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

Rumble and Secretary, Department of Social Services (Social services second review) [2020] AATA 3749 (24 September 2020)
Division:GENERAL DIVISION
File Number:2019/6951
Re:Damien Oliver Rumble
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:24 September 2020
Place:Perth

The Reviewable Decision, being the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 23 September 2019, is affirmed.
...............................[SGD]................................
Member S Barton
CATCHWORDS
DISABILITY SUPPORT PENSION – DSP – fully diagnosed – fully treated - fully stabilised- applicant does not meet impairment rating requirement – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1)(a), 94(1)(b), 94(1)(c)
Social Security (Administration) Act 1999 (Cth) – ss 41, 179, Schedule 2, cl 4
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 paras – 5, 6(1), 6(3), 6(4), 6(5), 6(6), 6(7)
REASONS FOR DECISION
Member S Barton
24 September 2020
BACKGROUND

This is a review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (the AAT1) dated 23 September 2019 (Reviewable decision) that affirmed a decision made by an Authorised Review Officer (ARO) of the Department of Human Services (the Agency), rejecting the Applicant’s claim for disability support pension (DSP) lodged on 3 May 2018.
FACTS
Mr Rumble (the Applicant) is a 46-year-old father of two sons. A boiler maker and welder, the Applicant injured his lower back in the course of his work in February 2012.
On 3 May 2018, the Applicant lodged a claim for the DSP, listing a number of conditions, which were as follows: chronic back pain, chronic right shoulder pain, obesity, testosterone deficiency, depression, and sleep apnoea.
On 23 October 2018, the Agency rejected the Applicant’s claim for the DSP. The Applicant sought a review and on 20 March 2019 an ARO from the Agency affirmed the decision.
The Applicant sought a review of the decision by AAT1 which affirmed the decision of the ARO on 23 September 2019. On 28 October 2019, the Applicant applied for a second review by the Tribunal.
JURISDICTION
The application for review is made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth) (Administration Act). Therefore, the Tribunal is satisfied that that it has jurisdiction to review the Reviewable decision.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 29 June 2020. The Applicant appeared via teleconference and was self-represented.
The Applicant gave oral evidence.
The Respondent was represented by Ms J Forsyth, who appeared via teleconference.
The Administrative Appeals Tribunal (Tribunal) admitted the following documents into evidence at the hearing:
(a)letter from Dr Susana Martin, psychologist, dated 14 February 2020 (Exhibit A1);
(b)centrelink information about participation in a program of support, signed
12 February 2020 (Exhibit A2)
(c)
assorted correspondence including: Centrelink Program of Medical Support signed 12 February 2020; letter from Dr Andrew Miles to Addolorato Notte 17 May 2018; letter from Dr Roger Goucke to Dr Notte dated 24 March 2018; and letter from

Dr Bu Yeap, endocrinologist, to Dr Notte dated 1 November 2017 (Exhibit A3)
(d)Respondent’s Statement of Facts, Issues and Contentions, received 30 March 2020 (Exhibit R1); and
(e)section 37 documents (T documents) numbered T1 to T39, comprising 259 pages, dated 26 November 2019 (Exhibit R2).
ISSUES
The issues before the Tribunal are whether, during the period 3 May 2018 and

2 August 2018 (see [12]-[16]), the Applicant had:
(a)a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Social Security Act 1991 (Cth) (the Act);
(b)an impairment rating of at least 20 points under the Impairment Tables; and
(c)a continuing inability to work for the purposes of s 94(1)(c) of the Act.
QUALIFYING PERIOD FOR THE DSP
The Administration Act states at s 41 that ‘…a social security payment becomes payable to a person on the person’s start day in relation to the social security payment’. The start date is determined by Schedule 2 of the Administration Act, which provides a general rule for a start day as the day on which a claim is made. However, clause 4, states:
(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.
The effect of this provision is to create a 13 week qualification (qualification period) period for the application. This window of time, and its subsequent effect, was described by
Gyles J in Harris v Secretary, Department of Employment and Workplace Relations
[2007] FCA 404 at [253]:
It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the

Social Security Administration Act 1999
(Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, ...and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time...
This judgement has been cited by Senior Member Isenberg in Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [8] and by Deputy President Handley in Fanning and Secretary, Department of Social Services [2014] AATA 447 at [31] when they considered applications for the DSP.
The effect of clause 4, as supported by previous decisions, is to restrict consideration of the Applicant’s claim to the 13 week time period after the claim was made and to consider evidence only in so far as it relates to the Applicant’s condition during that period. Therefore, as Member Breen observed in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.
The Tribunal, therefore, restricts its examination of the claim, and the various conditions cited therein, to the period from 3 May 2018 and the following 13 weeks until 2 August 2018.
QUALIFICATION CRITERIA FOR DSP
The qualification requirements for the DSP are set out in s 94 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..
These qualifications are conjunctive, they are linked not by ‘or’ but ‘and’, so a successful applicant for the DSP must meet each requirement. That is, they must have an impairment, it must be of 20 points or more under the impairment tables, and they must have a continuing inability to work.
Section 26(1) of the Act allows the Minister, by legislative instrument, to determine the Impairment Tables referred to in s 94(1)(b) and the rules for applying them.

The Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) provides those Tables and the rules for their use.
The purpose and general design principles of the Impairment Tables, found in the Determination, are set out in Paragraph 5. The tables are to be function based rather than diagnosis based and describe the functional activities, symptoms and limitations and assign ratings to determine the level of functional impact of the impairment on an applicant.
Paragraph 6(1) of the Determination 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, which is, for the purposes of the Tables, if it has been fully diagnosed by an appropriately qualified medical practitioner; it has been fully treated and stabilised; and it is more likely than not, in light of available evidence, to persist for more than two years.
It is important to note that an applicant for the DSP may have a range of serious health impairments, which may have been diagnosed by appropriate medical professionals,

but unless there is evidence that the conditions have been fully treated and stabilised,

the condition cannot be said to be permanent.
Paragraph 6(5) of the Determination states that when determining ‘whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated’ consideration must be given to the following:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment and rehabilitation has occurred; and
(c)whether treatment is continuing or is planned in the next two years.
Paragraph 6(6) states that a condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement enabling a person to undertake work in the next two years.
A condition is also deemed to be full stabilised if the person has not undertaken reasonable treatment for the condition and significant functional improvement enabling work is not expected in the next two years, even if the person undertook reasonable treatment.

Or, if there was a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment, defined in Paragraph 6(7), is treatment that:
(a)is available at a reasonably accessible location;
(b)is at a reasonable cost;
(c)can reliably be expected to result in substantial improvement in functional capacity;
(d)regularly undertaken or performed;
(e)high success rate; and
(f)carries a low risk to the person.
DOES THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
In his application for the DSP, the Applicant listed the following conditions (Exhibit R2,
p 190):
(a)chronic back pain;
(b)chronic (right hand side) shoulder pain;
(c)obesity;
(d)testosterone deficiency;
(e)depression; and
(f)sleep apnoea.
CHRONIC BACK PAIN
The Applicant’s chronic back pain has its origins in a workplace injury he experienced in February 2012 (Exhibit R2, p 118). The condition relating to his back condition has been detailed in several documents before the Tribunal, including the following the following correspondence:
(a)letter relating to an MRI scan of the Applicant’s lumbar spine between Dr Brad Davis and Dr William Barnes dated 28 February 2012 (Exhibit R2, p 109);
(b)letter from Dr Michael Beinart to Stephen Browne Personal Injury Lawyers,
dated 30 January 2014 (Exhibit R2, p 110-113);
(c)letter from neurosurgeon Dr Andrew Miles dated 17 May 2018 (Exhibit R2, p 197); and
(d)medical certificate provided by Dr Notte dated 13 November 2018 (Exhibit R2,
p 215).
As noted in the Applicant’s Job Capacity Assessment Report submitted 25 August 2015 (Exhibit R2, p 136), his Employment Services Assessment Report dated 29 August 2016 (Exhibit R2, p 148) and his Job Capacity Assessment Report dated 23 October 2018 (Exhibit R2, p 201), the Applicant has severe back pain due to L5/S1 disc prolapse and S1 nerve compression with bilateral leg pains as diagnosed by neurosurgeon Dr Andrew Miles.
Based on the information before it, the Tribunal finds that the Applicant’s chronic back pain was fully diagnosed. The Tribunal must now address what treatment(s) have occurred and what continuing treatment is planned.
On 13 April 218, the Applicant was referred back to Dr Miles. In the referral letter, the Apsley Medical Centre report states (Exhibit R2, p 179):
44yro with chronic back pain worsening since his workplace injury in 2012. He has been fully treated and stabilised in recent times and has [sic] seen by Pain team at FSH. He continues to suffer from severe functional disability despite treatment and is unable to return to work.
The report lists his daily medication as one naprosyn SR (slow release) 1000, 1,000mg tablet, one pregabalin 25mg capsule, and two tramadol 100mg modified release.
In correspondence dated 17 May 2018, Dr Miles states that (Exhibit R2, p 197):
As of my last report, 18 September 2013, I regarded [the Applicant’s] injury 2 February 2012 as permanent and fully diagnosed and fully investigated.
[The Applicant] can now be regarded as fully treated and stabilised.
[The Applicant’s] condition will persist for more than two years. His back condition will degenerate at a high rate.
The Apsley Medical Centre report and Dr Miles’ assessment are of limited assistance in understanding what treatment and rehabilitation has occurred.
In his DSP application, the Applicant has listed the following treatments: medication, heat packs, inverter and back aid and that the treatment was being provided by his general practitioner (GP), a neurosurgeon and a chronic pain clinic (Exhibit R2, p 191). During the hearing, when asked what treatment he had been receiving during the qualifying period, the Applicant stated:
Just taking my normal Tramadol, daily. Slow release at night time and immediate release during the days.
The Applicant contended there was no further treatment options available at that time.
None whatsoever. As advised by my GP, and like I said, there was no follow up by Dr Goucke. I doubt very much I’ll ever hear from him again, to be honest.
There is reference to some past treatment in the Job Capacity Assessment Report dated 23 October 2018, which lists physiotherapy, acupuncture, steroid injections and medication (Exhibit R2, p 201). During the hearing, the Applicant also noted that he had received a nerve block in the past. This treatment had previously proved effective for one year
(Exhibit R2, p 137 and 166). However, the Applicant had not actively pursued that option again, stating in the hearing that,
I was looking at avenues of what would be available as a public patient, after realising, yes, you’re not covered by Wesfarmers anymore, therefore, you actually realise how expensive these procedures really are
The Applicant further stated that, having considered advice from his general practitioner,
Dr Notte and ‘everyone else’s information’ regarding his discs and their condition,
he concluded that, ‘[h]aving a nerve block isn’t going to solve the problem over all three [discs]’.
When asked to refer to the evidence of Dr Notte’s advice, he said, ‘I doubt it very much would be in the documents. It wouldn’t be in the documents. That’s just conversation.’
Surgical intervention has also been recommended, but before this could be attempted the Applicant would need to have lost weight (Exhibit R2, p 201).
In the hearing, the Applicant stated that he did not think surgery was a viable option:
Basically, back in 2013 the conversations between myself and Dr Andrew Miles, my neurosurgeon, his option was basically to replace with titanium joints, which would come in at the cost of $75,000 each. And that was to replace L5, L4, L3. Which had never been performed before, as far as three go, three unions. So, basically that was the option. The weight side of it was not actually a fact, as far as being obese and hurting the spine further, the weight side of it was because of the operation [which] would be better done through the stomach, rather than through the back. So, the obese side of it has got nothing to do with the weight on the back.
During cross examination, when asked further about the proposed surgery, the Applicant stated that it ‘was not an option, it was just chucking it out there, he knew as well as I knew that…’
The Applicant attended a pain management clinic at Fiona Stanley Hospital.
In correspondence to the Applicant’s general practitioner dated 24 March 2018, Dr Notte, pain management consultant Dr Roger Goucke wrote (Exhibit R2, p 176):
I reviewed [the Applicant] today. He had been referred to us by the Neurosurgical Triage Team following further review of his long standing back pain. You recall his workers’ compensation case back around 2012 when he injured his back at work. He was reviewed in that system and saw Andrew Miles who appears to have suggested that either arthroplasty or fusion at 5/S1 would be appropriate but his morbid obesity precluded that surgery. He has had another review with the neurosurgeons at Fiona Stanley Hospital who do not think surgery at this stage would have anything to add and again noted his significantly high BMI.
Clearly there is a relationship between the Applicant’s back condition and his obesity.
The surgery may prove an effective intervention, that may improve functional capacity,
but it is not a viable option unless the Applicant loses a considerable degree of weight.
The Applicant’s inability to lose the required weight is a compelling reason that precludes him from further undertaking that reasonable treatment.
To treat the Applicant’s chronic back pain, Dr Goucke recommended trialling pregabalin at 25mg twice a day to start with, before increasing to 50mg twice a day if there were no side effects, and also restarting Tramadol 50 mg slow release twice a day, depending on advice from his endocrinologist after his next consultation (Exhibit R2, p 178). Dr Goucke sought to review the Applicant in four to six months.
During the hearing, the Applicant stated that:
I tried the dosage and it had no effect whatsoever, which is basically what he said. If you had no effect from it whatsoever and you don’t get sensation back in the side of your legs, then don’t worry about it. But if it does slightly work, then we might have to increase it. And that’s what he said to me….
The Applicant did not return to Dr Goucke for a review. The Tribunal notes the Applicant’s understanding of Dr Goucke advice differs from Dr Goucke’s letter. The Applicant did not report any side effects, instead he stated it had no effect and therefore stopped taking it. With the absence of side effects, based on the information available to the Tribunal,
it seemed open to the Applicant to increase the dosage from 50mg.
The Applicant stated during the hearing:
Now, after seeing Dr Goucke one time there’s never been another appointment made, there’s never been another catch up appointment. The pregabalin tablets did not alter anything as far as the nerve endings going down the side of my legs… And his suggestion was to go to the 50 milligrams. Now, being a pain specialist, as far as I’m concerned, the pain specialists don’t hold much more weight than a GP.
Their understandings of the medications are very, very similar. I was advised by
Dr Notte not to worry about the pregabalin, and just go back on the Tramadol..

There was no evidence before the Tribunal of Dr Notte offering this advice.
In his most recent Job Capacity Assessment Report, it was noted that (Exhibit R2, p 202):
Given that the impact of this condition on the client’s ability to function is expected to persist for more than 2 years and that the condition is optimally managed and that any further Specialist intervention or other treatment options are unlikely to significantly improve function over the next 2 years, the condition is regarded as fully diagnosed, fully treated and fully stabilised.
However, the Tribunal has limited evidence before it that his condition is being optimally managed. The Applicant has been offered a number of treatment options, most notably with the pregabalin, but he appears to conclude that they will not work before they have been adequately pursued or that he has received advice that they will not. The Tribunal notes Member Lewinsky’s observation in AAT1 (Exhibit R2, p 12), that:
Significant past treatment has been stated, although there is limited documentation and detail in relation to this. More specifically for the current matter, the tribunal considers there is limited basis indicated or stated for the pervasive and protracted symptoms, dysfunction and lack of any significant improvement or response to treatment.
It may well be the case that reasonable treatment does not improve the Applicant’s functional treatment, however, on the evidence available it is not open to the Tribunal to conclude that his back condition has been fully treated.
The Tribunal accepts that, for the purpose of s 94(1)(a) of the Act, the Applicant suffered from serious physical impairments relating to his back injury during the qualification period. The Tribunal notes this is not disputed by the Respondent and accepts that the Applicant meets the criteria of s 94(1)(a).
However, in order to assess the Applicant’s impairment against the relevant Impairment Tables, the Tribunal must, in accordance with paragraph 6(3) of the Determination,

be satisfied the condition is permanent and will persist for more than two years. As detailed in paragraph 6(4) of the Determination, a condition is permanent if 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. While the first of these has been met, the Tribunal finds that his back injury is not fully treated or stabilised.
CHRONIC SHOULDER PAIN
The Applicant reportedly injured his shoulder in a fall at home in or around March 2013, when his leg gave way, due to his existing back injury (Exhibit R2, p 111). In assessment prepared for his personal injury lawyers, Dr Michael Beinart wrote (Exhibit R2, p111):
By his history his right shoulder injury occurred when his injured left leg gave way causing him to fall, wrenching his right shoulder. This is consistent with the development of subacromial bursitis in his right shoulder. As he currently presents he has significant restriction in range of movement of that dominant right shoulder but with treatment this is expected to improve.
When asked about his shoulder during the hearing, the Applicant stated:
As far as the shoulder injury goes, I don’t know how I’ll ever get in to see a specialist at Fiona Stanley to get it operated on. I’d imagine I’ll be in a list for [a] long, long, long, long time… I’ve got and have injections in both shoulders, as the left shoulder’s just as bad as the right one now.
The Applicant also stated that he had a recent fall, which injured his left shoulder and mentioned that there had been a recent diagnosis of osteoporosis. The subsequent injury to his left shoulder and the diagnosis fall outside the qualifying period.
There is no evidence before the Tribunal to support a conclusion that the chronic pain in his right shoulder was fully diagnosed, fully treated, fully stabilised during the qualifying period.
OBESITY
The Applicant told the hearing that he was a ‘big boned person’ and always large.

Following the injury to his back and its restrictions on his movement, he grew ‘heavier and heavier and heavier...not being able to move, not being able to do anything at all’.
On 6 May 2016, dietician Ms Belinda Lean, wrote to the Applicant’s general practitioner,

Dr Notte, stating that the Applicant had improved awareness of dietary intake and that his weight in March was 151.8 kg, 152.4 kg in April and 151.2 kg in May (Exhibit R2, p 144).
In August 2017, the Applicant consulted sleep physician, Dr D Hillman, who recorded a weight of 156.6 kgs and that his weight had peaked at 172 kg eighteen months earlier (Exhibit R2, p 154). He is unlikely to have reached this weight in the month preceding his assessment by Ms Lean, where he weighed 151.8 kg.
On 1 November 2017, endocrinologist Dr Bu Yeap, recorded his weight as 155kg

(Exhibit A3). In his consultation with Dr Goucke on 24 March 2018, it was noted that he weighed 156kg, but had previously weighed up to 180kg (Exhibit R2, p 176-177). Dr Goucke also stated (Exhibit R2, p 177):
It might be well worth exploring bariatric surgery referral, this is currently done at SCGH and Joondalup Health Campus and I understand they have a quota of public patients. I will leave this to you and him if you both think that’s worth exploring.
On 23 October 2018, the Job Capacity Assessment Report noted that the Applicant had been advised by his GP that bariatric surgery may be ineffective because he has no gall bladder, has low testosterone and chronic back pain (Exhibit R2, p 204).
During the hearing, the Applicant stated that:
I did discuss it with Dr Notte, and he basically referred and said “Well, that would be up to you”. There’s only place in Perth that does it, and that’s Joondalup Medical Campus. After conveying and speaking with Joondalup Medical Campus that I would not be applicable for it…Just a phone call that I rang them and said, “Look what’s the story, I’ve been told that you might be able to do this…”, and I gave them a quick rundown and they said, “Look, you’d [be] doing extremely, extremely well” because there’s only one bloke in Perth that does it on public and that’s Joondalup Health Campus. It’s backdated up to about eight years.
When asked if he had any material to support this, the Applicant stated:
No, because you’re never going to get in there and like said before, as far as the weight goes, I did look into it thinking, “Maybe it probably wouldn’t hurt to lose more weight, as far as health-wise goes”, but as far as the back and all that goes, like I’ve explained before, the weight’s got nothing to do with the back or anything of the sort.
The Applicant advised the Tribunal that he currently weighed 130 kg after attending six sessions of ‘diet by design’. However, he stated that he was informed by a doctor at

Fiona Stanley Hospital that ‘it’s very hard to lose weight without a man having testosterone in his body.’
The Tribunal accepts that the Applicant’s obesity was fully diagnosed during the qualifying period. However, it is not clear that the condition was fully treated or fully stabilised. As the Respondent contends (Exhibit R1, p 12):
… in the absence of corroborating evidence that bariatric surgery was explored as recommended by Dr Goucke or that surgery will be “ineffective” (as self-reported by the Applicant), the condition cannot be considered fully treated and fully stabilised.
It may well be the case that the surgery may not have been appropriate or effective, however, there is no material before the Tribunal to support this conclusion. Therefore, the Tribunal finds this condition was not fully treated or fully stabilised and cannot ascribe any impairment ratings for this condition.
TESTOSTERONE DEFICIENCY
The Applicant consulted endocrinologist, Dr Yeap, on 1 November 2017, who found he had low testosterone in the setting of being overweight and opioid use (Exhibit A3). Dr Yeap stated:
I suspect his low testosterone is related to the degree of central adiposity and the use of tramadol. Both of these will suppress the endogenous hypothalamic pituitary gonadal axis… We will check his free thyroxine and I will organise early morning fasting testosterone with mass spectrometry for confirmation. [The Applicant] is very keen that we look at all possible diagnoses and I have therefore organised a pituitary MRI to exclude any significant lesion. If we are postulating hypogonadotropic hypogonadism, then this would need to be from something like a pituitary macroadenoma distorting normal function… I have urged [the Applicant] to allow us to do a full evaluation and then counsel him on options appropriately following this.
There is no evidence before the Tribunal that this condition has been fully diagnosed,

in accordance with Dr Yeap’s proposed evaluation, or that it has been fully treated or fully stabilised.
DEPRESSION
On 14 May 2016, Dr Susana Martin, a clinical psychologist, advised the Applicant’s general practitioner that (Exhibit R2, p 145):
…[the Applicant] reported symptoms consistent with depression, as manifest by low motivation, feelings of hopelessness, labile mood, irritability and frustration, and some difficult with sleep. These symptoms appear to have been precipitated by a four-year history of chronic pain following a workplace injury, but have been escalated since the death of his sister to cancer earlier this year.
On 12 February 2020, Dr Martin provided a statement as part of the Applicant’s application for the DSP (Exhibit A1, p 1). Dr Martin stated that his conditions were ‘consistent with Major Depression’ and that treatment has been ongoing ‘CBT and other psychological interventions.’
During cross examination, the Applicant was asked by the representative for the Respondent if there was any evidence that Dr Martin confirmed or made a full diagnosis of major depression and whether she had discussed that with the Applicant or if he could point to any material to confirm that was the case, to which he answered, ‘No, that’s the only- the only input are the two letters that she supplied.’
The Applicant’s Job Capacity Assessment Report, dated 23 October 2018, stated that (Exhibit R2, p 205):
The client reported that he does not take medication and that he stopped psychological counselling in July which he is hoping to resume later in the year.
In his evidence at the hearing, the Applicant stated, ‘There’s always going to be mental health issues with the situation I’m in.’
Given the limited evidence before the Tribunal of the Applicant’s treatment of his mental health condition, it is not open to conclude that this condition is fully diagnosed, full treated and fully stabilised.
SLEEP APNOEA
On 21 September 2017, sleep physician Dr Hillman wrote to the Applicant’s general practitioner, confirming ‘presence of severe obstructive sleep apnoea’ (Exhibit R2, p 157). Dr Hillman continued:
I have since had the opportunity to discuss these results with [the Applicant] and we have decided to now proceed to a trial of CPAP [Continuous Positive Airway Pressure] therapy. He was prepared for this, and has access to his late father’s relatively recently purchased CPAP equipment. If he completes his trial of therapy successfully, then we will arrange for adjustment of this equipment for his future need. We will keep you informed of his progress.
In his evidence at the hearing, the Applicant stated that he did not return to see Dr Hillman, ‘No, you can pretty much get the same information from any chemist that has CPAPs.’

He stated that he eventually got hold of his late father’s CPAP equipment, however,
…to be honest, I really don’t think it makes of lot of difference and I do believe that Dr Hillman was just trying to sell me a CPAP machine… I use it, but I don’t really think that it makes a lot of difference.
There is no further evidence before the Tribunal, so it is not open to the Tribunal to find this condition is fully diagnosed, fully treated or fully stabilised.
CONCLUSION
The Reviewable Decision, being the decision of the AAT1 dated 23 September 2019,
is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

..................................[SGD]..................................
Associate
Dated: 24 September 2020

Date of hearing:

29 June 2020

Applicant:

Counsel for the Respondent:

Self-represented

Ms J Forsyth

Solicitor for the Respondent: Mills Oakley

[2020] AATA 3749

24 September 2020

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Appeal