QKQX and Secretary, Department of Social Services

[2014] AATA 899

[2014] AATA 899

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3309
Re	QKQX
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member R W Dunne
Date	5 December 2014
Place	Adelaide

The Tribunal affirms the decision under review.

..........................[Sgd].............................................

Senior Member R W Dunne

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was a "continuing inability to work" – reports of medical practitioners considered – Job Capacity Assessment conducted – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), cl 4 of Schedule 2

CASES

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

SECONDARY MATERIALS

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

REASONS FOR DECISION

Senior Member R W Dunne

5 December 2014

INTRODUCTION

1. For confidentiality reasons, the applicant in this case is referred to as “QKQX”.  The applicant lodged a claim for disability support pension (“DSP”) with the respondent which was accepted by the parties as having been made on 27 January 2012.  A delegate of Centrelink, which is the service delivery agency for the Department of Social Services, rejected the claim on 20 February 2012 (“original decision”).  An authorised review officer (“ARO”) affirmed the original decision on 26 March 2012.  The applicant sought review of the ARO’s decision by the Social Security Appeals Tribunal (“SSAT”).  The SSAT affirmed the ARO’s decision on 22 June 2012.  The applicant lodged an application for review of the SSAT’s decision by this Tribunal on 2 August 2012.

2. At the hearing, the applicant was self-represented and the respondent was represented Mr A Parker (from the Program Litigation and Review Branch, Department of Human Services).  I admitted into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:

   ·a copy of a letter from Dr Rene Pols to Dr J McLennan dated 19 August 2008;[2]

   ·a copy of a letter from Dr Rene Pols to Dr J McLennan dated 27 June 2012;[3]

   ·a copy of a medical report by Dr Andrew Pols dated 29 August 2013;[4] and

   ·a copy of a letter from Dr Andrew Pols dated 9 July 2013.[5]

   [1] Exhibit R1.

   [2] Exhibit A1.

   [3] Exhibit A2.

   [4] Exhibit A3.

   [5] Exhibit A4.

   ISSUE FOR THE TRIBUNAL

3. The issue for the Tribunal, in relevantly considering s 94 of the Social Security Act 1991 (“Act”), is whether the applicant was qualified to receive DSP on the date of the relevant claim, being 27 January 2012, or within 13 weeks (or 91 days) thereafter, that is by 27 April 2012 (“Claim Period”).

4. In respect of the Claim Period, it seems clear the respondent accepted that the applicant had a physical, intellectual or psychiatric impairment.  However, the respondent did not accept:

   (a)that the impairment (or impairments) attracted an impairment rating of at least 20 points under s 94(1)(b) of the Act: and

   (b)that the applicant had a “continuing inability to work” because of the impairment (or the impairments) within the meaning of s 94(1)(c)(i) and s 94(2), (3), (3B) and (3C) of the Act.

   LEGISLATION

5. The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:

   “Qualification for Disability Support Pension

   (1)  A person is qualified for disability support pension if: 

   (a) the person has a physical, intellectual or psychiatric impairment; and

   (b) the person's impairment is of 20 points or more under the Impairment Tables; and

   (c) one of the following applies: 

   (i)     the person has a continuing inability to work;

   (ii)   the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d) the person has turned 16; and

   (e) the person either: 

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person: 

   (A) is not an Australian resident; and
   (B) is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea) either: 

   (i) the person is an Australian resident; or

   (ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.

   Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
   Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.

   Continuing inability to work

   (2)   A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: 

   (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) -- the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)in all cases -- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)   in all cases --either: 

   (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii)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.

   Note:  For work see subsection (5).

   (3)   In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to: 

   (a) the availability to the person of a training activity; or
   (b) the availability to the person of work in the person's locally accessible labour market.

   (3A) If:

   (a)a person is receiving disability support pension; and

   (b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;

   then paragraph (2)(aa) of this section does not apply in relation to that assessment.

   Severe impairment

   (3B)A person’s impairment is 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.

   Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table.  The person has a severe impairment.

   Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table.  The person has a severe impairment.

   Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables.  The person does not have a severe impairment.  

   Active participation in a program of support

   (3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

   (3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).

   (3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).

   Doing work independently of a program of support

   (4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person: 

   (a) is unlikely to need a program of support; or
   (b) is likely to need a program of support provided occasionally; or
   (c) is likely to need such a program of support that is not ongoing.

   Other definitions

   (5)       In this section: 

   program of support means a program that:

   (a)is designed to assist persons to prepare for, find and maintain work; and

   (b)either;

   (i)is funded(wholly or partly) by the Commonwealth; or

   (ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: 

   (a) education;
   (b) pre-vocational training;

   (c) vocational training;

   (d) vocational rehabilitation;

   (e) work-related training (including on-the-job training).

   work means work: 

   (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
   (b) that exists in Australia, even if not within the person's locally accessible labour market.

   …”

6. Also relevant in these proceedings is cl 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (“Administration Act”), which reads:

   “4  Start day—early claim

   (1)  If:

   (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim is made, qualified for the payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment.
   …”

   SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILITY SUPPORT PENSION) DETERMINATION 2011 (“Determination”)

7. The Impairment Tables were previously set out in Schedule 1B to the Act. They are now contained in the Determination, which relevantly reads:

   “6.      Applying the Tables

   Assessing functional capacity

   (1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.

   Applying the Tables

   (2)The 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.

   Note:For additional information that must be taken into account in applying the Tables see section 7.

   Impairment ratings

   (3)An impairment rating can only be assigned to an impairment if:

   (a)     the person’s condition causing that impairment is permanent; and

   Note:    For permanent see subsection 6(4).

   (b)     the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example:     A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

   Permanency of conditions 

   (4)For the purposes of paragraph 6(3)(a) a condition is permanent if:

   (a)     the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)     the condition has been fully treated; and

   Note:    For fully diagnosed and fully treated see subsection 6(5).

   (c)   the condition has been fully stabilised; and

   Note: For fully stabilised see subsection 6(6).

   (d)     the condition is more likely than not, in light of available evidence, to persist for more than 2 years. 

   Fully diagnosed and fully treated 

   (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (a)     whether there is corroborating evidence of the condition; and

   (b)     what treatment or rehabilitation has occurred in relation to the condition; and

   (c)   whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised 

   (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

   (a)     either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

   (b)     the person has not undertaken reasonable treatment for the condition and:

   (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

   (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

   Note:For reasonable treatment see subsection 6(7).

   Reasonable treatment

   (7)For the purposes of subsection 6(6), reasonable treatment is treatment that:

   (a)     is available at a location reasonably accessible to the person; and

   (b)     is at a reasonable cost; and

   (c)   can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)     is regularly undertaken or performed; and

   (e)   has a high success rate; and

   (f)   carries a low risk to the person.

   …”

   BACKGROUND

8. When the applicant lodged the claim for DSP on 27 January 2012 the disabilities listed were fibromyalgia, asthma, anxiety disorder and sleep disorder.[6]  After referral by Dr Philip Gribble, the applicant was reviewed by Professor Malcolm Smith, consultant rheumatologist, on 21 January 2012.  Professor Smith prepared a medical report on 24 January 2012[7] and, in the report, the only condition listed was fibromyalgia, with date of onset as September 2011 and date of diagnosis as 21 January 2012.  It was stated in the report that the applicant had no past treatment for fibromyalgia, current treatment included Endep and an exercise program, and future treatment depended on the response to that current treatment.  The report also stated that the applicant had no other generally well managed medical condition that caused minimal or limited impact on ability to function.[8]

   [6] Exhibit R1, p 86.

   [7] Exhibit R1, p 104-111.

   [8] Exhibit R1, p 109

9. When the ARO reviewed the original decision, he said:[9]

   “The disability support pension is paid to a person who is unlikely to work despite reasonable treatment and/or rehabilitation for their impairments.  The payment is not made for the period of treatment; it is granted only after it can be determined that the person’s condition will not improve further, and the residual effect is that they cannot work.

   Your condition of fibromyalgia is newly diagnosed and treatment commenced only within the last two months.  The condition is treated in a variety of ways, each treatment being tested as another is shown to have no effect.  So far you have tested medications and physiotherapy for a very limited time.  Your doctor has not indicated that the condition will not improve.  As such, the effects on your functioning may improve and so the condition cannot be considered stabilised.  I cannot assign it an impairment rating.

   You were diagnosed with depression in the past, and it was reasonably well managed with medication.  It did not prevent you working.  The treatment has changed recently because of the effects of your fibromyalgia, and new medication and dosages are being tested to try and re-establish the previous control.  I cannot say this condition has been stabilised, and so cannot assign it an impairment rating.

   You mentioned also a sciatic nerve injury, incurred since your claim, which is still being investigated.  You are to undergo a CT scan, with the possibility of a MRI scan and surgery in the future.  In the absence of any medical evidence, or a complete investigation, it cannot be said that the condition will have effect for more than two years.  As such, I cannot assign it an impairment rating.

   As no impairment rating has been assigned for any of your conditions, I cannot find you qualified for the Disability Support Pension.”

   [9] Exhibit R1, pp 65-66.

10. A Job Capacity Assessment (“JCA”) was conducted on 13 February 2012 to assess the applicant’s qualification for DSP.  The assessor was an accredited exercise physiologist and the assessment was conducted face to face.  As the only medical condition stated by Professor Smith in his medical report was fibromyalgia, the assessor said:[10]

    “The client has been engaging with a rheumatologist since approximately January 2012, who has prescribed him Endep, Ciprimil, and Norspan patches.  The client advised that his current medications are not addressing any of his symptoms.  The client is next to meet with his rheumatologist in March 2012, where further discussions regarding medication (sic) treatment, as well as a formal detox in hospital, to then begin new medication, may also be implemented.

    This condition is considered to be permanent, due to the nature of the condition.  However, as the client has only recently been diagnosed with this condition, and treatment has only commenced in the past month, the condition is not fully treated or stabilised.  Fibromyalgia requires significant ongoing attempts at treatment to determine what is best for each patient, and sufficient time and effort has yet to occur.”

    [10] Exhibit R1, p. 113.

11. Although not stated in the JCA Report, the assessor assigned no impairment points under the Impairment Tables in respect of the applicant’s fibromyalgia. 

12. When the SSAT reviewed and affirmed the ARO’s decision, that tribunal reviewed not only the applicant’s condition of fibromyalgia, but also chronic fatigue syndrome, low back pain and depression.  The SSAT concluded that the applicant’s low back pain was not fully diagnosed, treated and stabilised and hence it did not attract impairment points under the Impairment Tables.  In relation to the fibromyalgia, the SSAT agreed with the ARO that the fibromyalgia was only recently diagnosed and not fully treated and stabilised.  The SSAT found that the fibromyalgia was not fully diagnosed until 21 January 2012.  With respect to the fully treated and fully stabilised criteria, the SSAT said:[11]

    “…  This means that after the diagnosis of fibromyalgia the applicant has to undertake reasonable treatment for a period of time sufficient to determine the response to treatment and establish the long term degree of impairment.

    In the applicant’s case there is the added complication of the development of the episode of acute severe low back pain in February 2012 which seems to have added significantly to the applicant’s level of impairment.

    In the Tribunal’s opinion it is not possible to find that a condition such as the applicant’s fibromyalgia is ‘fully treated’ at the time of diagnosis.  The Tribunal considers this remained the case at least up to 1 May 2012, which is the last day that the applicant can qualify for a Disability Support Pension with respect to his claim lodged on 31 January 2012.

    Hence the Tribunal finds that the applicant’s fibromyalgia was not fully diagnosed, treated, and stabilised with respect to the claims lodged on 19 December 2011 and 31 January 2011 [sic].

    Hence it does not attract impairment points.”

    [11] Exhibit R1, p. 58.

1. In relation to depression, the SSAT noted that the applicant described that condition as not currently severe and was not mentioned in the medical reports from January 2012.  As there was only limited information regarding the state of the applicant’s depression in the Claim Period, the SSAT considered the most likely state of the condition was that it was moderately well controlled with medication up until the applicant’s illness.  The SSAT was unable to determine an impairment rating for the depression due to lack of information and considered it was not sufficiently severe that it would score 20 impairment points.  Hence, the applicant’s total impairment rating was 0 points.

   EVIDENCE

   Evidence of QKQX

2. In giving his evidence, the applicant often referred to his written “Outline of Case with Contentions”.  He said that there was not a lot of information in the T documents about Dr McLennan.  He was the “orchestrator” of the applicant’s treatment and would refer the applicant to the particular specialist required.  When asked if Dr McLennan was his general practitioner, the applicant said that Dr Andrew Pols was taking over.  As the applicant said, a general practitioner “transition” was taking place between Dr McLennan and Dr Andrew Pols.  The applicant spoke about his understanding of the term fibromyalgia, saying that it was like a “container” to house a number of different symptoms, impairments and conditions. 

3. The applicant referred to the letter from Ms R Barraga dated 25 August 2014.  She was an ARO who reviewed a decision of the respondent made on 11 April 2014 to reject the applicant’s later claim for DSP.  In the letter, Ms Barraga said (amongst other things):

   “….Our records show that a claim for Disability Support Pension was lodged on 4 March 2014.

   As your claim for Disability Support Pension was lodged within 14 days of your contact on 28 February 2014, your claim can then be deemed to have been made on 28 February 2014 in accordance with section 13 of the Admin Act.

   Therefore, in accordance with section 13, Clause3, Part 2 and Schedule 2 of the same Act, I have decided that your Disability Support Pension can be granted from 28 February 2014 and that arrears are payable from this date.”

4. In relation to the applicant’s condition of anxiety and depression, the applicant said that Ms Barraga had stated:

   “… I have determined that your condition of Anxiety/Depression is fully diagnosed, treated and stabilised and warrants an impairment rating of 20 points under Table 5 of the Impairment Tables.  …”

5. In the “Outline of Case with Contentions”, the applicant also referred to the condition of low back pain/sciatica.  He referred to two motor vehicle accidents where he was rear-ended and caused initial damage to his back.  He referred to a letter dated 20 April 2012 in which Dr McLennan said:[12]     

   “The applicant is a 31yo patient of mine.  He suffers from low back pain due to L3/4 and L4/5 lumbar intervertebral disc lesions as shown on the enclosed Xray and CT scan.  He suffers from severe depression and anxiety and is on an antidepressant and receiving cognitive behavioural therapy in conjunction with psychiatric review.  He has also been recently diagnosed with fibromyalgia that leaves him chronically fatigued/tired and lacking energy. …”

   [12] Exhibit R1, T4 p 118.

6. The applicant also referred to the letter dated 7 June 2012[13] in which Professor Smith said:

   “… He was admitted to the Repatriation General Hospital on the 25^th of May 2012 for assessment of right L5 sciatica and chronic back pain.  He was discharged from this hospital on the 1^st of June 2012.  The purpose of this admission was to arrange an MRI scan of his lumbar spine, exclude the need for any surgical intervention, arrange for a pain unit assessment on him and commence him on treatment for his chronic pain.

   The applicant’s  MRI of the lumbar spine was done on the day of admission.  The findings on this MRI scan showed a generalised disc bulge at L3/L4, L4/L5 and L5/S1 levels with no evidence of any nerve root compression or canal stenosis.  There is therefore no surgical intervention that can be offered to the applicant for his chronic low back pain.  …”

   [13] Exhibit R1, T4 p 61.

   Evidence of Dr McLennan

7. Dr McLennan said that he had known the applicant for a long time and had extensive dealings with him.  In January 2012, he arranged for the applicant to be examined by Professor Malcolm Smith.  In relation to the Claim Period, Dr McLennan indicated obliquely that he would have said “yes” about the applicant’s impairments on the Impairment Tables.  In relation to the applicant’s fibromyalgia, he said that Dr Gribble had discussed the condition with the applicant.  Management of the condition was left to the applicant’s general practitioner, whilst diagnosis was made by Professor Smith on 21 January 2012.  Dr McLennan’s involvement was to refer the applicant to the relevant medical practitioner.  The applicant put a concept to him and suggested that fibromyalgia was a “container label” that covered a set of symptoms and that there was not a separate diagnosis for a separate condition.  Dr McLennan agreed that this description was a reasonable one.  He said that, prior to the date of claim, there was no specific test that showed fibromyalgia.  The symptoms were a bunch of different negative things.  He said that there was no specific treatment or medication available for fibromyalgia.  It was a matter of the applicant best seeing what he could make of his life. 

8. When he was asked about the applicant’s motor vehicle accidents, Dr McLennan said that he had sustained damage to his lower back and that the condition had existed prior to the DSP claim.  There was evidence of damage being suffered by the applicant in 2000 and 2012.  As to treatment options, the preferred option was lifestyle treatment and the applicant had gone to Professor Smith.  As to depression/anxiety, the treatment was the ongoing maintenance of the condition(s).  Dr Rene Pols had been used in the past and the condition(s) were a long term issue for the applicant.  He said that, when Professor Smith diagnosed fibromyalgia, this exacerbated the applicant’s problems.

9. When cross-examined by Mr Parker, Dr McLennan again said that there were no specific treatment options for fibromyalgia.  He agreed that “lifestyle changes” were required.  There could be no treatment plan as the condition could not be treated in any way.  In January 2012, a chronic care plan had been proposed, but there was no particular treatment.  He said that there could be changes to lifestyle to assist and to increase endurance.  It was the individual’s experience and the hope that something could be done.  When Mr Parker focused on lifestyle changes, Dr McLennan said the applicant should try to use muscles through exercise.  An increase in activity was required, and the applicant would have to work at it.  He had recommended this to the applicant.  Dr McLennan said that a chronic health plan would be appropriate and there must be access to resources.  The cost of a plan would be a problem in Clare, and the applicant wanted the DSP as a resource for the plan.  Gym membership would be acceptable, but that cost money.  At the time, the term “label” meant that there were no treatment options and none were going ahead.  Professor Smith had said that there was not a good prognosis for the applicant’s fibromyalgia.  When Mr Parker asked him about the applicant’s depression, Dr McLennan said that the term “severe” involved a situation where depression meant hopelessness.  He said he had arranged for Dr Rene Pols to review the applicant’s conditions so as to obtain a more accurate diagnosis. 

   Evidence of Dr Rene Pols

10. Dr Pols is a senior consultant psychiatrist.  He was referred to his letters dated 19 August 2008[14] and 27 June 2012.[15]  The Tribunal asked him whether the applicant had the conditions of fibromyalgia and depression/anxiety prior to his claim for DSP.  He said that the applicant had a general anxiety disorder in 2008 and there were no treatment options available in Clare.  For the applicant to pursue treatment options, he would have to come to Adelaide.  He said the applicant should regularly see a psychiatrist, but this would have to take place in Adelaide.  In his letter dated 27 June 2012, Dr Pols mentioned the applicant’s two motor vehicle accidents that had occurred ten years ago.  The results of the accidents had not been troubling the applicant in 2008.  When he first saw the applicant in 2008, he was the managing director of an accounting company which he was running with his partner at the time.  There had been problems with the business and the applicant’s depression/anxiety would need to be worked through.  He said that “emotional maturity” was required of the applicant. 

    [14] Exhibit A1.

    [15] Exhibit A2.

11. When cross-examined by Mr Parker, Dr Pols said that the only times he saw the applicant were on 11 August 2008 and 25 June 2012.  He said that in Clare he would undertake detailed assessments and mental health plans.  He was the applicant’s treating psychiatrist as part of the plan assessment and monitoring was necessary for extra treatment.  As a consultant psychiatrist, he would refer the applicant to specialists.  When referred to page 4 of his letter of 19 August 2008 and his diagnosis of generalised anxiety disorder, Dr Pols said that if the applicant did not undertake the treatment plan he would refer him to a specialist.  Moreover, he said that the applicant did not fulfil the criteria for major depression and that his depression was part of a generalised anxiety symptomatology.  Depression itself could arise from various disorders, such as general anxiety disorder.  As far as the applicant was concerned, things arose between 2008 and 2012, such that the applicant became seriously disabled.  This was reflected in his letter dated 27 June 2012.  The applicant hadn’t been diagnosed as suffering from dysthymia, which was depression in response to his helplessness.  There were external factors and internal factors with the applicant’s fibromyalgia and it was dysthymic where depression was not fulfilled. 

12. Dr Pols said that, in 2008, the applicant’s care plan involved him seeing someone regionally and he had referred the applicant to Dr Paul Cammell, a specialist psychotherapist.  Further, the evolving situation had not been dealt with.  The applicant could have martialled his resources and succeeded.  He could deal with his business going bad, but he did not do this.  Because of his anxiety, he did not do things to confront the problems.  There was the emergence of increasing levels of pain and depression.  The loss of his business and other issues manifested themselves in new conditions.  The applicant could not rise to the occasion of the serious setback.  He changed from a man full of energy, to one walking around with pain and introspection.  Somatisation developed and the applicant somatically focussed on all the things he could not do.  To deal with this, the applicant must be randomly active to undertake treatment.  Dr Pols said that he could not discuss treatment options with the applicant.  When asked whether the applicant had been fully treated and whether there were any options since 2012, Dr Pols said that the applicant would have to come to Adelaide and if he had capacity and motivation, he could do so.

    Evidence of Dr Andrew Pols

13. Dr Pols described himself as a general practitioner.  The Tribunal referred him to his medical report for DSP dated 29 August 2013.[16]  He said he did not have a copy of the report, in which the conditions of fibromyalgia, anxiety, depression and back pain were considered.  He said he did have a copy of his letter dated 9 July 2013,[17] in which the applicant’s conditions of depression, anxiety disorder and fibromyalgia were discussed.  When the Tribunal asked him how he was able to express opinions in July 2013 about the applicant’s conditions in the Claim Period, Dr Pols said that the opinions were based on medical records going back to 2008, including the letter from Dr Rene Pols.  Further, when asked how in July 2013 he was able to award points for the conditions from the Impairment Tables based only on the applicant’s medical records, Dr Pols said his assessment was based on his “best opinion”.  The applicant wanted a report from him for his appeal to the Tribunal and he had provided it.  When asked by the applicant whether his fibromyalgia had been fully treated, diagnosed and stabilised in the Claim Period, Dr Pols said that the condition had been diagnosed by Professor Smith on 21 January 2012.  He said there was no specific therapy for the condition, only a graded exercise program was available.  Because of this, the fibromyalgia was fully diagnosed, treated and stabilised at the time of Professor Smith’s diagnosis. 

    [16] Exhibit A3.

    [17] Exhibit A4.

14. When asked about the applicant’s low back pain and whether it had been diagnosed prior to the Claim Period, Dr Pols said that it had been so diagnosed.  The applicant then referred Dr Pols to the information he had provided to the ARO (Ms R Barraga) on 8 August 2014.  The report from Ms Barraga to the applicant relevantly read:

    “…I have successfully contacted your treating doctor Dr Andrew Pols on 8 August 2014 to discuss your condition of Fibromyalgia.  Dr Pols has confirmed with (sic) that you have undertaken a Pain Management Program with Dr Malcolm Smith, Rheumatologist.  Dr Pols advised me that you are now doing the home exercises as learnt from the Pain Management Program to manage your condition.  Dr Pols opined that your condition is fully treated and stabilised and that no significant functional improvement is likely to occur within the next 2 years or in the future.

    …”

    When the applicant asked him whether the information he gave on 8 August 2014 applied in the Claim Period, Dr Pols was unable to answer this question.

15. In cross-examination by Mr Parker, Dr Pols said that the applicant’s depression was diagnosed by Dr McLennan on 30 October 2006.  In expressing his opinion that the applicant’s depression was fully diagnosed, treated and stabilised as at 31 January 2012 Dr Pols said that, from medical records, anti-depressants were trialled for two years after diagnosis, so there was a track record of treatment.  There was engagement with the local health plan in 2008, care coordination in 2009 and evidence of ongoing therapy.  Because of the involvement by the applicant with Mr John Bannister and the mental health team, the applicant’s condition improved and the intervention was successful.  In relation to the fibromyalgia, he said the applicant could not expect improvement, but a graded exercise program was undertaken.

    Evidence of Professor Smith

16. It was Professor Smith’s evidence that he is a consultant rheumatologist.  In his medical report dated 24 January 2012, the only condition that was assessed was fibromyalgia, which Professor Smith said was diagnosed on 21 January 2012.  He said he was not dealing with other conditions and saw the applicant only on 21 January 2012.  Professor Smith said that the referral to him related to the applicant’s chronic pain, and other conditions were being managed by other more experienced practitioners.  Professor Smith said that he did not offer opinions on conditions outside his expertise.  When asked by the applicant whether fibromyalgia was a container label for other conditions or itself a separate condition, Professor Smith said there was no actual diagnostic support for the condition.  The diagnosis was a diagnosis of exclusion.  Thus, the only way to diagnose fibromyalgia was to analyse the condition and exclude other causes of its symptoms.  Fibromyalgia does not have any special treatment that is curative, but it is best to manage the symptoms of the condition.

17. When referred to his letter dated 19 March 2013, Professor Smith said that he saw the applicant on 16 March 2013 after his discharge from the Repatriation General Hospital.  The applicant had commenced cognitive behavioural therapy with Mr John Bannister.  This had preceded his treatment because the therapy was not in his area of expertise.  When asked by the applicant whether his treatment before January 2012 showed that fibromyalgia had stabilised, Professor Smith said he was not involved in the treatment prior to January 2012.  This was arranged by the Pain Management Unit and Dr Rene Pols.  Professor Smith could not offer any opinion on treatment before January 2012.

18. When cross-examined by Mr Parker about the conditions the applicant presented and the treatment given in the Claim Period, Professor Smith said fibromyalgia was a set of symptoms or tender points.  There were other conditions for pain and there can be alternative symptoms for pain.  It was necessary to treat those other conditions and address the remainder.  Thus, the treatment for fibromyalgia was directed at managing its symptoms so as to make patients functional to the best effect.  Mr Parker asked where a person was once diagnosed with fibromyalgia, could little be done to treat the condition?  Professor Smith said that this was not necessarily the case.  If there was fibromyalgia, the following could be done:

    (a)one could exclude other conditions;

    (b)there could be a management plan to address sleep disturbance;

    (c)one could address pain without medication, which was possible; and

    (d)there could be de-conditioning that the patient gets with fibromyalgia – an exercise program for pain avoidance. 

19. When asked how well other conditions were controlled Professor Smith said that, for significant depression, medication (anti-depressants) was appropriate.  In relation to mental illness, this must be addressed by a person with experience in psychology or psychiatry fields.  Professor Smith said that this had been attempted with the applicant, but had not been very successful.  He had been involved with psychiatrists and the main treatment had been conducted by Dr Rene Pols and the Clare Medical Centre.  For treatment in relation to mental illness, Professor Smith said he would defer to the specialists in that field.  The applicant had not been successful with cognitive behavioural therapy, which treatment was available in the country.  This treatment had not been coordinated by Professor Smith.  He said that the applicant had been admitted to the Repatriation General Hospital to see whether there was a treatable cause of back pain.  There had been a MRI scan and assessment by a neurosurgeon and pain specialist.

    CONSIDERATION

    Was the applicant qualified to receive DSP in the Claim Period from 27 January 2012 to 27 April 2012?

20. I note that the proceedings in this matter commenced with a hearing on 1 August 2014.  On that occasion, I adjourned the matter because the applicant’s medical practitioners were unable to give evidence to enable the matter to proceed.  I considered the evidence of the applicant’s medical practitioners was necessary to assist the applicant in prosecuting his application for review. 

21. In order to qualify for DSP, the applicant must satisfy the relevant requirements of s 94 of the Act. In other words, the applicant must be qualified for DSP on the date of claim or within the period of 13 weeks following. Evidence, such as medical reports, that come into being after the Claim Period may still be relevant, but only insofar as they are referrable to the applicant’s condition(s) during the Claim Period. This is supported by the judgement of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations.[18]  The learned Judge stated (in paragraph 1) that, as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “any subsequent change in her health is irrelevant to the questions which arise in this proceeding except in so far as it may cast light on the position at the relevant time.” Thus, the primary question in the present case is whether the applicant satisfied the relevant criteria in s 94 of the Act at any time during the Claim Period, rather than whether those criteria are currently satisfied.

    [18] [2007] FCA 404.

1. One of the relevant criteria for DSP is whether an applicant suffered an impairment (or impairments in combination) which attracted an impairment rating of 20 points or more under the Impairment Tables (see s 94(1)(b) of the Act). In this regard, the rules for applying the Impairment Tables in Part 2 of the Determination are relevant. Section 6(3) to s 6(6) of Part 2 relevantly require that:

   (a)the person’s condition causing that impairment is permanent;

   (b)the condition has been fully diagnosed by an appropriately qualified medical practitioner, has been fully treated and has been fully stabilised and the condition is more likely than not to persist for more than two years; and

   (c)a condition is fully stabilised if 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 two years.

2. In lodging the DSP claim, the applicant claimed to be suffering from fibromyalgia, asthma, anxiety disorder and sleep disorder.  In the medical report dated 24 January 2012 supporting the DSP claim, the only condition referred to by Professor Smith was fibromyalgia.  He diagnosed that condition on 21 January 2012.  The medical report also indicated that the applicant did not have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function.

3. In the JCA Report dated 13 February 2012, the assessor assessed the applicant’s fibromyalgia, being the only condition referred to by Professor Smith in his medical report.  What the assessor said in the report is set out in paragraph 10 of these reasons.  I note that both the assessor and the ARO did not consider that the condition had stabilised and no impairment points under the Impairment Tables were assigned in respect of the condition. 

4. I note that, in reviewing and affirming the ARO’s decision relating to the applicant’s fibromyalgia, the SSAT also reviewed the conditions of chronic fatigue syndrome, low back pain and depression.  In finding that the fibromyalgia was not fully diagnosed, treated and stabilised with respect to the applicant’s DSP claim, the SSAT also found that the total impairment rating with respect to the low back pain, fibromyalgia and depression was 0 points under the Impairment Tables.

   Analysis of the Evidence at the Hearing

   QKQX

5. In giving his evidence, the applicant relied on his written “Outline of Case with Contentions”.  In reading the Outline, he had obviously gained considerable knowledge relating to the condition of fibromyalgia.  From my limited research, I note that its exact cause is unknown, but is believed to involve psychological, genetic, neurobiological and environmental factors.[19]  The central symptom of fibromyalgia, namely widespread pain, appears to result from neuro-chemical imbalances including activation of inflammatory pathways in the brain which results in abnormalities in pain processing.  Dr McLennan has been his general practitioner and orchestrator of his treatment, but Dr Andrew Pols is taking over that role. 

   [19] “Wikipedia, The Free Encyclopaedia”, November 2014

6. The applicant made particular reference to an ARO review of a decision of the respondent made on 11 April 2014 to reject a later DSP claim.  In carrying out the review, the ARO decided that the applicant could be granted DSP from 28 February 2014, with arrears payable from that date.  Although findings of the ARO were made, they related to the status of conditions at the time and were supported by medical reports remote to and not appropriate to the Claim Period.  As such, the ARO’s decision was irrelevant and of no substantive assistance in the present proceedings.

   Dr McLennan  

7. It was clear from his own evidence that Dr McLennan was the orchestrator of the applicant’s treatment.  His involvement was to refer the applicant to the relevant medical practitioner, be it a treating doctor, a rheumatologist or a psychiatrist.  It seems he undertook little treatment himself.  He said that he had arranged for the applicant to be examined by Professor Smith.  It appears that the actual referral to Professor Smith was by Dr Philip Gribble.[20]  In relation to fibromyalgia treatment options, Dr McLennan said the preferred option was lifestyle treatment.  In relation to depression/anxiety, he referred the applicant to a consultant psychiatrist, Dr Rene Pols.  He thought the applicant should try to use muscles through exercise, an increase in activity was required and he had recommended this to the applicant.  A chronic health plan was appropriate and there must be access to resources to undertake the plan.  I note that Dr McLennan referred the applicant to Dr Rene Pols, who saw him on 11 August 2008 and 25 June 2012.

   [20] Exhibit R1, T4 pp 102-103

   Dr Rene Pols 

8. Following the referral by Dr McLennan, Dr Pols wrote to Dr McLennan on 19 August 2008 and 27 June 2012.  In the 2008 letter, Dr Rene Pols said:[21]

   “…  In terms of his management I think this young man is best served by the use of weekly psychotherapy.  He needs to become more secure in his own identity, views and judgements.  He also needs to accept that he is not like everyone else: he is extremely intelligent and has achieved greatly for his age (27).

   He needs mentoring, validation and encouragement whilst he comes to terms with the substantial issues in his family of origin.  Currently he has ‘thrown the baby out with the bathwater’ in terms of abandoning his family, but he has to come to putting this in perspective.  As such I have suggested he contact Dr Paul Cammell who is a specialist psychotherapist.  I do not think that specific medications need to be provided.  A one year care plan with self management goals would be beneficial.

   …”

   In his evidence Dr Pols said that the applicant did not fulfil the criteria for major depression and that his depression was part of a generalised anxiety symptomatology.  With the applicant, things arose between 2008 and 2012, such that the applicant became seriously disabled.  Increasing levels of pain and depression occurred and physically he changed.  Somatisation developed and rather than confront the problems he focussed on all the things he could not do.

   [21] Exhibit A1

9. In the 2012 letter, Dr Pols referred to behavioural activation.  He said:[22]

   “… I would recommend development of a 12 month care plan with graded exercise, physiotherapy starting perhaps with hydrotherapy and a walking program and increasing this over time.  This should happen irrespective of the responses from other people around him if this is at all possible.  There is little doubt that hydrotherapy will also assist.

   It will be interesting to see what happens should a Disability Support Pension be granted by the Administrative Appeals Tribunal.  Should this occur it may well be that the applicant’s disability will be increasingly aggravated as much of the problem is his unresolved business failure as well as his disengagement from his background and family. …”

   It seems clear that Dr Pols could not discuss treatment options with the applicant and when asked whether the applicant had been fully treated in relation to his fibromyalgia he said he would have to come to Adelaide to be involved in a care plan with exercise and hydrotherapy.  It is clear to me that Dr Pols believed that the applicant had capacity and motivation to come to Adelaide, but he was concerned that he did not have the frame of mind to do so. 

   [22] Exhibit A2.

   Dr Andrew Pols

10. I note that Dr Pols did not have a copy of the medical report for DSP dated 29 August 2013 that he would have prepared for the applicant.  He did have a copy of his letter dated 9 July 2013 in relation to the applicant’s depression, anxiety disorder and fibromyalgia.  When I asked him how he was able to express opinions in July 2013 about the applicant’s conditions in the Claim Period, he said the opinions were based on medical records going back to 2008.  When I asked him how he was able in July 2013 to award impairment ratings under the Impairment Tables for the applicant’s conditions, based only on the medical records, Dr Pols said his assessment was based on his “best opinion”.  Later, when the applicant asked him whether the information he gave when speaking to Ms Barraga on 8 August 2014 applied in the Claim Period, he could not answer this question.  Overall, I was not impressed with Dr Pols’ evidence.  In my view, the evidence was not properly based and was of little assistance to the question at issue.

    Professor Smith

11. In his medical report dated 24 January 2012, Professor Smith only assessed the applicant’s fibromyalgia, which he diagnosed on 21 January 2012, six days before the DSP claim.  In answering question 3E in the report about any past treatment for fibromyalgia, he said “None”.  The referral to him by Dr Gribble related to the applicant’s chronic pain, and other conditions were being managed by more experienced practitioners.  He did not offer opinions on conditions outside his expertise.  He said that, once diagnosed with fibromyalgia, several things could be done to treat the condition.  The way to diagnose fibromyalgia was to analyse the condition and exclude other causes of its symptoms.  When asked whether the applicant’s treatment before January 2012 showed that fibromyalgia had stabilised, Professor Smith said he was not involved in the treatment prior to January 2012 and he could not offer any opinion.

    CONCLUSION

12. In analysing all the material before me, it is clear that the applicant did not satisfy the requirements of s 94 of the Act. In particular, the applicant did not satisfy s 94(1)(b) in that his impairment rating was not of 20 points or more under the Impairment Tables. Although the disabilities listed in the DSP claim were fibromyalgia, asthma, anxiety disorder and sleep disorder, only fibromyalgia was referred to in Professor Smith’s medical report. In the report, there were no other medical conditions “that are generally well managed and that cause minimal or limited impact on ability to function”. On the evidence, the applicant’s fibromyalgia, although diagnosed by Professor Smith on 21 January 2012, has not been fully treated and fully stabilised. The applicant’s other medical conditions, whether listed in the DSP claim or referred to in the decision of the SSAT, were not fully diagnosed, treated and stabilised within the rules contained in section 6 of Part 2 of the Determination.

13. It follows that the applicant was not qualified for DSP at the time the claim was made and during the Claim Period.  To repeat, the applicant has been granted DSP from 28 February 2014 as a result of a later claim made on 4 March 2014.

14. Given my findings in paragraph 45 above regarding s 94(1)(b) of the Act, it is unnecessary for me to consider whether the applicant had a “continuing inability to work” and to deal with the other provisions in s 94.

    DECISION

15. For the reasons given above, the Tribunal affirms the decision under review.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

..............................[Sgd]..........................................

Administrative Assistant

Dated 5 December 2014

Date(s) of hearing	1 August & 23 October 2014
Date final submissions received	4 November 2014
Applicant	In person
Advocate for the Respondent	Mr A Parker
Solicitors for the Respondent	Department of Human Services