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

[2020] AATA 2943

Ramsay and Secretary, Department of Social Services (Social services second review) [2020] AATA 2943 (14 August 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5290

Re:Bradley Ramsay

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier A G Warner AM LVO (Retd), Member

Date:14 August 2020

Place:Perth

The Tribunal affirms the decision under review.

.....................[sgd]...................................................

Brigadier A G Warner AM LVO (Retd), Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification period – whether Applicant’s impairments were fully diagnosed, fully treated and fully stabilised at the qualification period – whether Applicant’s impairments attract 20 points under Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed

LEGISLATION
Social Security Act1991 (Cth) – ss 94, 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Administration) Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 - s 6(4)

CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Gallacher and Secretary, Department of Social Services [2015] FCA 1123
Newman and Secretary, Department of Family and Community Services [2002] AATA 917

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide

REASONS FOR DECISION

Brigadier A G Warner AM LVO (Retd), Member

14 August 2020

INTRODUCTION

1. Mr Ramsay seeks review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 30 July 2019 which affirmed a decision to reject Mr Ramsay’s claim for disability support pension (DSP) lodged on
   17 September 2018 (T1).

2. The hearing was conducted by telephone conference. Mr Ramsay gave evidence on affirmation and was supported by his mother.

3. Mr Ramsay’s general practitioner, Dr Graham Rowlands, also gave oral evidence.
   Mr Ramsay insisted that he be with Dr Rowlands when that evidence was given.
   Mr Ramsay then returned to his home nearby and after a short adjournment, the hearing proceeded.

4. Ms D Jones-Bolla of Sparke Helmore Lawyers represented the Respondent.

   BACKGROUND

5. Mr Ramsay is 33 years of age (T35/236). He was working as a process technician when he sustained an injury to his lower back on 22 February 2012 when the car he was driving hit a pothole in the road (T25/189).

6. On 17 September 2018, Mr Ramsay lodged a claim for DSP (T35) with the Department of Human Services (the Department) in respect of spinal injury, sciatic nerve damage,
   chronic depression, chronic anxiety, sleep apnoea, attention deficit hyperactivity disorder and suicidal mental health (T35/260).

7. On 3 October 2018, a DSP medical assessment was undertaken and it was recommended that Mr Ramsay was ‘manifestly medically ineligible’ for DSP (T36). The assessor found that: ‘Conditions not fully diagnosed, treated and stabilised’ (T36/267).

8. On 12 October 2018, the Department rejected Mr Ramsay’s claim for DSP on the basis that he did not have an impairment rating of 20 points under the Impairment Tables (T37).

9. Mr Ramsay requested a review of the decision and, on 27 February 2019, an Authorised Review Officer (ARO) affirmed the decision (T40). The ARO found that both Mr Ramsay’s chronic back pain condition and his mental health conditions were fully diagnosed but
   not fully treated or fully stabilised (T40/276).

10. Mr Ramsay applied for review to the AAT1, and on 30 July 2019 the AAT1 affirmed the decision under review (T2). The AAT1 determined that Mr Ramsay had no permanent conditions that could be allocated an impairment rating under the Impairment Tables
    (T2/9-11).

11. On 23 August 2019, Mr Ramsay lodged an application for review of the AAT1 decision with this Tribunal (T1). In his application, Mr Ramsay said that the AAT1 made its decision without relevant notes and that had the AAT1 read the medical certificate provided by
    Dr Avron Moffson (T49/308-309), it would have learnt that his condition is permanent

    ISSUE

12. The Tribunal must decide whether Mr Ramsay was qualified for DSP at the date his claim was lodged on 17 September 2018 or within the 13 weeks that followed. This requires consideration of whether the requirements set out in s 94 of the Social Security Act 1991 (Cth) (the Act) are met, in particular, whether Mr Ramsay had:

    (a)       a physical, intellectual or psychiatric impairment(s); and

    (b) condition(s) that are fully diagnosed, treated and stabilised causing impairment(s) which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Tables); and

    (c)       a continuing inability to work (CITW).

    LEGISLATION

13. The relevant legislation is contained in the Act, the Social Security (Administration) Act 1991 (Cth); the Tables; and the Social Security (Active Participation for Disability Support Pension Determination 2014 (the POS Determination).

14. The relevant policy is contained in the Guides to Social Policy Law: Social Security Guide (the Guide). To ensure consistency in decision making, the Tribunal should follow the relevant policy unless there are cogent reasons to depart from its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

15. The statutory and policy provisions to which the Tribunal must pay consideration are detailed comprehensively in the Secretary’s Statement of Issues, Facts and Contentions dated 6 February 2020 (Exhibit R1, paras 5.9 to 5.21). Section 94 of the Act sets out the first requirement for qualification for the DSP and that is that a person had an impairment at the time they lodged their claim. The second requirement for DSP is also prescribed in
    s 94 and provides that a person’s impairment must rate 20 or more points under the Impairment Tables at the time they lodge their claim or within 13 weeks of that date.

16. To apply the Impairment Tables, the condition or impairment must be considered permanent, and in the DSP context, the word ‘permanent’ does not have its usual meaning. For the purposes of the Impairment Tables, for a condition to be permanent, it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and be fully stabilised and must be more likely than not to last for more than two years (s 6(4) of the Impairment Tables).

17. There is also a requirement that an applicant for DSP must have a CITW pursuant to
    s 94(1)(c) of the Act. For DSP qualification, both the minimum qualifying impairment threshold of 20 points under the Impairment Tables and the CITW criteria must be met and are of equal importance.

    EVIDENCE

18. The Tribunal had before it the following evidence:

    ·The ‘T Documents’ (T1-T53, pp 1-355);

    ·The ‘Supplementary T Documents’ (ST1-ST6, pp 1-37);

    ·Medical Report by Dr Graham Rowlands dated 11 March 2020 (Exhibit A1);

    ·Letter from Yvonne Ramsay with Sir Charles Gairdner Hospital medical records dated 12 January 2019 (Exhibit A2);

    ·Letter from Dr Graham Rowlands dated 19 December 2019 (Exhibit A3);

    ·Bundle of medical reports and medical documents filed 13 December 2019 (Exhibit A4);

    ·Medical report by Dr Graham Rowlands dated 17 October 2019 (Exhibit A5);

    ·Secretary’s Statement of Issues, Facts and Contentions
    dated 6 February 2020 (Exhibit R1);

    ·The oral evidence of Dr Graham Rowlands; and

    ·The oral evidence of the Applicant.

    CONSIDERATION

    Qualification period

19. An applicant’s claim for DSP must be assessed on the basis of the applicant’s medical conditions as at the date of claim or within 13 weeks of that time. In Mr Ramsay’s circumstances, the qualification period is 17 September 2018 to 17 December 2018
    (the qualification period).

20. In the case of Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, Deputy President Handley made the following observations (at [31] – [33]):

    [31]In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.

    [32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404. FCA 404. Gyles J stated at [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”.

    [33] The language in cl 6(5) and (6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised,
    for example, the question for the tribunal is whether “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” (emphasis added). While hindsight may suggest that treatment did not result in improvement within 2 years, that is not the question for the tribunal to determine. The legislation requires the tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the tribunal’s decision.

    (Original emphasis.)

21. In Gallacher and Secretary, Department of Social Services [2015] FCA 1123, at [25]-[29], the Federal Court affirmed the principle that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to a person’s condition during the qualification period.

22. These authorities establish that a decision maker such as the Tribunal in the present matter can only consider an applicant’s qualification for DSP within the qualification period.
    If the applicant’s circumstances have subsequently changed it would be appropriate to lodge a fresh claim.

    Whether Mr Ramsay’s impairments attract 20 or more impairment points

23. The Respondent accepts that Mr Ramsay had impairments and that s 94(1)(a) of the Act was satisfied during the qualification period (Exhibit R1, para 5.22). Having regard to the medical evidence, the Tribunal agrees.

24. The Respondent contends that Mr Ramsay did not have any permanent conditions and had a total of 0 points under the Impairment Tables, and consequently did not satisfy s 94(1)(b) of the Act and was not qualified for DSP (Exhibit R1, para 5.60). The Respondent further contends that Mr Ramsay did not have a CITW (Exhibit R1, para 5.61).
    However, this Tribunal’s review is de novo and the Tribunal looks at the DSP claim afresh.

    Dr Graham Rowlands’ oral evidence

25. The Tribunal had regard to Dr Rowlands’ written evidence (Exhibits A1, A3 and A5).
    In his oral evidence:

    ·Dr Rowlands stated that he had treated Mr Ramsay since March 2019.
    He said that he had a lot of experience in opioid dependence, and assessed Mr Ramsay as having a very high opioid tolerance with a very high pain level that was incompletely managed elsewhere (Transcript p19).

    ·In reference to his statement in Exhibit A1 that Mr Ramsay
    ‘…has participated in an active support program for over 18 months in the past three years’, Dr Rowlands said he was reporting on his support for Mr Ramsay from a mental health perspective rather than a POS in the DSP context (Transcript p21). In reference to his statement, also in Exhibit A1,
    that ‘I am certain that his total and permanent level of disability excessds [sic] 20 points on a disability impairment table.’, Dr Rowlands confirmed that he made that assessment in March 2020 and without reference to the Impairment Tables (Transcript p26).

    ·Dr Rowlands said that Mr Ramsay was now at the end of surgical intervention for his back pain. He told the Tribunal that he could not say that surgical intervention was not a potential or possible treatment at the end of 2018 (Transcript p24).

    ·Dr Rowlands told the Tribunal that Mr Ramsay’s management was complex and that for the last 15 or 16 months he had been reviewing his medications. He said that he intended on referring Mr Ramsay to a new program,
    the opioid dependence pathway, and that would mean integration with pain clinics and pain management (Transcript p21).

    ·Dr Rowlands confirmed that he first prescribed methadone tablets for
    Mr Ramsay on 5 November 2019. He also told the Tribunal that Mr Ramsay had pursued the option of cannabis oil in his treatment, but as far as he knew it was not prescribed by a medical practitioner (Transcript pp21-22).

    ·Dr Rowlands said that it was unfortunate that the Tribunal was unable to see
    Mr Ramsay’s current state, which he described as halting in speech,
    almost shaking with anxiety and almost in tears. He opined that Mr Ramsay remained unemployable (Transcript p29).

    Chronic back pain

26. The evidence is that Mr Ramsay’s chronic back pain condition was fully diagnosed,
    as accepted by the Respondent. However, the Respondent contends that the condition was not fully treated and stabilised as at the qualification period (Exhibit R1, para 5.28).

27. On 28 September 2012, Mr Ramsay underwent decompressive spinal surgery – right L4/5 rhizolysis and a partial microdiscectomy (T6/118 and T25/192).

28. In a Sonic HealthPlus report dated 28 July 2015, Dr Michael Beinart, medicolegal consultant, outlined the history to Mr Ramsay’s back pain and noted

    In that incident [22 February 2012] he sustained an intervertebral disc disruption at the L4/5 which progressed to protrude resulting in right lower limb radicular pain... He has gone on to develop chronic mechanical lower back pain syndrome with his presentation continuing to be clouded by severe symptoms of depression…
    at this time, over three years post-injury, he remains reliant on narcotic medication for pain control (T25/192-193).

29. In the same report dated 28 July 2015, Dr Beinart reports:

    He no longer attends the Pain Management Clinic at Sir Charles Gairdner Hospital and no longer attends for any form of physical therapy (T25/191).

    …Mr Ramsay would benefit from the assistance of a multidisciplinary comprehensive pain management team. This would not only involve a Pain Management Specialist but also a Psychologist, a Social Worker,
     a Physiotherapist, Exercise physiologist and an Occupational Therapist (T25/195).

    It is important that he be slowly weaned off his narcotic analgesia (T25/195).

    …[H]e would benefit from an ongoing structured supervised exercise program. Ideally, this should be monitored by an Exercise Physiologist at a local aquatic centre where he undertakes both land and water-based exercise (T25/195).

30. On 5 December 2017, an interdisciplinary team (the IDT) (comprising pain specialists, psychiatrist, psychologist, physiotherapists, senior nurses, occupational therapist,
    and registrars) at Sir Charles Gairdner Hospital’s Department of Pain Management reviewed Mr Ramsay. In a report dated 8 February 2018, Dr P Max Majedi, specialist pain medicine physician and anaesthetist, reported that the ‘department did not support the use of Oxycodone and Oxycontin’ and recommended a rotation of analgesics, referral to a psychologist and psychiatrist, and a regular exercise program. Dr Majedi also noted that ‘Once Mr Ramsay [is] of [sic] the Oxycontin/Oxycodone successfully, the department is happy to offer Introduction to pain medicine’ (ST1/2).

31. The Pharmaceutical Benefits Scheme (PBS) Patient Summary for Mr Ramsay for the period 7 January 2015 to 7 January 2020 (ST3) indicate that Mr Ramsay did not cease oxycodone subsequent to Dr Majedi’s recommendation. Relevantly, the PBS records indicate that
    Mr Ramsay was filling regular prescriptions for oxycodone prior to, during, and since the qualification period with the last prescription for oxycodone being filled on 17 October 2019 (ST3/21).

32. On 18 June 2019, approximately one year after Mr Ramsay lodged his claim for DSP, Mr Ramsay’s case was reviewed again by the IDT at Sir Charles Gairdner Hospital’s Department of Pain Management. The composition of the team was similar to that detailed in paragraph [30] above and included an addiction medicine specialist.
    Dr Majedi produced a report dated 18 June 2019 and noted the Applicant had not been seen in two years. Dr Majedi outlined a detailed management plan and recommendations which included changes to Mr Ramsay’s pain medication; introducing adjunct medications including metformin, PEA and Naltrexone; medication for neuromuscular health including magnesium, fish oil and coenzyme Q10; an ongoing exercise program including tai chi, Pilates run by physiotherapists, and walking in a swimming pool; referral to alternate providers for assistance in ceasing oxycodone;
    and referral and ongoing input from community mental health provider (ST2/4).

33. The IDT opined that oxycodone was not a safe agent for Mr Ramsay and stated:
    ‘The IDT will not support the use of Oxycodone in any circumstance’ (ST2/4).

34. The Respondent submits that engagement in a multidisciplinary pain management program is reasonable treatment and relevantly cites a number of cases in which the Tribunal has taken that position with respect to back pain conditions (Exhibit R1, paras 5.34 to 5.36).   The Tribunal agrees, as it is not unusual for applicants for DSP to be referred to pain clinics, and it would be unusual for a finding that the conditions associated with that pain are fully treated and fully stabilised until after the pain management options have been fully explored.

35. Mr Ramsay told the Tribunal that his ex-wife was a physiotherapist and used to give him physiotherapy every day, and that he had done some hydrotherapy. In relation to the medical advice to cease Oxycodone/Oxycontin use, Mr Ramsay thought that it was easy for someone to say ‘“Get off this medication”’ and said ‘I don’t care what I’m on so long as it takes my pain away, but the moment that my pain comes back I will do whatever I have to do to get rid of it’ (Transcript p16). Mr Ramsay said that he did not like being reliant on medication to pass the day, but was suffering badly and on the verge of a mental breakdown (Transcript p10). 

36. The evidence is that at the qualification period Mr Ramsay had not ceased Oxycodone/Oxycontin medication as recommended and had not undergone reasonable treatment, namely engagement in an interdisciplinary pain management program as recommended by medical specialists. Although Mr Ramsay told the Tribunal that he had attended pain specialist appointments on a number of occasions, Dr Majedi reported on 18 June 2019, six months after the qualification period had ended, that Mr Ramsay had not been seen in two years and again recommended changes to Mr Ramsay’s treatment (see paragraph [32] above).

37. There is no evidence before the Tribunal such as to satisfy it that the recommended treatment was not likely to result in significant functional impairment. Mr Ramsay’s failure to cease Oxycodone/Oxycontin use and engage meaningfully in an interdisciplinary pain management program, and the evidence that further treatment was planned for the next two years leads to the Tribunal’s inevitable conclusion that the chronic back pain condition was not fully treated or fully stabilised at the qualification period..

    Depression

1. The Respondent refers to the report dated 24 July 2014 by Dr C Nick De Felice, consultant psychiatrist, who diagnosed ‘…severe major depressive disorder precipitated by the pain and limitations he has experienced subsequent to his 2012 MVA’ (T11/137), and accepts that Mr Ramsay’s psychological condition was fully diagnosed at the qualification period.
   The Tribunal agrees. However, the Respondent contends that Mr Ramsay’s psychological condition was not fully treated and fully stabilised as at the qualification period (Exhibit R1, para 5.47). In its consideration, the Tribunal has regard to the following:

   (a)At the outset, the Tribunal notes there is medical evidence of the relationship between Mr Ramsay’s chronic back pain considered above and his depression. In addition to the linkage articulated by Dr De Felice in the 24 July 2014 report, Dr Majedi in his management plan for Mr Ramsay’s back pain recommended input from a community health provider (see paragraph [32] above).
   Further, Dr Rowlands described Mr Ramsay’s condition as ‘multifactorial’ (Transcript p26). Dr Rowlands told the Tribunal that Mr Ramsay ‘on many occasions, is unable to get out of bed because of the pain and the psychological consequence of medication effects, chronic pain and physical disability’ (Transcript p27). The Tribunal is of the view that participation in the pain management program recommended for the back condition would be integral to any reasonable treatment for the depression.

   (b)Dr De Felice’s report dated 24 July 2014 indicates that Mr Ramsay’s current medication (Phenelzine 45 mg) could be increased to 90mg (T11/139). He also noted that other treatments that might need to be considered included electroconvulsive therapy (ECT) and that ‘…it would be appropriate to make provision for the input of a psychiatrist in his care’ and ‘…the input of a clinical psychologist to help with depressive symptoms’ (T11/140).

   (c)In a report dated 28 July 2015, Dr De Felice recorded that Mr Ramsay was on Phenelzine 90mg which had not been ‘very effective’ and he recommended alternative antidepressants and that Mr Ramsay would need to remain on such treatment ‘for a number of years... five years if not longer’ (T26/201).

2. The PBS records indicate that Mr Ramsay last filled a prescription for Phenelzine on 18 July 2016 (ST3/13) more than two years before he lodged the claim for DSP. The PBS records also indicate that Mr Ramsay only reengaged in pharmacotherapy in December 2019,
   more than a year after he lodged his claim for DSP, when a prescription for Duloxetine,
   an SNRI (serotonin-norepinephrine reuptake inhibitors), was filled (ST3/21).

3. In the 28 July 2015 report, Dr De Felice stated that Mr Ramsay ‘…could benefit from psychological treatment’ with a clinical psychologist and input from a psychiatrist, and that ‘This treatment might assist with depressive symptoms and also in managing chronic pain’ (T26/201).

4. In the Sonic HealthPlus dated 28 July 2015, Dr Beinart reports that Mr Ramsay
   ‘…no longer attends for counselling nor is he under the care of Psychiatrists.’ (T25/191).

5. The Fiona Stanley Hospital discharge summary dated 8 October 2015 notes that
   Mr Ramsay ‘…will be referred for ongoing clinical psych follow up at Peel CMHS to focus on non-pharmacological pain management strategies’ (T28/212). In his report dated
   8 February 2018, Dr Majedi also recommended referral to a community psychologist and psychiatrist (ST1/2).

6. Relevantly, the Respondent refers to the Medicare Report with respect to
   Mr Ramsay for the period 1 January 2015 to 22 January 2020 (ST4) as evidence that
   Mr Ramsay was not engaged with psychotherapy. The Respondent cites, correctly in the Tribunal’s view, the following attendances related to Mr Ramsay’s psychological condition:

   ·29 March 2016, presented to Dr Moffson in respect of GP mental health treatment (ST4/34);

   ·24 November 2017, presented to Dr Stuart McCormack, psychiatrist, in respect of ‘professional attendance on a patient by a Consultant Physician pactis’ (ST4/34);

   ·28 November 2017, presented to Dr Rowlands in respect of
   GP mental health treatment plan (ST4/34);

   ·11 December 2019 (outside the qualification period), presented to Dr Rowlands in respect of GP mental health treatment plan (ST4/34; and

   ·19 December 2019, (outside the qualification period), presented to Philip Hunt, psychologist in respect of ‘focused psychological strategies health service provided to a person’ (ST4/11).

7. Before the Tribunal, Mr Ramsay said that he had been trying very hard to get an appointment with a psychiatrist and had only managed to do so the previous day because of the Tribunal hearing. He added that he had a ‘mental health plan set up through him…
   a few months ago’ (Transcript p7).

8. In a letter dated 19 December 2019, Dr Rowlands reported an improvement in Mr Ramsay’s mental health and insight. He stated that he had referred Mr Ramsay to psychologist,
   Mr Phil Hunt, and that ‘Until this time Mr Ramsay has remained unwell and hasn’t had the psychological capacity to engage in psychotherapeutic interventions’ (Exhibit A3).
   Before the Tribunal, Dr Rowlands confirmed that the referral was made in December 2019. 

9. The Respondent cites the Mood Disorders Clinical Practice Guideline developed by the Royal Australian and New Zealand College of Psychiatrists (clinical practice guideline) in support of the submission that a combination of psychotherapy and pharmacology is the recommended treatment for chronic depression. The Respondent points to the following relevant passages of the clinical practice guideline:
   
              Treatment options for mild or moderate major depressive disorder

   In mild to moderate episodes of MDD, psychological management alone may be adequate, especially early in the course of illness. However, episodes of greater severity, and those that run a chronic course, are likely to require the addition of antidepressant medication, or some other combination of psychological and pharmacological treatment.

   …

   Combined psychological and pharmacological treatments.

   Combining psychological and pharmacological treatments has been shown to improve clinical outcome and significantly decrease relapse and recurrence rates (Beshai et al., 2011), which may be partially due to the effect of psychological treatments on adherence (Pampallona et al., 2004). More specifically, research trials have found that maintenance CBT in combination with antidepressant medication was superior in preventing relapse to maintenance antidepressant medication alone (Beshai et al., 2011; Paykel et al., 1999), and the observed advantage persisted several years later (Paykel et al., 2005) (Exhibit R1, paras 5.49 and 5.50).

   (Emphasis omitted.)

10. As the clinical practice guideline has been developed for the management of mood disorders and is based on scientific evidence supplemented by expert clinical consensus, and its relevance and application to the present matter is not disputed, the Tribunal accepts the Respondent’s submission.

11. For completeness, the Tribunal notes the Respondent’s acknowledgement of the medical certificate dated 11 February 2016 in which Dr Nazmi Mikhaiel, general practitioner, opined that Mr Ramsay ‘did not benefit [sic] from seeing a psychiatrist&or [sic] a pshycologist [sic].the [sic] actual risk outway [sic) the benefit,’ (T30/217). The Tribunal gives this opinion no weight as its basis and context are not stated, it predates the submission of the DSP claim by some 30 months, and is inconsistent with the recommendations of Dr De Felice, a consultant psychiatrist, and Dr Majedi,
    a pain management specialist.

12. The evidence is that Mr Ramsay had not engaged in reasonable treatment,
    namely psychotherapy, pharmacotherapy and a multidisciplinary pain management program as at the qualification period. Consequently, this condition could not be considered to be fully treated and fully stabilised and cannot be assigned an impairment rating under the Impairment Tables.

    Other condition - ADHD

13. The Respondent contends that there is insufficient evidence to determine whether
    Mr Ramsay’s condition of attention deficit hyperactive disorder (ADHD) was fully diagnosed, treated and stabilised as at the qualification period, and notes that when the condition is treated it does not result in any functional impairment (Exhibit R1, para 5.57).

14. In his medicolegal report dated 24 July 2014, Dr De Felice stated that Mr Ramsay reported that he had seen Dr Combrink, psychiatrist, in 2010 or 2011 and that at that time, he was started on Ritalin (40mg daily) and ‘he was much better with this treatment, all his symptoms disappeared…’ (T11/136).

15. The AAT1 decision records:

    [50] Mr Ramsay told the tribunal that he takes Ritalin 10 mg four times daily for the condition. He said that he has been on the medication for the condition since 2010, through Dr Combrink, a psychiatrist. Mr Ramsay said the condition alone would not preclude him from working (T2/11).

16. Dr Rowlands told the Tribunal that Mr Ramsay ‘has chronic ADHD, previously diagnosed’ (Transcript p26).

17. The Tribunal accepts that the ADHD condition was fully diagnosed at the qualification period and that it has some impact on Mr Ramsay’s functioning. However, in the absence of relevant medical detail, the Tribunal is unable to determine whether the condition was fully treated and fully stabilised and thus an impairment rating under the Impairment Tables could not be assigned.

    Other condition – sleep apnoea

18. The Tribunal finds that there is insufficient evidence to determine whether Mr Ramsay’s sleep apnoea was fully diagnosed, treated and stabilised as at the qualification period.
    The Tribunal takes consideration of this condition no further.

    Overall impairment rating

19. The Tribunal finds that as at the qualification period, Mr Ramsay did not have any conditions that could be assessed under the Impairment Tables and so has 0 impairment points. He therefore did not satisfy s 94(1)(b) of the Act and was not qualified for DSP at that time.

    CITW - s 94(1)(c)

20. As the Tribunal has found that Mr Ramsay did not have an impairment rating of 20 points and did not satisfy s 94(1)(b) of the Act, it is unnecessary for the Tribunal to consider whether Mr Ramsay has a CITW pursuant to s 94(1)(c) of the Act. That said, the Tribunal nevertheless notes the evidence that Mr Ramsay had not participated in a POS for at least 18 months within the three years before his DSP claim (ST5), and the Job Capacity Assessments dated 25 June 2015 (T24/187) and 24 September 2015 (T27/208) which conclude that Mr Ramsay had a work capacity of between 15 and 22 hours per week within two years with intervention.

    CONCLUSION

21. For the reasons detailed above, the Tribunal finds that Mr Ramsay’s conditions do not attract an impairment rating of 20 points or more under the impairment Tables.
    Therefore, Mr Ramsay was not qualified for DSP as at the qualification period.

22. The Tribunal is sympathetic to Mr Ramsay and his complex medical circumstances and conditions, and notes that it is open to him to again test his eligibility for DSP with recent relevant medical evidence from the medical practitioners involved in the management and treatment of his various conditions.

    DECISION

23. It follows from all of the above that the decision to reject Mr Ramsay’s claim for DSP was the correct and preferable decision, and consequently the Tribunal affirms the decision under review, that being the decision of the Social Services & Child Support Division of the AAT dated 30 July 2019.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner AM LVO (Retd), Member

.......................[sgd]................................................

Associate

Dated: 14 August 2020

Date of hearing:	19 June 2020
Applicant:	Self-represented
Counsel for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers