis’ claim and set aside the ARO’s decision.[7]
[6] Exhibit 1, T Documents, T 22, pages 223 – 224, AAT Notice of Appeal dated 24 August 2016.
[7] Exhibit 1, T Documents, T2, pages 2 – 9, SSCSD’s Decision and Reasons for Decision dated 23 November 2016.
The Secretary, Department of Social Services has sought a review of the SSCSD’s decision by this Tribunal.[8]
[8] Exhibit 1, T Documents, T1, page 1, Application for Review of Decision dated 22 December 2016.
ISSUES FOR DETERMINATION
The legislation relevant to the matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Psomiadis must have a physical, intellectual or psychiatric impairment/s.
(b)Mr Psomiadis’ impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[9]
(c)Mr Psomiadis must have a continuing inability to work.
[my emphasis]
[9] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Psomiadis meets the Section 94 Requirements is the date of the claim (in this instance as at 6 April 2016), unless Mr Psomiadis becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[10] Therefore, in order to qualify for DSP Mr Psomiadis must have met the Section 94 Requirements between 6 April 2016 and 5 July 2016 inclusive (“Qualification Period”).
[10] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Psomiadis’ impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[11]
DID MR PSOMIADIS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[11] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1,]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[12]
Mr Psomiadis’ Medical Conditions
[12] Determination, s 3.
Alcohol Dependency
Mr Psomiadis has been dealing with alcohol dependence and drinking to excess for some years and admitted himself into a clinic for detoxification as far back as February 2010.[13]
[13] Exhibit 1, T documents, T6, page 106, JCA report dated 5 July 2010.
In March 2012 Dr Wilson reported that Mr Psomiadis was suffering from alcohol dependence and abnormal liver function.[14]
[14] Exhibit 1, T documents, T9, page 122, report by Dr Wilson dated 23 March 2012.
Dr Wilson reported in October 2014 that Mr Psomiadis was having psychological treatment for his alcohol dependency.[15]
[15] Exhibit 1, T documents, T 13, page 142, medical certificate by Dr Wilson dated 13 October 2014.
Between March 2016 and October 2016 Dr Wilson reported that Mr Psomiadis was still suffering from alcohol dependency.[16]
[16] Exhibit 1, T documents, T 13, page 144, medical certificate by Dr Wilson dated 30 March 2016; T 17, page 193,
medical certificate by Dr Wilson dated 21 June 2016; T 18, page 207, medical certificate by Dr Wilson dated 17 August 2016; T 24, page 228, medical certificate by Dr Wilson dated 19 October 2016.
Hernia
In March 2012 Dr Wilson reported that Mr Psomiadis had a right groin hernia that was due for surgery once his liver function had improved.[17]
[17] Exhibit 1, T documents, T9, page 124, report by Dr Wilson dated 23 March 2012.
Mental Health/Cognitive Impairment
In March 2012 Dr Wilson reported that Mr Psomiadis had depression, anxiety, NIDDM which was well managed by antidepressants and diet control and causing minimal or limited impact on his ability to function.[18]
[18] Exhibit 1, T documents, T9, page 126, report by Dr Wilson dated 23 March 2012.
In August 2014 Mr Psomiadis was referred to Dr Nihal Kucuk, Psychologist and Clinical Hypnotherapist, for treatment of his depression and anxiety disorders.[19] Dr Kucuk reports that Mr Psomiadis had major depressive disorder, anxiety disorder and alcohol dependence.
[19] Exhibit 1, T documents, T 15, pages 178 – 179, letter by Dr Kucuk dated 23 March 2016.
Dr Wilson reported in March 2016 that Mr Psomiadis was still suffering from anxiety and depression.[20]
[20] Exhibit 1, T documents, T 13, page 144, medical certificate by Dr Wilson dated 13 October 2014.
In April 2016 Professor Philip Morris, Consultant Psychiatrist, indicated that Mr Psomiadis may have cognitive impairment problems and adjustment disorder and referred him to Ms Kirsten McArthur, Psychologist, to assess his cognition over 2 sessions and to provide psychological therapy for the adjustment disorder and cognitive remediation through the Memory Adjustment Program.[21]
[21] Exhibit 1, T documents, T 15, page 185, letter from Prof Morris dated for April 2016.
Professor Morris reported that Mr Psomiadis had a history of chronic fluctuating depression (dysthymic disorder) since the global financial crisis of 2008. Since then Mr Psomiadis has been depressed, anxious, suffers from agoraphobia and has occasional panic attacks.[22]
[22] Exhibit 1, T documents, T 17, pages 204 – 205, Report of Professor Morris dated for April 2016.
Ms McArthur reported in May 2016 that:[23]
(a)Mr Psomiadis had extremely severe depression and extremely severe stress; and
(b)psychological tests performed were indicative of vascular cognitive impairment.
(c)Mr Psomiadis would benefit from:
(i)ongoing counselling for adjustment disorder with depressed mood; and
(ii)cognitive remediation to assist with his memory difficulties.
[23] Exhibit 1, T documents, T 17, pages 196 – 203, Report of Ms McArthur dated 1 May 2016.
Dr Wilson reported in June 2016 that Mr Psomiadis was still suffering from anxiety and depression.[24]
[24] Exhibit 1, T documents, T 17, page 193, medical certificate by Dr Wilson dated 21 June 2016.
Dr Wilson reported in August 2016 that Mr Psomiadis was still suffering from depression.[25]
[25] Exhibit 1, T documents, T 18, page 207, medical certificate by Dr Wilson dated 17 August 2016.
In March 2016 Dr Kucuk reported:[26]
(a)he had been counselling Mr Psomiadis since August 2014;
(b)Mr Psomiadis has major depressive disorder, single episode (severe) without psychotic features, anxiety disorder and alcohol dependence;
(c)the focus of the therapeutic intervention had been on cognitive behavioral therapy to address his mood and alcohol issues but that he had made little improvement and had ongoing difficulties with his sleep, mood, appetite, motivation and ability to work;
(d)Mr Psomiadis found it difficult most of the time to leave the house and extremely difficult interacting with others and experiences extreme anger when dealing with others;
(e)Mr Psomiadis was currently taking Valium; and
(f)Mr Psomiadis’ depression and anxiety are of a chronic nature.
[26] Exhibit 1, T documents, T 15, pages 178 – 179, report of Doctor Kucuk dated 23 March 2016.
Pilonidal Sinus Surgery
Mr Psomiadis had pilonidal sinus surgery on 18 April 2016.[27]
[27] Exhibit 1, T documents, T 15, page 180, appointment letter Gold Coast University Hospital.
Dr Wilson reported in June 2016 that Mr Psomiadis was recovering from his surgery.[28]
[28] Exhibit 1, T documents, T 17, page 193, medical certificate by Dr Wilson dated 21 June 2016.
Dr Wilson reported in August 2016 and October 2016 that Mr Psomiadis was awaiting further surgery because his wounds from the initial surgery were not healing.[29]
[29] Exhibit 1, T documents, T 18, page 207, medical certificate by Dr Wilson dated 17 August 2016; T 24, page 228,
medical certificate by Dr Wilson dated 19 October 2016.
Dr Lu, Colorectal Surgeon, reported in October 2016 that Mr Psomiadis’ wounds from the initial surgery had now healed and that although he still has minor discomfort that there should not be any further problems.[30]
[30] Exhibit 1, T documents, T 25, page 233, report of Dr Lu dated 31 October 2016.
Unfortunately for Mr Psomiadis, his wounds did not heal and in January 2017 he was awaiting further surgery to correct the problem.[31]
[31] Exhibit 3, Letter from Dr Wilson to Dr Lu dated 30 January 2017.
Sleep apnoea
In April 2016 Mr Psomiadis was referred to Snore Australia with respect to his sleep apnoea issues resulting from his alcohol disorder.[32]
[32] Exhibit 1, T documents, T 15, page 182 letter from Snore Australia dated 4 April 2016.
High Blood Pressure and Hyperlipidaemia
In March 2016 Dr Wilson, reported that Mr Psomiadis had high blood pressure, and hyperlipidaemia.[33]
[33] Exhibit 1, T documents, T 15, page 177, letter from Dr Wilson dated 23 March 2016.
There is a reference in Professor Morris’ report of April 2016 that Mr Psomiadis was taking medicines which are used to treat cholesterol and high blood pressure.[34]
[34] Exhibit 1, T documents, T 25, page 204, report of Professor Morris dated 4 April 2016.
Liver
There is a reference in Professor Morris’ report of April 2016 that Mr Psomiadis may have liver toxicity from his alcohol use which was being investigated by his general practitioner.[35]
[35] Exhibit 1, T documents, T 25, page 204, report of Professor Morris dated 4 April 2016.
A CT scan of Mr Psomiadis performed in July 2016 indicated “features suggestive of diffuse hepatic steatosis”.[36]
[36] Exhibit 1, T documents, T 25, page 237, CT report dated 26 July 2016.
Hand/Wrist
An ultrasound and x-ray of Mr Psomiadis’ left wrist were performed, due to thumb pain, in January 2017, which indicated Mr Psomiadis had a large ganglion cyst. Mr Psomiadis is currently awaiting surgery to remove the cyst.[37]
[37] Exhibit 4, x-ray report dated 13 January 2017, ultrasound report dated 5 January 2017 and Letter from Gold Coast
University Hospital to Mr Psomiadis dated 20 January 2017.
Conclusion on Impairments
The Secretary accepts that Mr Psomiadis had Impairments which satisfied section 94(1)(a) during the Qualification Period.[38] I am satisfied on the medical evidence that that is correct.
[38] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 11 July 2017, at para 4.28.
Considering the above evidence, I conclude that during the Qualification Period Mr Psomiadis suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:
(a)alcohol dependency; and
(b)depression and anxiety.
In relation to the cognitive impairment, the medical evidence suggests this impairment exists. However there is also treatment recommended by Ms McArthur to assist with his memory difficulties.[39] There is no evidence to suggest that Mr Psomiadis has had this treatment and therefore I cannot find that this condition is fully treated. Further, the medical evidence does not suggest that the symptomology of this condition cannot be treated and improved. The medical evidence also suggests that this condition is directly linked to Mr Psomiadis’ alcoholism which I have found (see below) not to have been fully treated and stabilised. As a result this condition cannot be considered for the purposes of this DSP application.
[39] Exhibit 1, T documents, T 17, pages 196 – 203, Report of Ms McArthur dated 1 May 2016.
In relation to the right groin hernia there is no evidence provided since 2012 regarding this condition or whether or not surgery had taken place and whether or not it is now stabilised. As a result, this condition cannot be considered the purposes of this DSP application.
In relation to the sleep apnoea condition, Professor Morris reported in July 2016 that Mr Psomiadis had an overnight sleep study which showed mild obstructive sleep apnoea and that he was to have a follow-up to see whether he could benefit from techniques to try to reduce sleep apnoea such as lying on his side.[40] There is no further evidence regarding the treatment Mr Psomiadis had or whether or not this condition is now stabilised. As a result this condition cannot be considered permanent for the purposes of this DSP application.
[40] Exhibit 1, T documents, T 25, page 232, report of Professor Morris dated 12 July 2016.
In relation to the pilonidal sinus condition, at the Qualification Period Mr Psomiadis was still recovering from his surgery[41] and Dr Lu reported that this condition was not fully treated and stabilised until October 2016, which is after the Qualification Period.[42]
[41] Exhibit 1, T documents, T 17, page 193, medical certificate by Dr Wilson dated 21 June 2016.
[42] Exhibit 1, T documents, T 25, page 233, report of Dr Lu dated 31 October 2016.
In relation to the high blood pressure and hyperlipidaemia there is no medical evidence confirming the treatment undertaken, whether these conditions have stabilised and further, whether these conditions are having a functional impact or what that impact is. As a result, this condition cannot be considered the purposes of this DSP application.
In relation to the liver condition, there is no evidence that Mr Psomiadis has had any treatment. Further, given that it is likely to be related to his alcoholism, this condition cannot be considered fully stabilised, until his alcoholism has stablised (see paragraphs 53-58 below). As a result, this condition cannot be considered the purposes of this DSP application.
In relation to the wrist condition, this did not arise until 6 months after the Qualification Period and therefore cannot be considered in relation to this DSP claim.
DO MR PSOMIADIS’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[43] They are function based[44] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[45]
[43] Determination, ss 4(2) and 5(2)(a).
[44] Determination, s 5(2)(b) and (d).
[45] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[46]
(a)the condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[46] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[47]
[47] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Psomiadis’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[48]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[48] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[49] the following is to be considered:[50]
(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.
[49] For the purposes of ss 6(4)(a) and (b) of the Determination.
[50] Determination, see s 6(5).

A condition is fully stabilised[51] if:[52]
(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;[53] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[51] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[52] Determination, see s 6(6).
[53] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
ALCOHOL DEPENDENCY IMPAIRMENT
Is Mr Psomiadis’s Alcohol Dependency Impairment permanent and likely to persist?
A JCA conducted in May 2016, face-to-face with Mr Psomiadis, concluded that Mr Psomiadis’ alcohol dependency Impairment was fully diagnosed but not optimally treated or stabilised because there was no indication that Mr Psomiadis had attempted ATODS or attempted to access an extensive rehabilitation for the condition.[54] The JCA reported that Mr Psomiadis said he was drinking a bottle of wine and 1-2 bottles of scotch per day.
[54] Exhibit 1, T Documents, T16, pages 186 – 187, Job Capacity Assessment report dated 10 May 2016.
In April 2016 Professor Morris reported that:[55]
(a)Mr Psomiadis should be on thiamine vitamin supplements;
(b)if he was to go through alcohol detox he should consider using acamprosate and naltrexone;
(c)he was not sure Mr Psomiadis was committed to going off alcohol at that stage; and
(d)because he did not have private health insurance it is likely that if he wanted to go alcohol detoxification would have to be done at home, supervised by his general practitioner.
[55] Exhibit 1, T documents, T 17, pages 204 – 205, report by Professor Morris dated 4 April 2016.
In July 2016 Professor Morris reported that Mr Psomiadis was still drinking quite a lot of alcohol and that he seemed unwilling to do anything about the problem. Professor Morris reiterated that if he decides to get help for his alcohol dependence problem and abstinence model would probably be appropriate using acamprosate and naltrexone.[56]
[56] Exhibit 1, T documents, T 25, page 232, report of Professor Morris dated 12 July 2016.
The evidence supports a finding that Mr Psomiadis’ Alcohol Dependency Impairment was fully diagnosed. However, it is clear that during the Qualification Period Mr Psomiadis had not had, or attempted to have, any reasonable treatment and that the condition had not stabilised.
The SSCSD found that Mr Psomiadis’ other conditions (depression and pilonidal sinus) would affect his ability to engage in any reasonable treatment and that significant functional improvement was not expected to result in any event. However, there is no medical evidence before the Tribunal to suggest that reducing his alcohol intake, undertaking a detoxification program or trialling anti-abuse medication is not reasonable treatment in the circumstances or alternatively is not expected to result, even if Mr Psomiadis did undertake that treatment, in significant functional improvement to a level enabling him to undertake work in the next 2 years.[57] Nor is there any medical or other compelling evidence to suggest that Mr Psomiadis’ depression and pilonidal sinus was a reason from him not to undertake reasonable treatment. In fact, detoxification and anti-abuse medication is encouraged by Professor Morris.
[57] For reasonable treatment see s 6(7) of the Determination.
Therefore, I find that Mr Psomiadis’ Alcohol Dependency Impairment was not permanent for the purposes of the Act and an Impairment Rating cannot be assigned.
MENTAL HEALTH IMPAIRMENT
Is Mr Psomiadis’s Mental Health Impairment permanent and likely to persist?
The JCA conducted in May 2016, concluded that Mr Psomiadis’ depression and anxiety Impairment was fully diagnosed but not optimally treated or stabilised because the comorbid condition of alcohol dependence is likely affecting treatment and the impact of this condition.[58]
[58] Exhibit 1, T Documents, T16, page 187, Job Capacity Assessment report dated 10 May 2016.
Professor Morris reported in April 2016 that the issue was whether Mr Psomiadis wished to get any formal treatment for his mental health conditions. Professor Morris suggested that the depression illness may respond to the use of an antidepressant medication and that he should see a psychologist for psychological support on a regular basis.[59]
[59] Exhibit 1, T documents, T 17, pages 204 – 205, report of Professor Morris dated 4 April 2016.
In July 2016 Professor Morris reported that Mr Psomiadis was “over sedated” on the anti-depressants he had prescribed and that he had ceased taking them. Professor Morris reported that Mr Psomiadis:[60]
(a)was still depressed;
(b)was still taking diazepam for his anxiety and depression symptoms;
(c)was still drinking quite a lot of alcohol; and
(d)seemed unwilling to do anything about the problem.
[60] Exhibit 1, T documents, T 25, page 232, report of Professor Morris dated 12 July 2016.
Professor Morris recommended and prescribed a different anti-depressant.
The evidence supports a finding that Mr Psomiadis’ Depression Impairment was fully diagnosed.
In terms of treatment Dr Kucuk reported that despite psychological counselling for over 18 months there had been little improvement in Mr Psomiadis’ mental health conditions. However, Dr Kucuk in his report refers to the fact that the therapy he provided was intended to address his mood and alcohol issues which indicates that the two conditions are at least to some extent comorbid. In the circumstances, until such time as the alcohol dependency impairment has been fully treated and fully stabilised, it cannot be said that Mr Psomiadis’ Depression Impairment has stabilised. There is also indication from Professor Morris that Mr Psomiadis may not wish to have formal treatment for his mental health conditions.
There is no medical evidence to suggest that:
(a)reducing his alcohol intake;
(b)undertaking a detoxification program;
(c)trialling anti-abuse medication;
(d)taking alternative anti-depressant medication (in accordance with Professor Morris’ instructions); and
(e)continuing psychological counselling;
is not reasonable treatment.
Alternatively, there is no evidence to suggest that significant mental health functional improvement, to a level enabling him to undertake work in the next 2 years, is not expected to result, even if Mr Psomiadis did undertake that treatment.[61]
[61] For reasonable treatment see s 6(7) of the Determination.
There is also no medical or other compelling reason for Mr Psomiadis not to undertake reasonable treatment. In fact, detoxification, anti-abuse medication, anti-depressants and psychological counselling is recommended and encouraged by Professor Morris.
Therefore, I find that Mr Psomiadis’ Depression Impairment was not permanent for the purposes of the Act and an Impairment Rating cannot be assigned.
CONCLUSION
As I have concluded that Mr Psomiadis’ Impairments were not permanent during the Qualification Period it is unnecessary for me to consider whether Mr Psomiadis had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
The decision under review is set aside. Mr Psomiadis’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(b).

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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Associate
Dated: 6 September 2017

Date of hearing: 21 August 2017

Solicitors for the Applicant: Sparke Helmore

Respondent: Did not attend hearing

[2017] AATA 1428

6 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	21 August 2017
Solicitors for the Applicant:	Sparke Helmore
Respondent:	Did not attend hearing