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

Smith and Secretary, Department of Social Services (Social services second review) [2019] AATA 1279 (13 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7289
Re:Timothy Smith
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:13 June 2019
Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
SOCIAL SECURITY – Disability Support Pension – medical condition – skin condition – whether the Applicant’s impairment can be assigned 20 points or more under the Impairment Tables – whether Applicant’s condition fully diagnosed, treated and stabilised - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act ss 37, 43
Social Security Act 1991 s 94
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 6, 11
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 and Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
REASONS FOR DECISION
Member W Frost
13 June 2019
INTRODUCTION

Mr Timothy Smith’s claim for Disability Support Pension (DSP) due to a skin condition he has experienced since 2013 was rejected by Centrelink in October 2017. Mr Smith unsuccessfully sought review of Centrelink’s decision by an Authorised Review Officer. In November 2018, the Social Services & Child Support Division of the Tribunal affirmed the rejection of Mr Smith’s claim for DSP. Mr Smith now seeks review by the General Division of the Tribunal.
Centrelink, on behalf of the Respondent, did not consider that Mr Smith was qualified for DSP at the date of his claim, or within 13 weeks thereafter, because his psychiatric and physical impairments did not meet the required 20 point impairment rating under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables).
ISSUE
The issue before the Tribunal is whether Mr Smith was qualified for the DSP at the date of his claim on 11 July 2017 (or within the following 13 weeks).
BACKGROUND
In or around August 2013, Mr Smith underwent surgery on his hand to repair damage caused to his thumb area as a result of a workplace accident. Mr Smith asserted that shortly after this surgery a ‘red dot’ appeared on one side of his face which he assumed was an ‘ingrown hair’ or ‘blind pimple’. A week later, additional red dots appeared on the other side of Mr Smith’s face and he started to ‘cover them with make-up then they went away and would only come back when I got rundown or sick.’[1] For example, when Mr Smith contracted the influenza virus at an unidentified time after the surgery, his skin ‘broke out again and felt like my face was on fire’.[2] Mr Smith also referred at hearing to ingrown hairs on his face grouping together under his skin that were ‘trying to escape’, with the resultant pain at times being such that it was like someone was ‘taking to his face with a knife’.
[1] Exhibit A1.
[2] Exhibit A1.
Following this outbreak on his face, Mr Smith stated that his general practitioner prescribed him ‘antibiotics and other tablets’, but that: ‘About a week after taking the tablets I noticed that my head was thinking about death and crazy thoughts’.[3] According to Mr Smith, one set of tablets prescribed by his general practitioner, purportedly unknowingly to Mr Smith, was a ‘high dosage antidepressant and I am not a depressed person’.[4] There was no medical evidence before the Tribunal about whether the prescription of the antidepressant to Mr Smith was due to a mental health condition or his skin condition. Approximately one week later, Mr Smith felt ‘suicidal’. At the time, Mr Smith’s then roommate, Ms Cynthia Tan, conducted an internet search to identify the nature of the tablets given to Mr Smith. Mr Smith said that this search led to his and Ms Tan’s diagnosis of the condition as being ‘staphylococcus folliculitis’, a condition where hair follicles become infected with bacteria. Upon further reading, they determined that if antibiotics were not proving successful at eradicating the problem, the infection had been in a person’s system for too long and a cortisone injection into the lesions, that occurred as a result of the infection and picking at the skin, was the only preventative measure.
[3] Ibid.
[4] Ibid.
Mr Smith asserted that, prior to his hand surgery in 2013, he did not have either the skin condition or a mental health condition. At hearing, Mr Smith alleged that medical negligence during the surgery was the cause of his skin condition, because bacteria invaded his body during or after the operation as a result of there not being ‘clean tools’ and that he was ‘sent on a wild goose chase’ to identify the problem because no medical professional wanted to admit that it arose ‘from the hospital…from the best surgeon’. There was, however, no evidence before the Tribunal to substantiate this allegation, but it is not determinative of Mr Smith’s DSP claim.
The earliest medical information available to the Tribunal was a report from a dermatologist at the Department of Dermatology at Prince of Wales Hospital in Sydney, New South Wales and another dermatologist, Dr Annette Wegman, dated 30 May 2014, which referred to a swab of Mr Smith’s face that had grown ‘staphlococcus aureus and streptococcus’.[5] The report noted that this was ‘an expected finding of colonisation / mild superinfection, and not the primary pathology, although he [Mr Smith] is unwavering in his belief that this is the main issue’. The report also noted that Mr Smith’s skin condition was due to ‘ingrown hairs in the beard which he compulsively picks at, leaving ulcerated, excoriated areas across his face’.
[5] Section 37 Tribunal Documents (T-Documents) T4, folio 89.
Despite this medical evidence, Mr Smith does not accept that his skin condition arose due to him picking or scratching at his face, which leads to damaged skin that is susceptible to bacterial infection of the type identified by the swab of his skin and confirmed by the dermatologists. Moreover, Mr Smith claimed that the dermatologists ‘didn’t even look at my skin’ when he was being assessed by them and they said ‘I had to stop doing this to myself and they called the psych people…I had to like run out before they locked me away’.
For completeness, the Tribunal notes that in the dermatologists’ report to Mr Smith’s general practitioner following their assessment of his skin, they stated that:
He is a 30 year old gentleman with concern over ingrown hairs in the beard which he compulsively picks at, leaving ulcerated, excoriated areas across his face. He is concerned there are long hairs growing under the skin, including physiologically improbable cases of hairs that start on one cheek, tunnel under the chin and end up on the other cheek, one of which he claims has been removed in its entire 30 cm length.
On further questioning, he admits to sustained periods of low mood, with functionally disabling levels of anxiety leading to him not being able to leave the house at certain times. He denies any illicit medications, and says he is only taking tramadol and Valium pm.
A previous swab from his face has grown staphylococcus aureus and streptococcus, which is an expected finding of colonisation / mild superinfection, and not the primary pathology, although he is unwavering in his belief that this is the main issue.
…
On examination, he fluctuated in his affect from tearful, to anxious, to nonchalant to the point he was eating and drinking during the consultation whilst being questioned. He did not display any signs of formal thought disorder, or hallucination, but the fixed belief that these that [sic] ingrown hairs and his Staphylococcal superinfection were his primary pathology was suggestive of a fixed delusion which we were unable to redirect him from. Despite the affective / anxiety changes, he denies any suicidal intent. He has multiple excoriated lesions within the beard distribution. All of which are secondary changes, and there were no primary lesions visible.
Overall, our impression is that there is minimal or no organic dermatological pathology, but skin changes stemming from psychological comorbidities. We feel he needs formal psychiatric evaluation, and the main challenge will be convincing him of the same thing. He has very reduced insight into his condition and feels like people are bouncing him from service to service and not giving him the answers he wants to hear. I am not sure whether his delusion is of the schizoaffective spectrum / a true psychotic disorder, and whether there are any illicit drugs involved, or whether it is a severe neurosis / obsessional picking.[6]
[6] Ibid.
In June 2014, Mr Smith’s general practitioner referred him to another dermatologist and he attended Dr Diana Rubel at Woden Dermatology in the Australian Capital Territory (ACT) on 16 June 2014. Dr Rubel’s letter to Mr Smith’s general practitioner notes that:
He injured his hand in a workplace accident in August 2013. At around the same time he started to develop a few lesions on his face and limbs which he tends to excoriate and try to remove ingrown hairs from. This is causing him significant anxiety and stress. In fact he googled his condition through Google images and came up with a diagnosis of “crack scabs” so he is now quite anxious that his work colleagues and friends may think that he suffers from this condition.
…
I have explained to Tim the nature of these conditions today and the vicious cycle that contributes to the ongoing formation and if untreated, further dissemination of prurgio like lesions.
I have prescribed Advantan ointment to be used on the facial lesions, along with oral clindamycin. I have injected one of the prurgio plaques on his lower limbs today. I will be reviewing him again in 6 weeks’ time.[7]
[7] T6, folio 91.
On 26 March 2015, Dr Rubel reviewed Mr Smith’s condition and set out in a letter to his general practitioner that:
He is becoming more and more distressed about his cutaneous skin changes, which I still think are in keeping with neurodermatitis and folliculitis secondary to chronic picking and trauma.
…
I have concerned [sic] about his current state and also about the possibility of making his skin more fragile. He is certainly quite distressed and I think that this is playing a huge part in his skin problem and I have urged him to return to see you for further discussion of this. I did prescribe Doxepin [medication to treat anxiety, amongst other things] but he is not taking this as he is concerned about some adverse events that he has experienced from this.[8]
[8] T7, folio 92.
A microbiology report from Laverty Pathology dated 3 May 2015 notes that Mr Smith had ‘Very light growth of Org 1: Staphlyococcus aureus’ following a swab test of his face on 30 April 2015, which also did not reveal the presence of any organisms.[9] The findings of the microbiology report corroborated the results of the earlier swab taken and referred to in the report one year earlier from the dermatologists that assessed Mr Smith at Prince of Wales Hospital.
[9] T8, folio 93.
On 26 June 2017, Mr Smith contacted Centrelink about his intention to claim DSP. On the same day, Centrelink informed him by letter of further information it required in relation to his claim.[10]
[10] T9, folio 94-95.
On 29 June 2017, Mr Smith attended Dr Robert Lui at Kambah Medical Centre in the ACT, where he had been a patient since November 2014, and obtained a Centrelink medical certificate. Dr Lui diagnosed Mr Smith with ‘Recurrent skin infections’, with a prognosis of ‘Less than 3 months’. The symptoms listed were ‘Skin infection intermittently’ and Mr Smith was assessed by Dr Lui as having a two week incapacity for work from the date of the appointment to 13 July 2017.[11]
[11] T10, folio 96.
On 11 July 2017, Mr Smith lodged a claim for DSP with Centrelink in which he listed his ‘disabilities, illnesses or injuries’ as follows: ‘So I got a staf infection from haveing a op 4 years ago its streptercockel some hair follicals get infeckted and grow under my skin [sic]’.[12]
[12] T14, folio 157.
On 18 July 2017, an Assessment Services Recommendation was prepared by an occupational therapist for Centrelink for the purposes of considering Mr Smith’s eligibility for DSP. The recommendation made by the assessor to Centrelink was that Mr Smith was ‘Manifestly medically ineligible’ for DSP because his conditions were ‘clearly temporary’. [13]
[13] T12, folio 99.
On 22 August 2017, Mr Smith attended Dr Nathem Al-Naser of Conder Surgery in the ACT, who prepared the following note on the same date:
Mr Timothy Smith was seen by me upon referral from his gp dr Anil goel for injections into his skin when his acne/chronic infection on the face flares up, this condition is recurrent, he is very Anxious and stressed and unable to get job because of his condition, he was seen by dermatologist, and advised to see psychiatrist by me which he is telling me that he did, I don’t have all information about him and I suggest that he goes back to Dr goel regarding his centrelink needs he is clearly suffering with this issue.[14] [sic]
[14] T13, folio 101.
On 15 September 2017, a further Assessment Services Recommendation was prepared by a psychologist for Centrelink.[15] Again, the recommendation to Centrelink was that Mr Smith was ‘Manifestly medically ineligible’ for DSP because his conditions were not fully diagnosed, treated and stabilised.
[15] T15, folio 162-164.
On 10 October 2017, Mr Smith's claim for DSP was rejected by Centrelink on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.[16]
[16] T16, folio 165.
On 8 November 2017, Mr Smith requested a review of Centrelink’s rejection decision.
On 17 April 2018, Mr Smith attended a telephone assessment with a Job Capacity Assessor (JCA) to assess the impact of Mr Smith’s condition on his ability to work and to assist Centrelink to determine the outcome of his requested review.[17] The JCA, an occupational therapist, was also not satisfied Mr Smith’s skin condition was fully diagnosed, treated and stabilised, and noted that:
The client reported he has seen dermatologists, a psychologist for 10 sessions (however was unable to remember their name), a psychiatrist (however unable to remember their name) and has tried various creams, ointments, cortisone injections, and medications, he reported he has “tried everything”’.[18]
…
The condition is considered permanent as there is evidence of a long history of symptoms and treatment, however the condition is not considered fully diagnosed, treated or stabilised. There is evidence that the dermatologists do not think there is dermatological pathology causing the condition and rather underlying mental health condition that may be causing the condition. As there was no evidence of psychiatric or clinical psychologist assessment or treatment provided in the medical evidence, and these assessments have been recommended by other specialists involved in the client's care, the condition is unable to be considered fully diagnosed, treated or stabilised.[19]
[17] T22, folio 179.
[18] Ibid, folio 180.
[19] Ibid, folio 181.
As a result, the JCA assessed Mr Smith as having a baseline work capacity of between 15 and 22 hours per week (that is, making him ineligible for DSP because he was assessed as being able to work for at least 15 hours per week as it is defined under section 94(5) of the Social Security Act 1991 (the Act)) and having a capacity of between 23 and 29 hours per week within two years with intervention.
On 3 May 2018, an Authorised Review Officer (ARO) of the Department of Human Services affirmed Centrelink’s 10 October 2017 decision to reject Mr Smith’s DSP claim.[20]
[20] T24, folio 186.
On 9 May 2018, Mr Smith’s general practitioner, Dr Goel, sent a letter to the Infectious Diseases Clinic at Canberra Hospital for Mr Smith to be assessed for his ‘persistent stap infection on the face’ [sic].[21] According to Mr Smith, the surgeon that operated on his hand in 2013 facilitated the appointment because Mr Smith went to see him and ‘demanded’ he ‘do something’ regarding his skin condition, for which he blames the surgeon ‘that didn’t do his job properly’. On 22 June 2018, Canberra Hospital confirmed by letter to Mr Smith an appointment with the Infectious Diseases Clinic on 1 August 2018.[22] However, there was no evidence before the Tribunal of any confirmed attendance at this appointment or a report of the Clinic’s assessment of Mr Smith’s skin condition.
[21] T25, folio 192.
[22] T28, folio 197.
On 10 May 2018, Mr Smith’s general practitioner, Dr Goel, sent a referral letter for Mr Smith to attend a psychologist at Richardson Community Psychology in the ACT. The referral letter attached a ‘K10 Assessment’ (being the Kessler Psychological Distress Scale) of Mr Smith’s mental health condition and listed his total score as 41 out of 50. Dr Goel also completed a ‘Mental Health Treatment Plan’ for Mr Smith and listed the ‘Problem/Diagnosis’ as ‘Mixed anxiety and depression’ and the ‘Goal’: ‘help cope with his issues esp skin’.[23]
[23] T 26, folio 193-196.
On 5 July 2018, Mr Smith attended Ms Arwen Mow-Lowry, a psychologist at Richardson Community Psychology in the ACT, for counselling for ‘anxiety and depression’. An assessment was undertaken on Mr Smith with the following results detailed in a letter to Dr Goel dated 6 July 2018: Depression – 40 (extremely severe); Anxiety – 28 (extremely severe); and Stress – 31 (severe). Ms Mow-Lowry undertook to follow up with Mr Smith’s general practitioner following his sixth session.[24] However, an undated ‘support letter’ provided by Ms Mow-Lowry noted that ‘Mr Smith has attended two sessions, cancelled a third session and not shown up for an additional two sessions’.[25]
[24] Exhibit A4.
[25] T38, folio 252.
On 19 September 2018, Mr Smith applied to the Social Services & Child Support Division of the Tribunal for review of Centrelink’s rejection decision.
On 12 November 2018, Victim Support at the ACT Human Rights Commission provided a letter of support confirming that Mr Smith was a ‘victim of a serious crime in April 2018, involving firearms and threats to kill’.[26] The letter went on as follows:
this matter has caused him a great deal of ongoing stress and anxiety, particularly given the alleged offender, initially remanded in custody, was let out on bail. Tim advises this causes ongoing anxiety and stress due to feeling unsafe, he advises that as a result of this ongoing stress his physical skin condition has been greatly impacted.
[26] T33, folio 205.
On 13 November 2018, the Social Services & Child Support Division of the Tribunal affirmed the decision under review that Mr Smith did not meet the requisite criteria to qualify for DSP.
On 10 December 2018, Mr Smith lodged an Application for Review of Decision with the General Division of the Tribunal. At hearing, the Tribunal had before it submissions from the parties, documents filed by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and additional documents filed by Mr Smith in relation to his condition and claim, including:
(a)Letter dated 30 January 2019 from his general practitioner, Dr Goel, noting that Mr Smith’s ‘problem with the face continues’;[27]
[27] Exhibit A2.
(b)Letter dated 18 February 2019 from his general practitioner, Dr Goel, noting that ‘His skin condition continues despite various inputs. This has reduced his morale and increased anxiety. He is unable to present himself to the workplace due to his skin issues and hence unable to work’;[28]
[28] Exhibit A3.
(c)Statement dated 20 February 2019 from Ms Cynthia Tan[29], who also attended and gave evidence at the hearing, confirming that: she has known Mr Smith for 15 years, and lived with him as a flatmate for 8 years; Mr Smith was previously hard-working and committed to getting the most out of life through his fitness, diet and social life; and he became withdrawn and not the happy person he was prior to the surgery and his subsequent skin condition; and
(d)Statement of Mr Smith dated 29 February 2019, which notes that:
The doctors want to give me pain medication but the only thing that works is Valium which I can’t get because it’s addictive. But Valium helps me cause when it flares up my anxiety gets really unbearable…The thing is when I have Valium it stops the anxiety and the pain stops but the doctors don’t see or care about the pain they just say sorry they are addictive and no.
…
It is killing me slowly.
It attacks my immune system and it has halved my life expectancy.
The life I have been living the last 6 years is not living.
I can’t get a job as no-one seems to want to hire me because I’m a potential liability for them and everyone in their workplace.[30]
CONSIDERATION
[29] Exhibit A7.
[30] Exhibit A6.
What is the qualification period for assessment of eligibility for DSP?

Mr Smith lodged his claim for DSP on 11 July 2017. Section 4 in Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act) sets out how to determine the ‘start day’ for a social security payment following an early claim by an applicant, as follows:
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.
Pursuant to the above, the Tribunal is required to assess Mr Smith’s claim for DSP based on his medical conditions as at the date of his claim or within 13 weeks of that time (Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8]; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at 31-33).
The ‘start day’ for Mr Smith’s claim for DSP is therefore 11 July 2017 and the 13 week qualification period runs from that date until 10 October 2017.
The Federal Court of Australia has endorsed the principle, discussed in Fanning and Harris, that medical reports after the qualification period will only be relevant to the extent that they refer to the applicant’s condition during the qualification period (Gallacher and Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29]). Accordingly, the Tribunal can only consider Mr Smith’s eligibility for DSP within the qualification period, assisted by medical information regarding Mr Smith’s condition as it was during that period and not following the end of the qualification period.
What are the qualification criteria for DSP?
Section 94 of the Act sets out the qualification requirements for a person aged 16 years or over to receive DSP, as follows:
1A 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…
Evidently from the above, each element of the three qualification criteria set out in section 94(1) of the Act must be satisfied before a person can be accepted as qualified for DSP.
Was there a physical, intellectual or psychiatric impairment?
The Tribunal is satisfied on the evidence before it that Mr Smith suffered from a skin condition and a mental health condition during the qualification period such that he meets the first criteria under section 94(1) of the Act set out in sub-section (a). That is, Mr Smith had a physical and psychiatric impairment. The Respondent also acknowledged that Mr Smith suffered from both physical and psychiatric impairments to satisfy this one of the three elements of the test for qualification for DSP under section 94(1) of the Act.
Was there a rating of 20 points or more under the Impairment Tables?
Under section 94(1)(b) of the Act, a person’s impairment must be determined to be 20 points or more under the Impairment Tables. As set out in paragraph 5 of the Impairment Tables, they are: designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions; function based, rather than diagnosis based; and describe functional activities, abilities, symptoms and limitations.
The Rules contained in Part 2 of the Impairment Tables must be satisfied before an impairment rating can be assigned to a DSP applicant. In this regard, paragraph 6(3) of the Rules provides that an impairment rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment ‘is more likely than not, in light of available evidence, to persist for more than 2 years’.
Under paragraph 6(4) of the Rules, a person’s condition is ‘permanent’ if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
In determining whether a condition has been ‘fully diagnosed’ and ‘fully treated’ for the purposes of paragraphs 6(4)(a) and (b), paragraph 6(5) of the Rules provides that the following must be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Under paragraph 6(6) of the Rules, a person’s condition is ‘fully stabilised’ if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
When applying the Impairment Tables, the impairment ‘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 or what others do for the person’ (paragraph 6(1)). Importantly, a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned under the Impairment Tables if it has no functional impact on the person (paragraph 6(8) of the Rules).
Having regard to the Act, the Impairment Tables and the evidence before the Tribunal, the Tribunal finds that Mr Smith's skin condition has not been fully diagnosed, fully treated and fully stabilised as required under the Rules in order to assign an impairment rating under the Impairment Tables. Additionally, there was no available evidence before the Tribunal that Mr Smith’s condition is more likely than not to persist for more than 2 years.
In relation to the requirement for Mr Smith’s skin condition to be fully diagnosed and fully treated, although there was corroborating evidence of his skin condition from dermatologists (who noted that it was secondary to a mental health condition), there was a lack of evidence about what treatment or rehabilitation has occurred in relation to the condition and whether such treatment is continuing or planned in the next 2 years. Mr Smith said that he had previously received cortisone injections and taken Valium to assist with his condition, but there was no evidence of any ongoing treatment to meet the threshold of a condition being fully diagnosed and fully treated pursuant to paragraph 6(5) of the Rules. In this regard, despite Mr Smith’s assertion, the information before the Tribunal from various medical professionals did not demonstrate treatment that has occurred in order to satisfy the required criteria. The overwhelming medical evidence before the Tribunal is that Mr Smith’s skin condition is secondary to a primary condition, being a mental health condition.
In relation to the requirement for Mr Smith’s skin condition to be fully stabilised, there was a lack of evidence before the Tribunal that Mr Smith had undertaken reasonable treatment for the condition (as suggested to him repeatedly by various medical practitioners) and that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling him to undertake work in the next 2 years pursuant to paragraph 6(6) of the Rules.
The Tribunal finds that Mr Smith’s condition does not meet the requirements under the Rules to be assigned an impairment rating under the Impairment Tables. This is primarily based on the specialist medical evidence before the Tribunal, which suggests that Mr Smith's skin condition stems from a mental health condition. At the hearing, Mr Smith acknowledged that he had a mental health issue, but he did not accept that this was the primary condition, despite the available medical evidence before the Tribunal from skin specialists that assessed his skin condition as being secondary to an underlying mental health condition.
Mr Smith provided the Tribunal in his written submissions and at hearing with material on the causes, diagnoses, treatments and preventions relating to skin conditions such as staphylococcal infections and folliculitis. The Tribunal accepts Mr Smith’s evidence that, as a result of his skin condition, he can suffer from physical pain on and around his face, and associated emotional pain. However, in addition to the above failure to satisfy the requirements of having a condition that is fully diagnosed, treated and stabilised, Mr Smith acknowledged at hearing that he had limited medical evidence regarding the impact of his condition on his functional capacity, including his ability to undertake work of 15 hours or more in the next 2 years.
For these reasons, Mr Smith does not satisfy the essential requirement under the Rules, that is, having a skin condition that is fully diagnosed, fully treated and fully stabilised in order for the Impairment Tables to be applied and a rating assigned to his condition to assess his qualification for DSP. Mr Smith therefore does not have an impairment rating of 20 points or more under the Impairment Tables pursuant to section 94(1)(b) of the Act.
The evidence before the Tribunal does suggest that Mr Smith is impaired in performing daily activities as a result of a mental health condition although, based on that evidence, this condition was also not fully diagnosed, treated and stabilised at the time of his DSP claim and during the qualification period. Therefore, an impairment rating for a mental health condition cannot be assigned to Mr Smith.
Mr Smith’s written submissions stated that: ‘There is no relevance for a mental health diagnosis’.[31] This statement, together with his contentions at hearing that his mental health condition is not his primary condition, indicates Mr Smith’s level of insight into his psychiatric and physical conditions and the requirements for the assessment and granting of DSP. Until Mr Smith obtains a diagnostic opinion from an appropriately qualified medical practitioner, and receives reasonable treatment for his primary condition, being a mental health condition, his secondary skin condition cannot be assessed as fully diagnosed, treated and stabilised for the purposes of the Impairment Tables and potential qualification for DSP.
[31] Exhibit A1.
CONCLUSION
Mr Smith could not be assigned any impairment rating under the Impairment Tables because neither of his physical or psychiatric conditions were fully diagnosed, treated and stabilised during the qualification period. Mr Smith’s claim for DSP therefore fails to satisfy sub-section 94(1)(b) of the Act.
As a result of the finding that Mr Smith did not have a total impairment rating of at least 20 points under the Impairment Tables, given the conjunctive nature of sub-section 94(1) of the Act, the Tribunal is not required to consider whether Mr Smith had a continuing inability to work in order to determine whether he meets this subsequent element of the DSP criteria under sub-section 94(1)(c) of the Act.
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

........................................................................
Associate
Dated: 13 June 2019

Date(s) of hearing: 29 May 2019

Applicant:

Representative for the Applicant:

Solicitors for Respondent:

Mr Timothy Smith

Ms Victoria West-Brincau

Ms Claire Campbell, Minter Ellison

[2019] AATA 1279

13 June 2019

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