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

Shurlock and Secretary, Department of Social Services (Social services second review) [2020] AATA 320 (26 February 2020)
Division:GENERAL DIVISION
File Number: 2019/2205
Re:Olivia Shurlock
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Fletcher

Date:26 February 2020
Place:Perth

The decision under review is affirmed.
.......................[sgd].................................................
Member I Fletcher
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Qualification Period – mental health condition – chronic widespread pain – whether Applicant has an impairment rating of
20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26(1), 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(2)
Social Security (Administration) Act 1999 (Cth) – s 42, Sch 2 cls 3, 4, 4(1)

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
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Pignat and Secretary, Department of Social Services [2017] AATA 2745
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Shi v Migration and Registration Authority (2008) 235 CLR 286
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide, Department of Social Services, version 1.261 – Instruction 3.6.3.05
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Table 5, rr 6, 6(1), 6(3), 6(4), 6(5), 6(6), 6(7), 8, 10(1), 11(4)

REASONS FOR DECISION
Member I Fletcher
26 February 2020
DECISION UNDER REVIEW

Mrs Shurlock (the Applicant) seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated
25 March 2019 that affirmed a decision made by an Authorised Review Officer (ARO) dated 10 October 2018. That ARO decision reviewed the decision made on 4 April 2018 by the Department of Human Services (Centrelink) (the Department) to reject the Applicant’s claim for disability support pension (DSP) lodged on 15 February 2018. The ARO found the decision made on 4 April 2018 to be correct.
ISSUES
The issue for the Tribunal to determine is whether the Applicant was qualified for DSP, in accordance with s 94 of the SocialSecurity Act 1991 (Cth) (the Act), during the period
15 February 2018 to 17 May 2018 (the qualification period).
This requires consideration of whether as at, or during, the qualification period:
(a)the Applicant had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act;
(b)if so, whether the Applicant had 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 (Cth) (Impairment Tables) for the purpose of s 94(1)(b) of the Act; and
(c)if so, whether the Applicant had a “continuing inability to work”, a term as defined in s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.
BACKGROUND
The Applicant made a claim for DSP to the Department on 15 February 2018 (T11/156). The Applicant listed the following in her claim: Ehlers-Danlos syndrome, fibromyalgia with chronic pain, sciatica, foot cartilage loss, anxiety, depression, insomnia, headaches, shoulder bursitis, spinal osteoarthritis, and torticollis.
In support of her claim the Applicant provided copies of: a medical report prepared by

Dr John Salmon, pain management specialist, dated 24 July 2012 (T5); further letters written by Dr Salmon dated 18 December 2012 (T6), 22 January 2013 (T7) and 12 June 2014 (T8); a number of letters written by Dr Ravi Agrawal and Dr Nicola Cooke, general practitioners attached to the Painless Clinic, dated from 16 March 2018 through until

29 October 2018 (T13, T14, T17, T18, T19, T23); and a GP management plan prepared by Dr Kym Silove, general practitioner, dated 5 February 2018, including a list of the Applicant’s current medications (T12).
A medical certificate completed by Dr Silove, dated 15 February 2018, was received by Centrelink (T12).
On 3 April 2018, an occupational therapist, representing the Department medical assessment team, decided that, in the absence of corroborating medical evidence, the Applicant’s various conditions of Ehlers-Danlos, neuropathic pain and fibromyalgia could not be considered fully diagnosed, treated and stabilised, and she was therefore “manifestly medically ineligible” for disability support pension (T15).
On 4 April 2018, a Centrelink employee advised the Applicant by letter that her DSP claim had been rejected as she was not eligible (T16).
A letter written by Dr Cook, rheumatologist, dated 2 May 2018 (T18), and a letter addressed “TO WHOM IT MAY CONCERN”, written by Dr Silove, dated 11 June 2018 (T20), were forwarded to Centrelink, and on 14 June 2018, the Applicant requested a review of the Department’s decision (T26/233). The matter was referred to an ARO for reconsideration.
After further referral from the Department, on 22 August 2018, a registered nurse, representing the Department of Human Services medical assessment team, again decided that the Applicant was “manifestly medically ineligible” for DSP (T21).
On 10 October 2018 the ARO affirmed the decision to reject the Applicant’s claim for DSP (T22).
On 4 December 2018 the Applicant applied to the AAT1 for a review of the Department’s decision (T2).
In a decision dated 25 March 2019, the AAT1 affirmed the decision to reject the Applicant’s claim for DSP, following a hearing at which the Applicant gave evidence by telephone (T2).
On 24 April 2019, the Applicant lodged an application for second review with General Division of the Administrative Appeals Tribunal (AAT2) (T1/1).
EVIDENCE
The Tribunal hearing took place on 31 January 2019. The Applicant appeared in person along with her husband who was present in a supporting role. Both the Applicant and her husband gave evidence under affirmation before the Tribunal. Ms Jones-Bolla from Sparke Helmore Lawyers represented the Respondent.
The Tribunal had the following material before it:
·
medical certificate (undated) by Dr Silove under cover of email, dated

26 September 2019 (Exhibit A1);
·bundle of evidence under cover of email, dated 26 September 2019 (Exhibit A2);
·
the Respondent’s Statement of Facts, Issues and Contentions, dated

23 October 2019 with Annexures A and B (Exhibit R1);
·the Respondent’s Hearing Certificate (Exhibit R2); and
·the T-documents (T1-T26) (Exhibit R3).
LEGISLATIVE FRAMEWORK
The relevant legislation is contained in:
(a)The Social Security Act 1991 (Cth);
(b)the Social Security (Administration) Act 1999 (Cth) (the Administration Act);
(c)the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and
(d)the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth).
The relevant policy is contained in the Guides to Social Policy Law: Social Security Guide (the Guide) which is to be followed unless there are cogent reasons for departing from it to ensure consistency in decision making: See Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.
Qualification for DSP
The qualification criteria for DSP is set out in s 94 of the Act, which relevantly provides as follows:
94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work; ...
The qualification criteria for DSP are cumulative and if any one of the criteria are not satisfied the person will not be qualified for DSP. The Guide at 3.6.3.05 relevantly notes:
The determination of an impairment rating and the assessment of CITW are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Qualification period
Section 42 of the Administration Act provides that a person’s “start day” in relation to a social security payment is the day worked out in accordance with Schedule 2 to the Administration Act.
Clause 3 of Schedule 2 to the Administration Act provides the general rule for a start day as the day on which a claim is made. Otherwise, a person’s qualification for DSP is to be considered during the 13 weeks following the date on which the claim was made, in accordance with sub-cl 4(1) of sch 2 to the Administration Act: See Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8].
As the date of claim is 15 February 2018, the qualification period for assessing the Applicant’s entitlement to DSP is therefore during the 13 week period from that date until 17 May 2018.
As there is a temporal element, the Applicant’s qualification for DSP can only be assessed in the qualification period, and if there is any deterioration or change to her medical conditions suggesting she may have become qualified at a later time, this is irrelevant to the Tribunal’s consideration of her impairments at the qualification period: see Shi v Migration and Registration Authority (2008) 235 CLR 286, 328 [144] – [145].
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (Bobera), Member Breen 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.
Bobera was cited with approval in the matter of Fanning and Secretary, Department of Social Services [2014] AATA 447 (Fanning), where Deputy President Handley made the following observations:
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 qualification period.
32.This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [Harris]. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
33.The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal’s decision.
In the more recent decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, the Federal Court affirmed the principle (as outlined above at [26] in Fanning and Harris) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant’s condition during the qualification period.
The Respondent contends that these decisions establish that a decision maker, such as the Tribunal, can only consider the Applicant’s qualification for DSP within the qualification period. If the Applicant’s circumstances have subsequently changed, it may be appropriate for her to lodge a new claim for DSP.
Impairment Tables
The Impairment Tables are an instrument made under s 26(1) of the Act, which commenced on 1 January 2012 (T3/31-106).
Section 6 of the Impairment Tables sets out rules for assessing the level of functional impairment of conditions and assigning impairment ratings.
Section 6(1) of the Impairment Tables states that a person’s impairment must be assessed on the basis of what the person can, or could do, not what they choose to do or what others do for the person.
Subsection 6(3) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent (a term defined in s 6(4) of the Impairment Tables), and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years.
Therefore, if the Applicant’s condition causing impairment is not permanent, the impairment resulting from this condition cannot be assigned an impairment rating.
In accordance with s 6(4) of the Impairment Tables, a condition is permanent if the condition:
(a)has been fully diagnosed by an appropriately qualified medical practitioner;
(b)has been fully treated;
(c)has been fully stabilised; and
(d)is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(5) of the Impairment Tables, 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 s 6(4)(a) and (b) of the Impairment Tables, 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 two years.
Subsection 6(6) of the Impairment Tables defines “fully stabilised” for the purposes of
ss 6(4)(c) and 11(4) of the Impairment Tables. It provides that a condition is
“fully stabilised” if:
(a)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 medical or other compelling reason for the person not to undertake reasonable treatment.
Subsection 6(7) of the Impairment Tables provides that, for the purposes of s 6(6) of the Impairment Tables, “reasonable treatment” is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 8 of the Impairment Tables sets out information that is not to be taken into account in applying the Impairment Tables. In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence, and unless required under the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Subsection 10(1) of the Impairment Tables states that table selection is to be made applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
The application of the Impairment Tables to the Applicant’s circumstances is discussed below.
CONSIDERATION
Does the Applicant have a physical, intellectual or psychiatric impairment?
The first qualification requirement for DSP is that the person must have a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act).
Having considered the evidence before it in the medical reports provided by Dr Salmon, Dr Silove, Dr Cooke, and Dr Agrawal, and taking into account the Applicant’s evidence at the hearing, the Tribunal finds that she suffers from chronic widespread pains, and anxiety with depression which have an effect on her ability to function.
The Tribunal is therefore satisfied that the Applicant satisfies s 94(1)(a) of the Act.
Does the Applicant have an impairment rating of 20 or more points under the Impairment Tables?
The Applicant’s medical conditions must also attract an impairment rating of at least
20 points according to the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (s 94(1)(b) of the Act).
Condition 1 – Chronic Widespread Pains
The Respondent drew the Tribunal’s attention to the fact that Dr Etop Etim is not a psychiatrist but is a senior medical officer as shown under his signature in a letter dated 19 January 2018 (Exhibit R1, Annexure A pp 6-7). The Respondent requested that the Tribunal accept an amendment to [36](b) of Exhibit R1 at page 6 to read Dr Etim, senior medical officer instead of psychiatrist. The Applicant acknowledged the fact that Dr Etim was not a psychiatrist. The Tribunal acknowledged this error and agreed to the requested amendment.

Based on the evidence before it, the Tribunal accepts that the Applicant suffers from chronic widespread pain, related to Ehler’s-Danlos syndrome and various other musculoskeletal conditions, which was fully diagnosed at the qualification period. However the Tribunal notes that the Applicant’s chronic widespread pain was not fully treated or fully stabilised at the qualification period. This is supported by the following evidence:
·
from 2012 to 2014 the Applicant was under the care of Dr Salmon (Pain Management Specialist). The most recent report from Dr Salmon is dated

12 June 2014, in it Dr Salmon made recommendations for future treatment (T8/150-151). However there is no evidence that the Applicant returned to see

Dr Salmon after this consultation, and on 5 February 2018 Dr Silove (GP) noted that the Applicant had last seen Dr Salmon three years ago (T10/154).
·Dr Etim (senior medical officer) reported on 19 January 2018 that the Applicant had ceased treatment with her previous pain specialist as her husband ‘ultimately became dissatisfied’ with the treatment. He noted that the Applicant was ‘very focused on her chronic pain and its effect on her lifestyle’, but was ‘unable to reach an agreement with her husband regarding management of her condition, and which practitioners/specialists to see’. Dr Etim recommended a referral to a pain specialist, and noted the Applicant’s husband was ‘now agreeable’ to this (Annexure A/6).
·Dr Agrawal (pain physician) provided a report dated 16 March 2018 after assessing the Applicant at the Painless Clinic. He assessed the Applicant as having widespread pain, central sensitisation, and psychosocial issues, and recommended a management plan including referral to a psychologist, pacing activities, physiotherapy, and changes in medication (T13/189-191).
Dr Agrawal provided a number of further reports as follows:
(i)on 29 March 2018 he reported that the Applicant would be consulting a physiotherapist soon, and recently ‘had a good session with (the Painless Clinic) psychologist Paul’ (T14/192-193).
(ii)on 26 April 2018 he reported that he had ‘strongly’ suggested the Applicant ween off benzodiazepines and Targin, and noted future treatment plans included walking/exercise, ongoing sessions with the physiotherapist and psychologist, and trying ‘Belsomra’ (T17/199).
(iii)on 8 June 2018, he reported that he had ‘strongly suggested’ that the Applicant continue her sessions with the clinical psychologist, emphasised the importance of pacing, going for daily walks, doing the exercise program and gentle stretches and he had again ‘strongly suggested to stop her diazepam’ (T19/203).
·
Dr Cook (rheumatologist) provided a report dated 2 May 2018 in which she noted that the Applicant had previously been under the care of Dr Salmon, but

Dr Cook concluded that the Applicant ceased this treatment as she ‘felt he was not helpful’. Dr Cook recommended referral to a psychiatrist, and also mentioned the ‘multidisciplinary pain management program run through the Black Swan health group in Osborne Park which is free and very well received’, although she noted the Applicant was presently engaged with Painless and recommended she continue under their care ‘in the 1st instance’ (T18/200-201).
·the Applicant’s Pharmaceutical Benefit Scheme (records confirm that, despite recommendations made by Dr Agrawal, the Applicant continued to take diazepam and numerous other pain medications (Exhibit R1, Annexure B).
·the Applicant advised the AAT1 that her current treatment consisted of medication, and that she ‘has been referred by her new general practitioner, Dr Kronje [sic], to another pain management program at a public hospital, and hopes to obtain some relief from her chronic pain as a result of her attendance there’ (T2/9).
The Tribunal notes the Applicant was initially engaged in treatment with Dr Salmon but ceased this treatment program despite his recommendations for future treatment as she/her husband were not ‘satisfied’. The Applicant did not explore alternative treatment with a pain specialist until March 2018, approximately one month after lodging her claim for DSP, when she first engaged with the Painless Clinic. Throughout the remainder of the qualification period, the Applicant continued to engage in treatment at Painless Clinic and had not completed the program by the conclusion of the qualification period. Since the qualification period, she has continued to explore alternative treatment options with different specialists (see Annexure A/9-12). It therefore cannot be said that the Applicant’s chronic widespread pain was fully treated or fully stabilised at the qualification period.
The Tribunal also notes that the Applicant had not yet completed the Painless Clinic pain management program by the end of the qualification period, and this was a reasonable treatment for her to undertake. Accordingly, her chronic widespread pain was not fully treated or stabilised at the qualification period. On 19 January 2018, Dr Etim diagnosed the Applicant with ‘an Adjustment Disorder with mixed Anxiety and Depressed mood, in the context of pain and psychosocial stressors’ and recommended future treatment aimed at managing her pain (Annexure A/6).
Based on the evidence above the Tribunal accepts the Respondent’s contention that the Applicant’s chronic widespread pain cannot be assessed as fully treated or fully stabilised at the qualification period due to its relationship with the Applicant’s mental health condition, which was not fully diagnosed, treated and stabilised (FDTS) at the qualification period and can therefore not be considered under the Impairment Tables. The evidence suggests that significant functional improvement may be expected in relation to the Applicant’s widespread pain if the Applicant’s mental health condition were appropriately treated. For example:
·in his report dated 12 June 2014, Dr Salmon noted that the Applicant had not been to her psychologist since the end of 2013 because she ‘finds travelling too difficult’, and he had ‘strongly emphasised the benefits of her having CBT pain management input’ (T8/150-151).
·on 19 January 2018, Dr Etim diagnosed the Applicant with ‘an Adjustment Disorder with mixed Anxiety and Depressed mood, in the context of pain and psychosocial stressors’ and recommended future treatment aimed at managing her pain (Annexure A/6).
·Dr Cook reported on 2 May 2018 that the Applicant’s ‘anxiety depression is a major factor and needs addressing in its own right and that her pain will not improve without this... I believe she should be referred back to a psychiatrist for reassessment’ (T18/200-201).
·on 8 June 2018 Dr Agrawal ‘strongly suggested’ that the Applicant continue her sessions with the clinical psychologist (T19/203).
·
Dr Cooke (GP) of the Painless Clinic noted on 8 February 2019 that the Applicant:

would benefit from long term supportive psychotherapy/talking therapy...She needs to be active and to look for positives as inactivity and despair about her condition can re-enforce her pain and low mood
(Exhibit R1, Annexure A/12; Exhibit A2).
Where a functional impairment is caused by one or more conditions, one of which is fully treated and stabilised and one of which is not, it is not possible to assign a rating to any functional impairment caused by the fully treated and stabilised condition unless the Tribunal can be satisfied of the degree to which that condition, and only that condition, causes the reported functional impairment (see Pignat and Secretary, Department of Social Services [2017] AATA 2745 at [22]). The Tribunal is not satisfied, in the present case, that any functional impairment resulted from the Applicant’s chronic widespread pain rather that her mental health condition.
The Tribunal has determined that as the Applicant’s chronic widespread pain was not fully treated or stabilised at the qualification period a resulting impairment cannot be rated under the Impairment Tables.
Condition 2 - Mental health condition
At the qualification period, the Applicant was suffering from an adjustment disorder which was fully diagnosed by Dr Etim in his report dated 19 January 2018 (Exhibit R1, Annexure A/6). However, as outlined above at [45] it is now acknowledged that Dr Etim was not a psychiatrist.
The introduction to Table 5 – Mental Health Function of the Determination (T3/52) states:
Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment)
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).
The Applicant has not seen a psychiatrist or a clinical psychologist. At the hearing the Applicant expressed frustration at the fact that she did not know Dr Etim was not a psychiatrist when she saw him.
Therefore, the Applicant cannot be considered to be fully diagnosed as her condition was not fully treated or fully stabilised at the qualification period. The resulting impairment cannot be rated under the Impairment Tables.
Other Conditions
The Tribunal notes that the Applicant has been diagnosed with other conditions, including sciatica, foot cartilage loss, insomnia, headaches, shoulder bursitis, spinal osteoarthritis, and torticollis. However insufficient evidence has been provided for the Tribunal to determine whether these conditions were FDTS at the qualification period. Accordingly, no impairment rating can be assigned.
The Applicant provided additional evidence regarding a condition affecting her feet (Exhibit R1, Annexure A/1-5). The Tribunal considers that this condition cannot be considered fully treated or stabilised at the qualification period as the evidence provided suggests that the Applicant did not receive any specific treatment for her bilateral foot condition from 2012 until September 2019, when she was re-referred to Dr Scott Isbel (Sports Physician).
Total impairment rating
The Tribunal has determined that at the qualification period, the Applicant had a total impairment rating of zero points under the Impairment Tables. On that basis, the Applicant did not meet the qualification criteria under s 94(1)(b) of the Act.
Continuing Inability to Work
As the Applicant failed to satisfy s 94(1)(b) of the Act and is ineligible for the DSP at the qualification period, the Tribunal did not address the continuing inability to work.
Applicant’s General Comments
At the Tribunal hearing, the Applicant expressed frustration on a number of occasions and was tearful several times. She said that she did not trust her treating practitioners and did not have faith in her specialists. She also made the point that she has had adverse reactions to many of the medications that she has been prescribed. The Tribunal pointed out that decisions made in the granting of DSP require medical evidence that is corroborated.
Self-reporting cannot be considered by the Tribunal unless it is corroborated by medical evidence. In this case there is no corroborating evidence to validate the Applicant’s assertion.
CONCLUSION
Having considered all the evidence before it, the Tribunal finds that the Applicant’s medical conditions cannot be assigned an impairment rating because the conditions were not fully treated and stabilised. Under s 94(1)(b) of the Act the Applicant does not meet the required minimum of 20 points to qualify for DSP at the date of claim.
The Applicant may consider testing her eligibility for DSP again, with further recent medical evidence relating to her various conditions. Evidence from a psychiatrist or clinical psychologist is also required if she is to meet the Impairment Table Guidelines for Table 5 – Mental Health Function.
DECISION
The decision under review is affirmed.

I certify that the preceding 64 (sixty - four) paragraphs are a true copy of the reasons for the decision herein of Member I Fletcher

...........................[sgd].............................................
Associate
Dated: 26 February 2020

Date(s) of hearing: 31 January 2020

Applicant: In person

Representative for the Respondent:
Ms Daphne Jones-Bolla

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2020] AATA 320

26 February 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	31 January 2020
Applicant:	In person
Representative for the Respondent:	Ms Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers