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

Sanders and Secretary, Department of Social Services (Social services second review) [2020] AATA 3440 (4 September 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7248
Re:David Sanders
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, AM LVO (Retd), Member
Date:4 September 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 Act 1991 (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 – Tables 2, 4, and 5
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher and Secretary, Department of Social Services [2015] FCA 1123
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
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
4 September 2020
INTRODUCTION

Mr Sanders seeks review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 11 October 2019 which affirmed a decision to reject Mr Sanders’ claim for disability support pension (DSP) lodged on 23 February 2018 (T1).
The hearing was conducted by telephone conference.
Mr Sanders was supported by Ms Dzivi Chirenda, an individual advocate from Explorability Inc, and Mr Sanders gave evidence on affirmation.
Ms D Jones-Bolla of Sparke Helmore Lawyers represented the Respondent.
BACKGROUND
Mr Sanders was born in April 1967, and was involved in a truck accident on 20 March 2015.
On 23 February 2018, Mr Sanders contacted Services Australia (the Agency) regarding a claim for DSP (T18/198 and T40/262).
On 8 March 2018 (T40/264 and 266), Mr Sanders lodged a claim for DSP with the Agency which listed his medical conditions as “chronic pain, memory/concentration, hearing seems to have worsen [sic], eyesight seems to worsen, can’t stand in one place to [sic] long, always tired, 33% whole body impaired only getting worse, unable to get chronic pain even medicated under wraps. Forgets even after 1 hour of completing a task (events)” (T17/191).
On 29 May 2018, Mr Sanders was assessed by a Job Capacity Assessor (JCA) who produced a report dated 18 July 2018 (T21) containing the following findings:
(a)The neck disorder was fully diagnosed, treated and stabilised (FDTS) (T21/204) and rated 10 impairment points under Table 4 – Spinal Function (T21/208);
(b)The shoulder and upper arm disorder was FDTS (T21/205) and rated 0 points under Table 2 – Upper Limb Function (T21/208);
(c)The attention deficit and hyperactivity disorder (ADHD) was not FDTS (T21/206);
(d)The lower limb condition was fully diagnosed but not fully treated and stabilised (T21/206);
(e)The diagnosis and prognosis of the nervous system condition was unclear and therefore the condition was temporary (T21/207); and
(f)Mr Sanders had a work capacity of between 15 to 22 hours per week within two years with intervention (T21/209).
On 19 July 2018, Mr Sanders’ claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables (T22/213).
The rejection decision was affirmed by an authorised review officer (ARO) on 25 July 2019, with the ARO making findings consistent with the recommendation by the JCA (T33).
Mr Sanders applied for review to the AAT1 and on 11 October 2019, that tribunal affirmed the decision under review (T2). The AAT1 made the following findings:
(a) The neck disorder was FDTS and rated 10 points under Table 4 – Spinal Function (T2/8);
(b) The shoulder and upper arm disorder was FDTS and rated 5 points under
Table 2 – Upper Limb Function (T2/9-10);
(c) The lower limb condition was not FDTS (T2/10);
(d) The ADHD and depression conditions were FDTS and rated 10 points under
Table 5 – Mental Health Function (T2/12); and
(e) Mr Sanders did not have a continuing inability to work (CITW) (T2/15).
On 7 November 2019, Mr Sanders lodged an application for review of the AAT1 decision with this Tribunal (T1). Mr Sanders claimed the AAT1 decision was wrong because:
THE ISSUE NOW BEING THAT SAID BY CENTRELINK (25 POINTS IMPAIRMENT RATING) THAT I DID NOT PARTICIPATE IN A PROGRAM OF SUPPORT ..…IS NOT CORRECT OR TRUE I HAD BEEN PARTICIPATING IN A PROGRAM WHEN I MADE PRIOR TO A CLAIM FOR DSP BUT I WAS UNABLE TO IMPROVE MY WORK CAPACITY THROUGH CONTINUED PARTICIPATION IN A PROGRAM SOLELY DUE TO MY IMPAIRMENTS………ON THE 20/3/2015 I WAS IN A TRUCK ROLLOVER ( BROKIN [sic] COLLARBONE ,C/5 [sic] 3.5 MM DISC PROTRUSION ) [sic] FROM 0900 THAT DAY I HAVE BEEN UNABLE TO WORK IN ANY CAPCITY AND WAS SUPPORTED BY WORKERS COMPENSION INSURANCE COMPANY ZURICH .…FROM 20/3/2015 TILL SEPTEMBER 2017 IN THAT TIME I HAD 2 OPERATIONS FOLLOWED BY EXTENSIVE PHYSIO,GYM,PSYCHOLOGICAL [sic] AND MANAGED BY THE RECOVERY GROUP FOR WORK HARDENING AND 3 DIFFERENT TIMED AND PLACED IN WORK TRAILS [sic] DOING 3 DAYS OF 4 HOUR DAYS. AFTER WHICH WAS DEAMED [sic] UNFIT TO WORK AND STILL TO THIS DAY NOW BEING SUPPORTED BY MEDICARE FUNDED PAIN CLINIC AND MY GP [sic]
.I TRULY DO NOT KNOW WHERE TO GO FROM HERE AS I HAVE ALSO BEEN JUST GRANTED A TOTAL AND PERMANENT DISABILITY INSURANCE PAYOUT [sic]. BUT STILL SAID NOT TO QUALIFY FOR DISABILITY PAYMENTS.
THIS SIMPLY NEEDS TO BE LOOKED AT THAT MY TIME ON WORKERS COMP IS THE SAME AS A PROGRAM OF SUPPORT WHICH IS EXACTLY THE SAME THING…
(T1/4) (Original emphasis.)
ISSUE
The Tribunal must decide whether Mr Sanders was qualified for DSP at the date his claim was lodged on 23 February 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) are met, in particular, whether Mr Sanders had:
(a)a physical, intellectual or psychiatric impairment(s); and
(b)condition(s) that are FDTS 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 Impairment Tables); and
(c)a CITW.
LEGISLATION
The relevant legislation is contained in the Act; the Social Security (Administration) Act 1999 (Cth) (the Administration Act); the Tables; and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The relevant policy is contained in the Guide 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, 644-645).
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 22 April 2020 (Exhibit R1, paras 5.9 to 5.20). Section 94 of the Act sets out the first requirement 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.
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 stabilised and must be more likely than not to last for more than two years
(s 6(4) of the Impairment Tables).
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
The Tribunal had before it the following evidence:
·the ‘T Documents’ (T1-T40, pp 1-277);
·Email dated 17 March 2020 attaching a Medical Certificate dated 28 February 2020 and Centrelink Medical Report dated 1 March 2018 (Exhibit A1);
·Clinical Neuropsychology Assessment Summary dated 17 February 2020
(Exhibit A2);
·Letter from Dr Stephanie Tang dated 1 May 2020 (Exhibit A3);
·Letter from Dr Sam Bowden dated 14 May 2020 (Exhibit A4);
·Letter from Dr Haroon Riaz dated 22 January 2020 (Exhibit A5);
·Secretary’s Statement of Issues, Facts and Contentions dated
22 April 2020 (Exhibit R1); and
·the oral evidence of the Applicant.
CONSIDERATION
Qualification period
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 Sanders’ circumstances, the qualification period is 23 February 2018 to 25 May 2018
(the qualification period).
In the case of Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the AAT stated (at [34]):
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. 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. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley made the following observation at [31]:
In my view, in the case of DSP, it is implicit in clause 4 of Schedule 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.
In Gallacher and Secretary, Department of Social Services [2015] FCA 1123, [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.
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.
Assessment of impairments under the Impairment Tables
The Respondent accepts, and the medical evidence is that Mr Sanders had impairments and that s 94(1)(a) of the Act was satisfied during the qualification period. The Respondent submits that Mr Sanders’ impairments did not attract 20 points or more under the Impairment Tables (Exhibit R1, para 5.22). This review is de novo, and the Tribunal’s consideration of Mr Sanders’ impairments is detailed below.
Cervical spine condition
The Respondent accepts that the cervical spine condition was FDTS (Exhibit R1, para 5.23), and submits that the condition results in a moderate impairment rating of 10 points under Table 4 – Spinal Function (Exhibit R1, para 5.26).
In its consideration of this condition the Tribunal has regard to the following:
(a)On 18 January 2017, Dr Evan Jenkins conducted an assessment of Mr Sanders’ degree of permanent impairment and produced a report (T10). Dr Jenkins reported that following the truck accident on 20 March 2015 a CT of the neck revealed a cervical bulge at C5/C6 impinging on the C6 nerve root (T10/139). Dr Jenkins recorded that Mr Sanders underwent specialist review with neurosurgeons –
Mr George Wong and Mr Bala, and on 19 March 2016 underwent a cervical fusion at the level of C5/6 with the insertion of a metal cage device (T10/140). He recorded that Mr Sanders has also used Norspan patches and analgesics to reduce his neck pain (T10/142).
(b)Subsequent to his physical examination of Mr Sanders on 18 January 2017,
Dr Jenkins reported “There was an asymmetrical and mild restriction of cervical motion” (T10/143). Dr Jenkins stated that Mr Sanders enjoys riding his
Harley-Davidson motorcycle, and previously enjoyed working on his classic cars and utility but his capacity for this is greatly restricted and that “underneath the cars he is very slow”. Dr Jenkins also reported that Mr Sanders had no particular problem with self-care, could do the kitchen and the dishes, but was unable to lift multiple bags of shopping as he previously did (T10/142).
(c)In a report dated 2 April 2017, Dr John Thomas, clinical psychologist, reported that Mr Sanders: “gains a sense of achievement from completion of jobs, particularly tinkering with his car” (T12/155).
(d)The JCA records in the report dated 18 July 2018 that Mr Sanders reported that he was able to drive his car, and that “No restriction with sitting or driving was reported by client or noted in the medical evidence”. The JCA reported that Mr Sanders could do the dishes but experiences pain in the neck and shoulders and headaches when looking up or down with sustained neck postures (T21/204 and 208). The JCA found this condition to be FDTS (T21/204), concluded that there was a moderate functional impact on activities involving spinal function and recommended an impairment rating of 10 points under Table 4 – Spinal Function (T21/208).
(e)Lara Bertolino, clinical psychologist, noted in a report dated 28 May 2019 that that during his assessment the previous day, Mr Sanders “was casually dressed, with a Harley Davidson jacket, having biked to the hospital” (T29/227).
(f)The AAT1 decision of 11 October 2019 records that Mr Sanders can turn his head and look to the side but develops a headache within five to 10 minutes, that he has some difficulty with overhead activities, and is able to bend forward to pick up an object (T2/8).
Mr Sanders told the Tribunal that he had to turn his whole body to check his blind spot when driving, but this is not corroborated by the medical evidence, and indeed Mr Sanders evidence before the AAT1. The evidence is that Mr Sanders satisfies descriptor (10)(b) for a moderate functional impact – “the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder)” (T3/48). The Tribunal is satisfied that there is no corroborative medical evidence that Mr Sanders meets the requirements for a severe functional impact under Table 4, and so assigns his cervical spine condition an impairment rating of 10 points.
Upper limb/shoulder condition
The Respondent accepts that Mr Sanders’ shoulder condition was FDTS (Exhibit R1,
para 5.29), and submits that the condition does not rate higher than five impairment points under Table 2 – Upper Limb Function (Exhibit R1, para 5.34).
In the report dated 18 January 2017 (paragraph [26(a)] and [(b)] above refers), Dr Jenkins reported that an MRI of Mr Sanders shoulder revealed a labral tear on the right (T10/139) and subsequent x-rays revealed a non-union of his right clavicular fracture (T10/140).
Dr Jenkins recorded that Mr Sanders had physiotherapy and hydrotherapy with resulting improvement of his condition (T10/140), and that on 7 October 2015, Dr Paul Khoo, orthopaedic surgeon, performed an open reduction and internal fixation of his right clavicle fracture with insertion of a plate and eight screws (T10/140). Dr Jenkins also states that
Mr Sanders underwent two nerve conduction studies to his right upper limb, performed by Dr Wally Knezevic, neurologist, and notes that “the results were reportedly “perfect”, excluding significant peripheral neuropathy” (T10/140).
On the basis of Dr Jenkins’ report, the Tribunal finds that this condition was FDTS at the qualification period, and that the appropriate Impairment Table to assess functional impact is Table 2 – Upper Limb Function. In its consideration of the functional impact of this condition the Tribunal has regard to the following:
(a)In the 18 January 2017 report previously cited, Dr Jenkins reported that Mr Sanders had difficulty closing his fist fully, that his right hand has been weak and clumsy,
that his grip is weak and he drops things often including coffee cups, glasses, food containers and keys (T10/139 and 141). Dr Jenkins also reported that Mr Sanders has difficulty with fine manipulation of objects (T10/141).
(b)Dr Jenkins’ evidence detailed in paragraph [26(b)] above is also relevant to the consideration of this upper limb condition.
(c)The JCA report dated 18 July 2018 records that Mr Sanders reported pain in his arm and hand, numbness in his fingers when using a computer and reduced grip strength resulting in frequently dropping things (T21/204). The JCA assessed that
Mr Sanders “can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty” (T21/208). The JCA concluded that there was no functional impact on activities using hands or arms, and recommended zero impairment points under Table 2.
(d)Mr Sanders told the AAT1 that he had some difficulty with overhead activities,
could use a trolley when shopping, pour liquid from a milk or juice carton and use a scissors to open a wrapper (T2/9). He confirmed this evidence during the present proceedings (Transcript p17 and p18).
The Tribunal is satisfied that there is sufficient evidence that the functional impact of this condition meets the Table 2 – Upper Limb Function descriptors for mild impact under the Impairment Tables, and assigns 5 impairment points. The Tribunal is also satisfied that
Mr Sanders does not meet any of the descriptors for a severe functional impairment (T3/43).

Bilateral hip osteoarthritis

The Respondent submits that Mr Sanders’ bilateral hip osteoarthritis condition was fully diagnosed but not fully treated and stabilised (Exhibit R1, para 5.71).
In its consideration of this condition, the Tribunal has regard to the following:
(a)In a report dated 9 November 2016 (T9/135), Dr Chris Jones, an orthopaedics fellow, provided a diagnosis of “bilateral hip osteoarthritis with femoral acetabular impingement”. Dr Jones recorded that “he is very comfortable, walks without a limp and is able to do the majority of his activities of daily living”. Dr Jones also noted that Mr Sanders reported that he had been booked for a right hip replacement previously and had made it to theatre before cancelling.
(b)On 17 January 2018, five weeks before Mr Sanders lodged his DSP claim,
Dr Rogers, orthopaedic registrar, reported that he was going to examine Mr Sanders in one year and that he was “actually mobilising really well” (T15/159).
(c)In a letter dated 25 July 2018, Dr J Tate, geriatrician, reported that Mr Sanders will be having bilateral hip injections for his osteoarthritis (T23/215).
(d)Mr Sanders told the AAT1 that he had a further review in November 2019 planned and a hip replacement or resurfacing was likely to be discussed as a treatment option(T2/10). Mr Sanders told this Tribunal that his hips “are getting replaced;
when I don’t know” (Transcript p22).
The Tribunal is satisfied that at the qualification period, Mr Sanders’ bilateral hip osteoarthritis was fully diagnosed. However, in circumstances where further treatment and specialist review to discuss further treatment options were planned outside the qualification period, the condition cannot be considered to be fully treated and stabilised at the qualification period. It follows that the functional impact of this condition cannot be assessed under the impairment Tables.

Cognitive and psychological conditions
The Respondent submits that Mr Sanders has “multiple overlapping co-morbidities including, an undiagnosed cognitive condition, cannabis use (T28/224 and 228), use of amphetamines (T29/228), alcohol consumption of 3 to 4 drinks per night (T29/228), ADHD, depression and anxiety” (Exhibit R1, para 5.38). The Respondent does not concede that any of Mr Sanders’ cognitive and psychological conditions were permanent as at the qualification period (Exhibit R1, para 5.35).
Mr Sanders told the Tribunal that he did not have 20 points “because nobody’s looked straight at my brain” (Transcript p9). Mr Sanders said that he looks and sounds fine to anyone meeting him in the street, but he was not normal (Transcript p23). He said that prior to his accident he was a “functioning ADHD dude” but the accident and light brain damage had made his ADHD worse (Transcript p10). Mr Sanders said that he was fighting depression every day (Transcript p25), that he was no longer a good decision-maker,
and could not remember things (Transcript p27).
The Tribunal notes that only functional impairment resulting from a permanent condition – that is a condition which was FDTS and more likely than not, in light of available evidence, to persist for more than two years – can be assessed under the Impairment Tables and any impact from non-permanent conditions cannot be assessed.
Cognitive condition
The Respondent submits that any cognitive condition was not FDTS at the qualification period (Exhibit R1, para 5.40). In its consideration of this condition, the Tribunal has regard to the following:
(a)In a report dated 4 March 2017, Dr Tate noted that an MRI brain scan had been performed and was completely unremarkable. He reported that Mr Sanders’ cognitive complaints do not appear consistent with a neurodegenerative disorder and that the symptoms are more likely due to side effects from his medications (T11/154). Dr Tate stated that during his review of Mr Sanders he explained that excessive alcohol consumption can affect memory and recommended that Mr Sanders cut down his alcohol consumption to safe drinking levels (T11/153).
(b)On 30 May 2018, just outside the qualification period, Dr S Bowden,
general practitioner, referred Mr Sanders to Armadale Kelmscott Hospital in respect of his issues with short term memory loss. Dr Bowden noted that Mr Sanders was on far less medication but his symptoms were persisting and he was unsure of the cause. Dr Bowden stated: “I would appreciate your opinion and management of this problem” (T20/202).
(c)On 29 March 2019 and 5 April 2019, approximately one year after Mr Sanders lodged his DSP claim, Michelle Karangoda, clinical psychologist conducted a baseline cognitive assessment to ascertain Mr Sanders’ current cognitive function, and produced a report (T28). Ms Karangoda referred Mr Sanders to the Neurosciences Unit for a more comprehensive neuropsychological assessment to determine the nature of his memory issues and recommended a psychiatric review of his current medications (T28/226). Ms Karangoda also opined that Mr Sanders memory concerns may be compounded by mood disturbances and lifestyle factors such as cannabis use and daily alcohol intake (T28/226).
(d)On 28 November 2019, 11 December 2019 and 14 January 2020, more than
18 months after the end of the qualification period, Mr Sanders underwent a clinical neuropsychology assessment. In the subsequent report dated 17 February 2020,
Dr CM Hargate recommended behavioural therapy or other appropriate therapeutic modality to help manage his challenging behaviours, improve his prospects for a return to work and support his relationship with his wife (Exhibit A2, p5).
The Tribunal is satisfied that the medical evidence shows that at the qualification period,
Mr Sanders’ cognitive condition was not FDTS. It follows that any functional impairment cannot be rated under the Impairment Tables.

Attention deficit hyperactivity disorder (ADHD)
The Respondent accepts that Mr Sanders’ ADHD condition was fully diagnosed
(Exhibit R1, para 5.47). In its consideration of this condition, the Tribunal has regard to the following:
(a)On 11 January 2018, Dr H Riaz, consultant psychiatrist reported that
Mr Sanders continues to take dexamphetamine for his ADHD and that he presented as “well and stable from a mental health point of view” (T14/158). In a further report dated 23 September 2019, Dr Riaz reported that
Mr Sanders had been a patient of his clinic since 2014 and was diagnosed with ADHD prior to March 2018 (T36/243).
(b)On 16 January 2019, Dr Bowden recorded ADHD as a condition which significantly impacts Mr Sanders’ capacity to work or study, and that he was on dexamphetamine treatment for it (T26/221).
(c)On 18 April 2019, approximately 11 months after the end of the qualification period, Ms Karangoda recommended that Mr Sanders consult with his psychiatrist for review of his current dexamphetamine dosage as he had reported experiencing reduced effectiveness of the current dosage (T28/224)
(d)In his report dated 18 January 2017, Dr Jenkins described Mr Sanders as a truck driver “of more than 24 years’ experience” and “reportedly fit and well prior to a work-related truck accident” which occurred in March 2015 (T10/139).
(e)In the clinical neuropsychology report dated 17 February 2020, Dr Hargate recorded that Mr Sanders reported that his dexamphetamine is especially beneficial noting that it allows him “to function and feel comfortable”
(Exhibit A2, p2).
(f)The JCA found on 18 July 2018 that this condition could not be considered FDTS as the diagnosis was not confirmed at that time and there was no evidence regarding further specialist review or ongoing treatments (T21/206). In the decision dated 25 July 2019, the ARO advised that ADHD had not been diagnosed for DSP purposes at the time of claim and had not been included in the ARO’s assessment of the claim (T33/235).
The evidence is that Mr Sanders was referred for a change in medication dosage a year after his DSP claim was lodged, and that he subsequently reported that his medication allows him to function. There is limited corroborative evidence of functional impairment resulting from Mr Sanders’ ADHD condition, noting that when prescribed the appropriate level of medication he worked full-time as a truck driver. Having carefully considered the available material, the Tribunal concludes that this condition was fully diagnosed but not fully treated and stabilised at the qualification period. Consequently, any functional impairment cannot be assessed under the Impairment Tables.
Psychological conditions
The Respondent accepts that Mr Sanders’ depression condition was fully diagnosed but not fully treated and stabilised (Exhibit R1, para 5.57). On the basis of the report by Dr Riaz dated 23 September 2019, that Mr Sanders had been a patient of his clinic since 2014 and was diagnosed with depression prior to March 2018 (T36/243), the Tribunal agrees that the depression condition is fully diagnosed.
In a medical certificate dated 25 June 2019, Dr Bowden recorded the condition of chronic anxiety and described it as a “Temporary exacerbation of a permanent condition” (T32/232). He recorded the condition similarly in a further certificate dated 27 November 2019 with a prognosis of three to 12 months (T37/244). On 18 April 2019, Ms Karangoda reported that Mr Sanders “presented with symptoms consistent with depression and anxiety” (T28/224). In the Tribunal’s view, Ms Karangoda’s report does not provide a diagnosis, rather an observation of Mr Sanders’ symptoms on the days he presented for cognitive assessment.
On 16 January 2019, Dr Bowden reported that Mr Sanders suffers from PTSD (T26/221).
The Introduction to Table 5 – Mental Health Function of the Impairment Tables states:
“the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist
(if the diagnosis has not been made by a psychiatrist)” (T3/49). The conditions of chronic anxiety and PTSD do not satisfy the diagnosis requirement prescribed in Table 5 and consequently cannot be considered fully diagnosed.
In its consideration of Mr Sanders’ depression condition, the Tribunal has regard to the following:
(a) On 18 January 2017, Dr Jenkins reported that Mr Sanders suffered from major depressive disorder since early 2015 and was continuing on Lovan medication (T10/143).
(b) On 11 February 2018, Dr Riaz reported that Mr Sanders takes Lovan and is reviewed on a three-monthly basis (T14/158). On 11 February 2019, Dr Riaz reported that Mr Sanders “has gone through rehabilitation”, but provides no details regarding the nature of the rehabilitation or when it was undertaken (T27/222). Dr Riaz does not mention conditions of chronic anxiety or PTSD in these reports.
(c) On 25 July 2018, Dr Tate recommended clinical psychiatry review (T23/217).
(d) In her report dated 8 April 2019, more than a year after Mr Sanders lodged his claim for DSP, Ms Karangoda noted that Mr Sanders’ mood screening conducted on 2 November 2018 indicated the presence of severe depression. Ms Karangoda stated: “Whilst strategies were discussed to increase
David’s engagement in enjoyable and meaningful activities with the aim of improving his mood, David had difficulty following through on the implementation of strategies and little therapeutic focus was obtained”. Ms Karangoda also recommended a psychiatric review of Mr Sanders’ medications (T28/226).
(e) On 28 May 2019, a year after the end of the qualification period, Ms Bertolino, recommended that Mr Sanders to his general practitioner about arranging a mental health care plan (T29/228).
(f) In the medical certificate dated 25 June 2019 (paragraph [43] above refers),
Dr Bowden reported a chronic anxiety condition and that further treatment of medication and counselling was planned (T32/232).
(g) In a statement dated 23 September 2019, Dr Riaz refers to Mr Sanders’ depression and ADHD and reports that Mr Sanders is reviewed every three months and is “Currently stable and compliant with treatment” (T36/243).
(h) 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 5.59 and 5.60).
(Emphasis omitted.)
As the clinical practice guideline cited above has been developed for the management of mood disorders and is based on scientific evidence supplemented by expert clinical consensus, and its relevance to the present matter is not disputed, the Tribunal accepts the Respondent’s submission that the recommended treatment is reasonable in Mr Sanders’ circumstances. However, there is insufficient evidence that such treatment had occurred as at the qualification period.
Having regard to the evidence, the Tribunal accepts the Respondent’s submission that
Mr Sanders’ engagement with clinical psychologists was in the context of a pain management program and his cognitive condition and not in respect of his psychological condition. This is because:
(a)On 2 April 2017, Dr Thomas, clinical psychologist reported that Mr Sanders attended four sessions for psychological treatment for pain and dysfunction, with the treatment “focused on getting David to pace his activity throughout the day, to avoid too much or too little movement” and introducing strategies for pain management (T12/155);
(b)On 18 April 2019, Ms Karangoda reported that Mr Sanders was referred for a baseline cognitive assessment to ascertain his current cognitive function (T28/223); and
(c)On 28 May 2019, Ms Bertolino reported that Mr Sanders self-referred after attending a multidisciplinary one-day Pain Education Program in respect of the pain he experienced (T29/227). Ms Bertolini also reported that she had referred
Mr Sanders to the pain management psychiatrist for a medication review (T29/229).
In a short report dated 22 January 2020, Dr Riaz stated that at the time of his application for DSP, Mr Sanders was on regular medication for depression and ADHD and that he
“is unable to function/work in the foreseeable future” (Exhibit A5). However, it is not evident why Dr Riaz thought him unable to function/work despite medication. Nor is it clear whether Dr Riaz had trialled alternative medications and whether his opinion regarding Mr Sanders ability to function/work applied at the qualification period. Weighing against the information contained in the report by Dr Riaz is the evidence that Mr Sanders’ treating practitioners were referring him for assessment and treatment related to his psychological conditions outside the qualification period. Further, the Tribunal considers that pharmacotherapy and psychotherapy is reasonable treatment particularly in circumstances where
Lovan medication has not demonstrated improvement
Having carefully considered and weighed the material relevant to Mr Sanders’ psychological conditions, the Tribunal finds that as at the qualification period, these conditions were not fully treated and stabilised, and therefore cannot be rated under the Impairment Tables.
Overall impairment rating
The Tribunal finds that Mr Sanders’ cervical spine condition attracts 10 impairment points under Table 4, and his upper limb/shoulder condition Secretary attracts 5 points under
Table 2, resulting in an overall impairment rating of 15 points. As Mr Sanders did not have at least 20 points under the Impairment Tables, he does not satisfy s 94(1)(b) of the Act as at the qualification period.
CITW - s 94(1)(c)
As the Tribunal has found that Mr Sanders did not have an impairment rating of 20 points or more and did not satisfy s 94(10(b) of the Act, it is not necessary for the Tribunal to consider whether Mr Sanders has a CITW pursuant to s 94(1)(c) of the Act. That said,
the Tribunal notes the evidence that Mr Sanders had not participated in a POS within the three years prior to the date of lodgement of his DSP claim (R1/ST1), and the opinion of the JCA, a rehabilitation counsellor, that Mr Sanders had a work capacity within two years with intervention of 15 to 22 hours per week in light less skilled work (T21/209).
In relation to the POS requirement, Mr Sanders told the Tribunal that he was naïve and
“had no idea or understanding of how it worked” (Transcript p9).
CONCLUSION
For the reasons discussed above, the Tribunal finds that Mr Sanders’ conditions do not attract an impairment rating of 20 points or more under the Impairment Tables as at the qualification period. Therefore, Mr Sanders was not qualified for DSP.
The Tribunal is sympathetic to Mr Sanders and his complex and difficult medical circumstances, and notes the evidence of assessments and treatment undertaken since the end of the qualification period for this DSP claim and Mr Sanders’ evidence that his conditions have worsened. It is open to Mr Sanders to again test his eligibility for DSP with recent medical evidence from the practitioners involved in the management and treatment of his various conditions.
DECISION
It follows from all of the above that the decision to reject Mr Sanders’ 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 11 October 2019.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, AM LVO (Retd), Member

...........................[sgd].............................................
Associate
Dated: 4 September

Date of hearing: 21 July 2020

Advocate for the Applicant: Ms Dzivi Chirenda

Advocates for the Applicant: Explorability Inc

Counsel for the Respondent: Ms Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 3440

4 September 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	21 July 2020
Advocate for the Applicant:	Ms Dzivi Chirenda
Advocates for the Applicant:	Explorability Inc
Counsel for the Respondent:	Ms Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers