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

RTYG and Secretary, Department of Social Services (Social services second review) [2021] AATA 4557 (7 December 2021)
Division:GENERAL DIVISION
File Number: 2020/2778
Re:RTYG
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:7 December 2021
Place:Perth

The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 16 April 2020, is affirmed.
.........[Sgd]...............................................................
Member S Barton
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the Applicant met the eligibility requirements for a disability support pension – fully treated and stabilised – Qualification Period – assigning impairment ratings – Impairment Table 12 – Visual Function – Impairment Table 1 – Functions requiring Physical Exertion and Stamina – eye damage from LASIK surgery – fibromyalgia/ chronic fatigue syndrome – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth) – ss 80(1), 179
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5, 6(1), 6(3), 6(4), 6(5), 6(6), 6(7), 10
CASES
Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 331
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Shams and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 335
Sidwell and Anor and Secretary, Department of Social Services and Anor [2015] AATA 402
REASONS FOR DECISION
Member S Barton
7 December 2021
BACKGROUND

The Applicant seeks review of a decision made by the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal), dated 16 April 2020 (Reviewable Decision) which affirmed a decision to reject the Applicant’s claim for a disability support pension (DSP).
FACTS
The Applicant is 33 years of age.
On 18 September 2018, the Applicant lodged a claim for a DSP with Services Australia (Centrelink). She listed in her application the conditions of fibromyalgia, which caused widespread fatigue and pain, LASIK induced eye damage and an inability to manage with large groups of people (T35/221).
On 18 December 2018, the Applicant’s claim for a DSP was rejected because she was assessed as not having an impairment rating of 20 points or more under the Impairment Tables, being the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (T38/250) (Original Decision).
The Applicant requested a review of the Original Decision, which was referred to an Authorised Review Officer (ARO). However, on 5 February 2020, an ARO of Centrelink wrote to the Applicant to advise her that the ARO had found the Original Decision to be correct, and that her review was unsuccessful (T51/283) (ARO Decision).
The ARO found that while the Applicant’s dry eye syndrome secondary to LASIK surgery was permanent in that it was fully diagnosed, treated and stabilised, it could only be assigned an impairment of 10 points under Table 12 – Visual Function of the Impairment Tables. The ARO further found that the Applicant’s fibromyalgia was not permanent as it has not been treated and stabilised, and the Applicant’s mental health condition was not permanent as it had not been fully diagnosed, treated and stabilised, and therefore could not be assigned and impairment rating (T51/283-286).
On 29 February 2020, the Applicant lodged an application seeking review of the ARO Decision in the AAT1 (T55). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 16 April 2020 (T2/17-28).
On 9 May 2020, the Applicant lodged an application for second review in the General Division (AAT2) of this Tribunal.
JURISDICTION
The application for review was made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth) (the AdministrationAct). Therefore, the Tribunal is satisfied that it has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The application was heard on Monday 20 September 2021. The Applicant was

represented by Ms C Eagle of Welfare Rights & Advocacy Service, both the Applicant and Ms Eagle appeared in person. The Applicant gave oral evidence and was cross-examined. The Respondent was represented by Ms L Hinwood of Sparke Helmore Lawyers, who appeared by telephone. Witnesses appeared in person and by telephone.
The Tribunal admitted the following documents into evidence at the hearing:
·Applicant's Submissions with Annexures 1-4, dated 23 May 2021 (Exhibit A1);
·Applicant's Response to Respondent's Statement of Facts, Issues and Contentions (undated), filed 5 October 2020 (Exhibit A2);
·Applicant's Submissions (undated), filed 15 August 2020 (Exhibit A3);
·Letter from Dr Craig Turner, dated 27 July 2020 (Exhibit A4);
·Email from Move Forward Quins Physiotherapy, dated 17 July 2020 (Exhibit A5);
·Letter from Ms C Eagle (undated), filed 2 July 2020 (Exhibit A6);
·Letter from Ms Natalie Deverneuil, dated 17 June 2020 (Exhibit A7);
·Letter from Professor Sergio Starkstein, dated 15 May 2020 (Exhibit A8);
·Letter from Dr Wai K. Leong, dated 22 April 2010 (Exhibit A9);
·Letter from Dr Jennifer Cornell, dated 14 May 2020 (Exhibit A10);
·Section 37 T-Documents, consisting of T1-T67; pages 1-399 (Exhibit R1);
·Respondent's Statement of Issues, Facts and Contentions, dated 18 September 2020 (Exhibit R2).
The Tribunal also heard oral evidence from:
·The Applicant’s mother;
·Dr Jennifer Cornell, General Practitioner; and
·Mr Glen Bailey, Sports Physiotherapist.
ISSUES
The overall issue for determination by this Tribunal is whether, during the Qualification Period, the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant had a physical, intellectual or psychiatric impairment or impairments for the purpose of s 94(1)(a) of the Act;
(b)if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of at least 20 points under the relevant Impairment Tables; and
(c)whether the Applicant had “a continuing inability to work” for the purposes of s 94(1)(c) of the Act.
LEGISLATION
The legislation applicable to this matter is contained in:
(a)the Act;
(b)the Administration Act; and
(c)the Impairment Tables.
Qualification for DSP
The qualification requirements for a DSP are set out in s 94(1) of the Act:
(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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; …
The criteria contained within s 94(1) of the Act are conjunctive, meaning for a DSP application to be successful, an applicant must satisfy each sub-section.
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
The Minister has determined tables as contemplated by s 26 of the Act in the form of the Impairment Tables. The Impairment Tables also set out rules as to how to apply the Impairment Tables.
The purpose and general design principles of the Impairment Tables are set out in s 5 and describe the functional impacts associated with certain types of conditions, and assigns ratings to determine the level of functional impact of the impairment on an applicant.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6(1) of the Impairment Tables states that “[t]he impairment of the 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 …” (emphasis added). An impairment rating can only be assigned if the condition is permanent (s 6(3) of the Impairment Tables).
With regard to the permanency of conditions, ss 6(4), 6(5) and 6(6) state:
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 …
(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.
(Notes omitted.)
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.
Reasonable treatment, defined in s 6(7), 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.
Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments. It is first necessary to identify the loss of function and refer to the Impairment Tables related to that function, and then to identify the correct impairment rating.
Qualification Period
Section 80(1) of the Administration Act provides that where the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.
The qualifying period for assessing whether or not a person is qualified for a payment has been the subject of a number of decisions in both the Federal Court and the High Court. In Freeman v Secretary, Department of Social Security (1988) 15 ALD 671, the Court found, at [12]:
The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is therefore less than would be the jurisdiction of the Tribunal in respect to a refusal to grant a pension or benefit or a decision suspending the payment of a pension or benefit. In the latter cases, there may well be an ongoing entitlement to a pension or benefit which the Tribunal should recognise when formulating its decision. However, if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration. Any entitlement of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim which, having been made, would only become the subject of review within the Tribunal’s jurisdiction once a decision with respect to it had been made by an officer of the Department of Social Security and that decision had been the subject of appeal and reconsideration in accordance with s19.
Referring to this decision, in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, the High Court found, at [144]:
In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account…
The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision.
(Footnotes removed.)
The effect of these decisions is described by Deputy President Forgie in Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066, at [48]:
Applying these principles to the decision I am required to review, it seems to me that the inherent nature of the decision and the statutory context in which it is made confine me to evidence that relates to Mr Baum’s condition, impairment and work capacity during that 13 week period. That does not mean that all of the evidence in the form of reports, assessments or records had to be generated in that period. What it means is that they must relate to that period.
Following these established precedents, the Tribunal is restricted in its consideration of the Applicant’s condition at the date of her claim, or within 13 weeks of that claim, which provides the Tribunal with a qualification period of 18 September 2018 to 18 December 2018 (Qualification Period).
Following the practice in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [31], cited with approval in Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1, medical reports generated after a qualification period must be relevant to that period.
EYE CONDITION
The Applicant underwent LASIK eye surgery in 2014, resulting in damage to her eyes. The condition has been the subject of a number of diagnoses, including by Dr Ian Chan on 12 August 2016 (T15/149).
The Tribunal accepts that, for the purpose of s 94(1)(a) of the Act, the Applicant suffered from a physical impairment. The Tribunal accepts the condition has been fully diagnosed, fully treated, fully stabilised and, on the basis of the available evidence, likely to persist for more than two years.
The Applicant’s eye condition was assigned a rating of 10 points in a Job Capacity Assessment Report, submitted on 12 December 2018 (T37/244). This rating is not disputed by the Applicant.
Having regard to the evidence in the Job Capacity Assessment Report and by her doctor, Dr Jennifer Cornell, (T37/244), the Tribunal is satisfied the LASIK induced eye damage has had a moderate functional impact in accordance with Table 12 – Visual Function, of the Impairment Tables and the rating of 10 points is appropriate.
FIBROMYALGIA
The Applicant was formally diagnosed with chronic fatigue syndrome/ fibromyalgia on 22 April 2010 by Consultant Neurologist, Dr Wai K Leong (R2/Annexure D). The fibromyalgia diagnosis was also confirmed by rheumatologist, Dr Mark Reed, on 31 May 2010 (T4/119-120).
The Tribunal notes that Dr Leong diagnosed the Applicant with ‘Chronic fatigue syndrome/fibromyalgia’ (R2/Annexure D), the Applicant’s General Practitioner, Dr Jennifer Cornell, lists the two conditions separately (T18/154), while Dr Reed recorded fibromyalgia only (T4/119-120). The Applicant’s representative, Ms Eagle, has drawn the Tribunal’s attention to a statement by the United States based Mayor Clinic that (A1, para [14]):
there are so many overlapping symptoms between CFS [chronic fatigue syndrome] and Fibromyalgia that some researchers consider the two disorders to be different aspects of the same disease.
The Applicant contends that (A1, para [15]):
… the medical evidence is that in addition to Fibromyalgia, she also suffers from CFS [chronic fatigue syndrome], a condition that had been fully diagnosed and treated and the resulting impairment from CFS can and should be considered together with the Fibromyalgia.
The Respondent has noted that while the Applicant and Dr Leong refer to the chronic fatigue syndrome ‘alongside’ the fibromyalgia, there is no evidence that the Applicant’s chronic fatigue has been diagnosed as a separate condition (R2, para [48]-[49]). The Respondent contends that even if it was conceded that it was a separate condition, the impairment from the condition, namely fatigue, would be indistinguishable from the fatigue produced by the fibromyalgia (R2, para [50]).
There is clearly a degree of imprecision as to where one condition ends and the other begins, and there is broad consensus by the parties that the two conditions overlap. During the hearing, Ms Eagle stated ‘that the impairment resulting from chronic fatigue compounds the impact of the fibromyalgia’, but that it was not possible to say what impairment caused what effect (transcript/7).
The Tribunal accepts that, for the purpose of s 94(1)(a) of the Act, the Applicant suffered from a physical impairment relating to her fibromyalgia, and in doing so recognises that it may be associated with an overlap with chronic fatigue syndrome. However, any impairment from the latter is likely to be indistinguishable from the impairment resulting from the fully diagnosed fibromyalgia.
Is the condition fully treated and stabilised?
As is detailed above, an impairment rating can only be assigned if the condition is permanent, which, for the purposes of the Impairment Tables, is if it has been fully diagnosed by an appropriately qualified medical practitioner; if it has been fully treated and stabilised; and if it is more likely than not, in light of available evidence, to persist for more than two years. As is accepted above, the Applicant’s fibromyalgia condition is fully diagnosed. The question remains whether it was fully treated and stabilised and it is the Respondent’s contention that it is not.
Exercise Program

The Respondent has noted that Dr Reed, in his diagnosis of 31 May 2010, made the following recommendation around physical exercise (R2, para [32.1]). Dr Reed wrote (T4/120):
… the mainstay of treatment for her soft tissue symptoms, will be through graded aerobic exercise. She is aware that there is likely to be a flare of both pain and fatigue after activity, and that she will need to slowly pace her exercise increments over several months.
The Respondent contends that there is no evidence from a medical practitioner that the graded exercise treatment recommended by Dr Reed was subsequently pursued (R2, para [32.1]). The Respondent contends therefore, that the Applicant’s condition was not fully treated during the Qualification Period.
The Respondent pointed to medical certificates from the Applicant’s General Practitioner, Dr Cornell, dated 28 February 2017 and 26 July 2018, noting that gradual exercise is planned treatment and was not part of the Applicant’s past treatment (R2, para [32.2], T21/160, T29/182).
The Respondent also notes a report from pain specialist, Dr Ravi Agrawal, dated 8 January 2018, recommending the Applicant undertakes a paced physical activation program and undergoes evaluation from a physiotherapist. Dr Agrawal enrolled the Applicant in a pain education program to encourage the Applicant to learn self-management strategies (R2, para [32.3], T24/170-171).
Mr Glen Bailey, a physiotherapist, evaluated the Applicant on 25 October 2018. On 7 January 2019, when providing a summary of her current management plan, he noted they were focusing on a gradual program of exercises to improve core stability and desensitise chronic pain, which would progress over the next six months with the requirement of daily commitment (T39/252).
There is a further report from pain specialist Dr David Hamilton, which makes no mention of an exercise program, stating ‘No suggestions to current therapies as she is already on glial modulators’ (T27/178). The Respondent contends that the omission of exercise as a treatment is not a contradiction of Dr Agrawal’s recommendation. The Tribunal accepts this contention, also noting that Dr Hamilton reported that, ‘the vast majority of the consultation was surrounding the topic of cannabis based products…’ (T27/178).
With respect to the graded exercise treatment, the Applicant submits that she had previously undertaken such treatment and it had not been successful. Therefore, it was not reasonable treatment insofar as it could reliably be expected to result in substantial improvement in functional capacity or regularly undertaken (A1, para [42]).
The Applicant states that she first suffered from fibromyalgia in 2003, brought on, she believes, by orthodontic work (A1, para [23]). According to the Applicant, this diagnosis was made by her General Practitioner, Dr Craig Turner. She contends that she attended 19 physiotherapy sessions at Move Forward Quinns Physiotherapy, commencing 5 March 2003, however, due to changes in the computer system, the full details of her treatment are not available. The only details available are the date the sessions commenced, and the number of sessions that had occurred, being 19 sessions in total, for ‘headaches’ (A5).
According to the Applicant, the ‘headaches’ were from her orthodontic work, which was associated with the onset of the fibromyalgia. She states that her treatments included muscle relaxation techniques, stretches and graded exercises, including on an exercise bike, and swimming (A1/Annexure1, para [4]). The Applicant states that she ceased her program in mid-2005, as the pain and fatigue were affecting her schooling. She claims that when she stopped the exercise her energy levels increased and the pain decreased, and she stopped seeing the physiotherapist. (A1/Annexure, para [6]).
Between 2006 and 2009, the Applicant states she undertook her own exercise regime, trying low grade walking for a period, which was not successful, and taking up swimming again. She stopped again in 2009 when she transferred to another university, which involved a longer commute and walk, which exacerbated her symptoms (A1/Annexure 1, para [7]). In 2010, she attended Anchorage Drive Physiotherapy Centre, which recommended stretches and graded exercise. She continued this treatment, but stopped again around 2011, and her pain and energy levels improved (A1/Annexure 1, para [8]).
Between 2011 and 2017, the Applicant attempted to balance studies and employment, the demands of which caused pain and fatigue and prevented her from any exercise treatment. She had concluded by this point that exercise would not help her condition (A1/Annexure 1, para [9]-[15]).
As stated above, the Applicant saw pain specialist, Dr Agrawal, in January 2018. She states that she told him that she had previously undertaken graded exercise programs to no avail, to which he said it was ‘the only treatment they had’ (A1/Annexure 1, para [15]). The Applicant told the Tribunal at the hearing that Dr Agrawal did not listen to her, rushed and misspelt the name of two of her medications (transcript/14).
In October 2018, the Applicant saw Mr Bailey, who, according to the Applicant, provided treatment very similar to what she competed in 2003. In February 2019, Mr Bailey reported (T40/253):
During this time, she has shown repeatedly that her symptoms are worsened by increased levels of activity. The goal of her exercise program has been to desensitise her to activity, but whenever she is required to work more than 10 hours … at work, her fibromyalgia increases her pain levels to preclude exercise …
The Applicant drew the Tribunal’s attention to a report written by Mr Bailey dated 8 May 2020, which states (T1/16):
At the time that her exercise program was implemented, it was anticipated that the program could not result in a substantial improvement in her functional capacity.
The Applicant contends that if improvement in functional capacity was not expected, it was not reasonable treatment.
CONSIDERATION
Regarding the notion of reasonable treatment, the Applicant’s representative has drawn the Tribunal’s attention to a decision of the Federal Court in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (Harris). In this matter, the Applicant had a number of impairments, including chronic pain, which the Tribunal found was not fully treated or stabilised, relying on the evidence of a physiotherapist, who recommended that participation in a pain management program may assist the customer to improve pain management (Harris at [13]).
Gyles J commented that (Harris at [17]):
It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. My initial impression, having read s 94 of the Social Security Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis.
However, in this matter, the recommendation for graded physical exercise has been made by a number of medical professionals, it was not a last minute, speculative treatment made by another medical practitioner.
The Applicant’s representative has also pointed to other decisions made by the Tribunal, notably Netherwood and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 331 (Netherwood), Sidwell and Anor and Secretary, Department of Social Services and Anor [2015] AATA 402 (Sidwell) and Shams and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 335 (Shams).
In Netherwood, the Applicant suffered from a range of longstanding conditions and was being treated by her General Practitioner, who had, at one point, referred her to a neurologist, who she had seen eight years earlier, with no improvement in her condition. The Tribunal in Netherwood found at [31-32]:
… There is no evidence, however, that a substantial improvement can reliably be expected as a result of a further examination by a neurologist. The initial consultation with [the neurologist] in 2002 did not result in a clear explanation of the cause of Ms Netherwood ’s pain symptomatology or any significant improvement in her condition subsequently.
…
For these reasons, the proposition that such treatment would be likely to result in a significant functional improvement in Ms Netherwood’s generalised myalgia condition within the next 2 years is a matter attended by substantial doubt …
In Shams, the Applicant had not filled a script for medication for the treatment of stress, which could be the basis for finding that the condition was not fully treated, however the Tribunal found the condition was fully treated, noting at [36]:
… I accept though that, having regard to her sensitivities due to her thyroid problem and her history of stomach problems with some medication, that she is legitimately concerned about side effects. I accept too that she doubts the long term benefits of such medication …
In Sidwell, the Applicant suffered from chronic back pain and was treated by his General Practitioner. A physiotherapist, conducting the Job Capacity Report, found that the back condition was permanent but not fully treated and stabilised given their view that he would benefit from physiotherapy treatment and a specific spinal exercise program. However, the Tribunal was satisfied that the condition was fully treated and stabilised.
These authorities are useful in considering the matter of fully treated and stabilised, however there are some key differences.
The Applicant has provided evidence that she sought treatment with a physiotherapist after her General Practitioner, Dr Turner, provided a diagnosis of fibromyalgia. However, there was no formal diagnosis of fibromyalgia until 2010. The Tribunal accepts that it is likely the Applicant’s General Practitioner thought the Applicant suffered from fibromyalgia and the treatment at Move Forward Quinns Physiotherapy may have sought to address or alleviate some of those symptoms. However, it was a speculative diagnosis, not by a relevant specialist, and the physiotherapy records treatment for headaches.
On the evidence available, the Applicant’s condition can only be found to be fully diagnosed in 2010. There is limited evidence of the treatment, in terms of graded physical exercise, before that time, let alone if it was appropriate to the condition. More detailed records from Move Forward Quinns Physiotherapy may had shed more light on the physical exercises that the Applicant undertook. That said, it is unsurprising, given the passage of time and the fact that the Applicant did not remain a regular patient, that records do not remain.
On 14 May 2020, Dr Cornell wrote in a report that the Applicant underwent a graded exercise program in September 2018, however the exercise program, in her view, was ‘not expected to make substantial improvement to her functional capacity and in fact did not’ (T64/334). However, this was likely a view formed in hindsight.
During the hearing, Dr Cornell noted the Applicant had ‘trialled numerous things’. I didn’t list everything … Because there’s so many things that she’s tried (transcript/20-21). With respect to her report of 14 May 2020, Dr Connell stated (transcript p22 at [20]):
I think she'd tried it in the past and it hadn't helped her, but the specialist had recommended it again, so she had to undergo it again. So when she saw the fibromyalgia specialist they recommended that she start a gradual exercise program, so therefore she tried it again, but she had tried it in the past and it had not been helpful for her.
When asked if she had seen any reports from physiotherapists or other specialists, Dr Cornell replied that she had not, and that her knowledge was based on what the Applicant had advised her. This should not be taken to be a criticism of Dr Cornell, as Dr Leong noted, the Applicant was a ‘good historian’ of her condition (A9). Dr Cornell has been seeing the Applicant for a number of years, moreover the Applicant is clearly very intelligent with a background in medical sciences. It would be entirely reasonable for Dr Cornell to accept the Applicant’s account of her condition and treatment. However, the problem for the Tribunal is twofold: there is limited evidence of that physical treatment and Dr Cornell’s observations are made in hindsight.
The Applicant’s representative noted Mr Bailey’s observation in May 2020, that functional improvement was not expected when the treatment commenced in 2018 (T1/16). However, when he first saw her in October 2018, he was focusing on a progressive program over six months, which would require ongoing daily commitment for any positive effect (T39/252).
On 6 February 2019, Mr Bailey again mentioned the need for daily commitment for any positive effect. The very fact that he continued to mention ‘positive effect’, suggests there was some hope for functional improvement.
Mr Bailey’s May 2020 observation was perhaps influenced by hindsight, as he noted in the hearing (transcript, p 33):
… that is such a contradiction to the approach that I've had up to that point reading my previous notes without excluding that being a contradiction – the only explanation I could have for it is that following further communication with [the Applicant] the exercise program wasn't achieving the goals that I'd set out. So I guess the optimism that I'd just referred to had run out by that stage.
Clearly, the graded exercise treatment had not seen an improvement in the functional capacity of the Applicant. However, this is a judgement formed with the benefit of hindsight. The Tribunal must restrict its decision making to the Qualification Period and what was known at the time is as follows:
(a)The Applicant was formally diagnosed with her condition in 2010.
(b)It was recommended that she undertake some form of graded exercise.
(c)In addition to the medication she was taking, the Applicant was seeking treatment from a physiotherapist who specialised in pain management and there was, at that time, no indication that it would not have a functional improvement in the Applicant’s condition.
CONCLUSION
This is a challenging decision, insofar as the Applicant has suffered from fibromyalgia for a considerable period of time and no doubt sought a range of remedies over that period. However, the Tribunal is restricted to considering the evidence as it relates to the Qualification Period. The Tribunal is not satisfied that the fibromyalgia was fully treated and full stabilised during the Qualification Period, as such the Applicant’s impairment cannot be assessed against the Impairment Tables (being Table 1 – Functions requiring Physical Exertion and Stamina) and cannot satisfy s 94(1)(b) of the Act.
The Applicant’s eye condition was assigned a rating of 10 points, as a result, the Applicant does not satisfy s 94(1)(b) of the Act. As the Applicant’s eye condition does not attract an impairment rating of 20 points or more, it is not necessary for the Tribunal to consider whether the Applicant had a continuing inability to work under s 94(1)(c) of the Act.
DECISION
The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 16 April 2020, is affirmed.

I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

............[Sgd]............................................................
Associate
Dated: 7 December 2021

Date of hearing: 20 September 2021

Advocate for the Applicant: Ms C Eagle, Welfare Rights & Advocacy Service

Solicitors for the Respondent: Ms L Hinwood, Sparke Helmore Lawyers

[2021] AATA 4557

7 December 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	20 September 2021
Advocate for the Applicant:	Ms C Eagle, Welfare Rights & Advocacy Service
Solicitors for the Respondent:	Ms L Hinwood, Sparke Helmore Lawyers