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

[2019] AATA 5191

Tralonga and Secretary, Department of Social Services (Social services second review) [2019] AATA 5191 (3 December 2019)

Division:GENERAL DIVISION

File Number:2019/2238           

Re:Lynda Tralonga  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Belinda Pola, Senior Member 

Date:3 December 2019

Place:Brisbane

The decision under review is affirmed.

..........................[Sgd].............................................

Senior Member Belinda Pola

Catchwords

SOCIAL SECURITY – disability support pension – DSP – Whether medical conditions fully diagnosed, fully treated and fully stabilised – Whether 20 points or more under the Impairment Tables during the Relevant Period – Decision under review affirmed.

Legislation

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Social Security Act 1991 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810

Fanning and Secretary, Department of Social Services [2014] AATA 447

Faulkner and Comcare [2007] AATA 1541

Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Belinda Pola, Senior Member
3 December 2019

BACKGROUND

1. On 24 July 2017[1] the Applicant, Ms Lynda Tralonga, signed an Application for the Disability Support Pension (‘DSP’), which was received by the Department of Human Services (the ‘Department’) on 14 August 2017[2].

   [1]     Exhibit 1, T11, page 119.

   [2]     Exhibit 1, T39, page 223.

2. On 9 October 2017[3], the Applicant was advised by the Department that her claim for the DSP was rejected. The decision to reject the Applicant’s claim for the DSP was again affirmed by an Authorised Review Officer (‘ARO’) after an internal review by the Department on 25 October 2018[4].

   [3]     Exhibit 1, T14, page 125 and 126.

   [4]     Exhibit 1, T28, page 150 to 156.

3. On 14 December 2018[5], the Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (the ‘Tribunal’) to review the Department’s decision to reject claim for DSP. The SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for DSP on 13 March 2019[6].

   [5]     Exhibit 1, T29, page 157 and 158.

   [6]     Exhibit 1, T2, pages 6 to 22.

4. The Applicant applied to the Tribunal for a second review of this decision on                    23 April 2019[7].

   [7]     Exhibit 1, T1, pages 1 to 5.

   JURISDICTION

5. This is an Application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.

6. Section 179(1) of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’) provides that:

   (1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.

7. The Tribunal has jurisdiction to hear this Application.  

   ISSUES

8. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 14 August 2017, and ending 13 weeks later on 13 November 2017[8].

   [8]     The Qualification Period is discussed in later paragraphs of this Decision.

9. For the purposes of this Application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments during the qualification period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a)[9] .

   [9]     Exhibit 2, page 7, paragraph 36.

10. The issue for the Tribunal to resolve in respect of the Applicant’s claim for DSP is:

    (i)

    Whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

    
    

    (‘the Determination’) within the qualification period; and

    (ii)If so, did the Applicant have a continuing inability to work?

    RELEVANT LEGISLATIVE PROVISIONS

11. The medical qualification criteria regarding eligibility for DSP are set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act:

    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;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

    …

12. To be medically qualified for a DSP a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.

13. Section 26(1) of the Act provides that “the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

14. It is the Tribunal’s role to stand in the shoes of the original decision-maker[10] and determine whether the decision was the correct or preferable one on the material before the Tribunal[11]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

    [10]    Faulkner and Comcare [2007] AATA 1541 [27].

    [11]    Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.

15. Section 6 of the Determination provides that “the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[12]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[13].

    [12]    Section 6(1) of the Determination.

    [13]    Section 6(2) of the Determination.

16. An impairment rating may only be assigned to an impairment if[14]:

    [14]    Section 6(3) of the Determination.

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.

    17.     Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[15]:

    [15]    Section 6(4) of the Determination.

    ·be fully diagnosed by an appropriately qualified medical practitioner; and

    ·be fully treated; and

    ·be fully stabilised; and

    ·be more likely than not, in light of available evidence, to persist for more than 2 years.

17. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[16]:

    [16]    Section 6(5) of the Determination.

    (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.

18. A condition is considered fully stabilised if[17]:

    [17]    Section 6(6) of the Determination.

    (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.

19. Reasonable treatment is a treatment that[18]:

    [18]    Section 6(7) of the Determination.

    (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.

20. Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.

21. Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.

22. In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

23. While s11(1)(c) of the Determination provides that in assigning an impairment rating “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

    Continuing inability to work

24. As previously detailed in paragraph 15 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a ‘continuing inability to work’. Section 94(2) of the Act requires that:

    (2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b) in all cases—either:

    (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

25. A severe impairment is defined in s94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    27. Section 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

26. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).

    QUALIFICATION PERIOD

27. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the qualification period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[19].

    [19] Part 2, clause 4(1)(d) of the Administration Act.

28. For the purposes of this decision, the day which the Applicant’s claim for DSP was registered with Centrelink was 14 August 2017[20], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 13 November 2017.

    [20]    Exhibit 1, T39, page 223.

29. This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[21].

    [21]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012) [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007) [1]; Fanning and Secretary, Department of Social Services [2014] AATA 447 (4 July 2014) [31].

    CONSIDERATION

30. The Application was heard in Brisbane on 18 November 2019, with the Applicant appearing via telephone, and the Respondent represented in person by Mr Rick McQuinlan. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).

31. In the Applicant’s original claim for the DSP, the following impairments were listed in the medical details section[22]:

    “Lipodoema to the Legs which has caused severe back pains, very heavy & painful legs, knees & ankles. Have had frequent falls.

    Suffers from depression/anxiety.

    Have trouble bending down to put on lower garments .etc. (socks, shoes).

    Unable to stand or walk for long period of times. Need to elevate legs a majority of day due to inflammation and swelling of lower body. (Knees, Legs & ankles). Feet.”  [sic]

    [22]    Exhibit 1, T11, page 115.

32. The Tribunal is satisfied after review of the evidence before it that the Applicant suffered impairments during the qualification period in terms of s94(1)(a) of the Act. This point was accepted by the Respondent[23]. The Tribunal finds the following impairments relevant to this Application:

    (a)Lipoedema

    (b)Chronic Pain (Back, hip, knee and shoulder)

    (c)Mental health condition

    [23]    Exhibit 2, page 7, paragraph 36.

33. The Tribunal notes that further conditions were specified in submitted evidence as at       27 June 2018, which post-dated the qualification period ending 13 November 2017. These conditions were “Endometriosis, Gout, GORD, Abnormal sleep”[24]. In the absence of further evidence for these conditions during the qualification period for this Application, the Tribunal is unable to find these conditions to be fully diagnosed, fully treated or fully stabilised as at the qualification period. Therefore an impairment rating could not be assigned.

    [24]    Exhibit 1, T21, page 140 to 142.

34. For each impairment identified by the Tribunal in paragraph 34, the Tribunal will consider each of these in accordance with s94(1)(b) of the Act, in particular whether each of these impairments meet the relevant provisions contained within the Determination.

    (a)    Lipoedema

35. The Tribunal heard evidence from the Applicant about the misdiagnosis of her Lipoedema condition (also known as Lipedema). This condition was originally diagnosed as “Lymphoedema of legs” by the Applicant’s General Practitioner, Dr Naomi Zeraati; with symptoms of “severe pain, poor mobility, undergoing treatment”, and a prognosis that it was “likely to show considerable improvement within 2 years”, in submitted Medical Certificates ranging in date from 11 May 2016 to 1 September 2017[25].

    [25]    Exhibit 1, T36, pages 165 to 170.

36. The Tribunal notes that in relation to the condition of Lipoedema, Lipoedema Australia[26] has published reference material which states “Doctors often get confused between Lipoedema and Lymphoedema, though in later stages Lipoedema can progress into what is known as Lipo-Lymphoedema”[27]. This is also confirmed by the Victorian State Government Department of Health and Human Services which provides the following reference material, “Sometimes lipoedema is mistaken for excessive lymphoedema, weight gain, obesity or cellulite or is assumed to be due to a lack of exercise”[28].  

    [26]    Lipoedema Australia is a registered charity, also known as Lipoedema Australia Support Society and refers to itself as the national peak body for Lipoedema (   

    [28]   

37. The diagnosis of Lipoedema came from the Applicant’s treating Physiotherapist, Tracey Curtis, in a letter of 27 July 2017, which stated[29]:

    “This letter is to confirm that Lynda Samuels [the Applicant] has attended Physiotherapy Department sine 15^th August 2016 for regular and ongoing treatment of her Lipoedema.

    Lipoedema is a chronic condition that tends to be familial. Signs and symptoms include excess fat deposits particularly in the lower limbs, oedema in the lower limbs, inflammation and pain in lower limbs, tendency to excess bruising in addition to psychological factors.

    In Lynda’s case, her general mobility, ability to stand for prolonged periods and some aspects of personal activities of daily living are compromised.

    Treatment has included advice on skin care, weight management, general exercise, self-massage and the provision of compression garments. Compression garments are an expensive component of treatment that is currently not government subsidized so Lynda has had to self fund them. Treatment is also multi-disciplinary with input from GP, Dietitian, Psychologist and Occupational Therapist.

    As lipoedema is a chronic condition, treatment from all disciplines is aimed at providing education and tools for self management.”

    [29]    Exhibit 1, T8, page 85. A similar letter was submitted in evidence (Exhibit 1, T17, page 136) from the Applicant’s treating Physiotherapist on 8 February 2018 confirming the Applicant has “regular and ongoing treatment of her Lipoedema” since 15 August 2016 (consideration was also given to this letter on the basis of Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (16 November 2011) [28]).

38. The diagnosis of Lipoedema was confirmed in a later Medical Certificate of   10 August 2017 by the Applicant’s treating General Practitioner, Dr Naomi Zeraati, which stated[30]:

    “THIS IS TO CERTIFY THAT

    Miss Lynda Samuels [the Applicant]

    Is receiving medical treatment for lipoedema since 15^th August 2016.

    She is also having treatment for depression and anxiety, which is exacerbated by her poor self body image and low self-esteem secondary to the lipoedema.

    Lynda has been attending the Physiotherapy Department at Ipswich Hospital (Tracey Curtis) for treatment for this since August 2016. I have referred her to a psychologist for help with this.

    She suffers from extreme debilitating back, hip and knee pain also, for which I am organising further imaging and it is likely she will be requiring treatment through orthopaedic specialists in future, altho referrals have not been initiated.

    It would be very difficult for Lynda to perform any duties at work due to her considerable pain and difficulty mobilising.

    As lipoedema is a chronic condition and notoriously difficult to treat, it is highly likely that Lynda will be affected permanently by the pain and poor mobility.” [sic]

    [30]    Exhibit 1, T10, page 89. A similar letter was submitted in evidence (Exhibit 1, T18, page 137) from the Applicant’s treating General Practitioner Dr Naomi Zeraati on 12 February 2018 confirming the Applicant had “regular and ongoing treatment for her Lipoedema” since 15 August 2016 2016 (consideration was also given to this letter on the basis of Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (16 November 2011) [28]).

1. An  Assessment Services Recommendation for DSP medical eligibility was undertaken on 21 August 2017 by a Registered Nurse[31], which stated in regards to the Applicant’s Lipoedema condition:        

   “This condition is not confirmed by a specialist opinion that Ms Samuels has attended reasonable treatment (i.e. pain management program, psychological interventions). For this reason, this condition is not considered fully diagnosed or treated.”

   [31]    Exhibit 1, T12, page 120 to 122.

2. Two subsequent Disability Support Pension Medical Assessment Recommendations were undertaken on 11 July 2018[32] and 8 October 2018[33], both post-dating the qualification period. Both of these assessments took into account additional evidence from the Applicant which post-dated the qualification period. The Tribunal records that for submitted evidence that is dated after the qualification period, the Tribunal relies upon Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley provided at paragraph 33:

   “… 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 relevant period is not directly relevant to the Tribunal’s decision”.

   [32]    Exhibit 1, T5, page 78 to 80.

   [33]    Exhibit 1, T26, pages 147 and 148.

3. In relation to the diagnosis of a medical condition, the Tribunal refers to the relevant Table within the Determination, which is Table 3 – Lower Limb Function[34]. The introduction to Table 3 provides:

   “ …

   The diagnosis of the condition must be made by an appropriately qualified medical practitioner…

   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

   o   …

   o   a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);

   o   a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact…”.

   [34]    The Determination, page 17.

4. Part 1, section 3 of the Determination[35] provides that:

   “appropriately qualified medical practitioner means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition”.

   [35]    The Determination, page 3.

5. Lipoedema is described as a:

   “chronic progressive disease characterized by abnormal fat distribution resulting in disproportionate, painful limbs. It almost exclusively affects women, leading to considerable disability, daily functioning impairment, and psychosocial distress… Polygenic susceptibility combined with hormonal, microvascular, and lymphatic disorders may be partly responsible for its development… Best management includes a multidisciplinary approach, involving vascular medicine specialists, plastic surgeons, obesity and endocrinology specialists, and physiotherapists”[36].

   [emphasis added]

   [36]    Review, Clinical Trials and Investigations, “Lipedema: A Call to Action!”, G. Buso, M. Depairon, D. Tomson, W. Raffoul, R. Vettor, and L. Mazzolai, 10 October 2017 (

6. In regards to an appropriately qualified medical practitioner (or medical specialist) for the diagnosis of Lipoedema, Lipoedema Australia states that this would come from a Lipoedema specialist or vascular specialist[37].

   [37]   

7. The Tribunal finds that based on submitted evidence, the Applicant’s Lipoedema was not fully diagnosed, as there was no confirmation of diagnosis by an appropriately qualified medical practitioner (medical specialist) as required by Table 3 – Lower Limb Function, in the Determination. The Determination is clear in relation to the use of the Applicant’s treating Physiotherapist’s letter of 27 July 2017, that this be used when “confirming the functional impact”[38] in applying an Impairment Rating.

   [38]    The Determination, page 17.

8. As the Tribunal has found that the Applicant’s Lipoedema condition was not fully diagnosed by an appropriately qualified medical practitioner prior to or during the qualification period for this Application, the Tribunal is unable to assign an impairment rating for the Applicant’s Lipoedema.

   (b)   Chronic Pain (Back, hip, knee and shoulder)

9. A primary symptom of the Applicant’s Lipoedema has been reported as “debilitating back, hip and knee pain” as noted by her treating General Practitioner Dr Naomi Zeraati[39]; and “inflammation and pain in lower limbs” by treating Physiotherapist, Tracey Curtis[40]. This symptom has also been reported in various medical certificates which have been submitted in evidence post-dating the qualification period[41], to which the Tribunal refers to Fanning and Secretary, Department of Social Services [2014] AATA 447, previously outlined in paragraph 42 of this Decision.

   [39]    Exhibit 1, T10, page 89.

   [40]    Exhibit 1, T8, page 85.

   [41]    Exhibit 1, T4, page 77; Exhibit 1, T20, page 139; Exhibit 1, T23, page 144;  Exhibit 1, T24, page 145; Exhibit 1, T31, page 160; Exhibit 1, T32, page 161; Exhibit 1, T33, page 162; Exhibit 1, T34, page 163; and Exhibit 1, T35, page 164.

10. An Assessment Services Recommendation for Disability Support Pension medical eligibility was undertaken on 21 August 2017 by a Registered Nurse[42], which stated in regards to the Applicant’s Chronic Pain (back, knee, hip), “This condition is noted as not confirmed by a clinical specialist opinion or that Ms Samuels has attended reasonable treatment (i.e pain management program, psychological interventions). For this reason, this condition is not considered fully diagnosed or treated”.

    [42]    Exhibit 1, T12, pages 120 to 122.

11. A referral was made for the Applicant to seek treatment at a pain management clinic, with a consultation occurring on 27 June 2018 with the Metro South Health Persistent Pain Management Service[43], post-dating the qualification period for this Application by more than six months.

    [43]    Exhibit 1, T21 page 140 to 142.

12. The Tribunal refers to s6(9) of the Determination[44], in regards to Assessing functional impact of pain where it provides:

    “(9)    There is no Table dealing specifically with pain and when assessing pain the   following must be considered:

    (a)    acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

    (b)    chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

    (c)    whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).”

    [44]    The Determination, page 8.

13. The relevant Table within the Determination for assessing the Applicant’s Chronic Pain in relation to their back, hip and knee is Table 3 – Lower Limb Function. Relevant excerpts of this Table have previously been outlined in paragraph 43 of this Decision. Diagnosis of the Applicant’s Chronic Pain in regards to their back, hip and knee “must be made by an appropriately qualified medical practitioner”, as outlined in Part 1 section 3 of the Determination[45].

    [45]    The Determination, page 3.

14. There was no submitted evidence of a referral having been made, or appointment having been attended with a specialist prior to or during the qualification period of this Application. In the absence of a diagnosis from an appropriately qualified medical practitioner (medial specialist) prior to or during the qualification period for the Applicant’s Chronic Pain in regards to her back, hip and knee, the Tribunal finds that this condition has not been fully diagnosed.

15. As the Tribunal has found that the Applicant’s Chronic Pain (back, hip and knee) was not fully diagnosed, an impairment rating could not be assigned.

16. The relevant Table within the Determination for assessing the Applicant’s Chronic Pain in relation to her shoulder is Table 2 – Upper Limb Function[46] which provides:

    “The diagnosis of the condition must be made by an appropriately qualified medical practitioner

    …

    Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

    o   …

    o   a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);

    o  a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact…”.

    [46]    The Determination, page 15.

17. The Tribunal records Medical Certificates submitted in evidence from the Applicant’s treating General Practitioner, Dr Naomi Zeraati recording “shoulder pain” from                   1 May 2018, post-dating the qualification period for this Application by more than five months.

18. In the absence of a diagnosis from an appropriately qualified medical practitioner (medical specialist) prior to or during the qualification period for the Applicant’s Chronic Pain in regards to their shoulder, an impairment rating could not be assigned.

    (c)  Mental health condition

19. Submitted evidence to the Tribunal included:

    ·A referral from the Applicant’s treating General Practitioner Dr Naomi Zeraati of 26 July 2017, to Bronwyn Morris, Accredited Mental Health Social Worker after the Applicant presented with symptoms of, “depressed, upset with body image. anxiety about this”[47]. [sic]

    ·Medical Certificate of 10 August 2017 from treating General Practitioner Dr Naomi Zeraati stating, “She is also having treatment for depression and anxiety, which is exacerbated by her poor self body image and low self-esteem secondary to the lipoedema”[48].

    ·An Assessment Services Recommendation for DSP medical eligibility was undertaken on 21 August 2017 by a Registered Nurse, which stated, “This condition is noted as not confirmed by a clinical psychologist or psychiatrist. There is no history of reasonable interventions including psychological counselling. For this reason, this condition is not considered fully diagnosed or treated”[49].

    ·Employment Services Assessment Report of 9 October 2017 by a Registered Psychologist which stated “Customer reports she has not followed this referral up as yet. She confirmed she is not taking any medications for this condition”[50].

    ·

    A review letter of 24 November 2017 from Bronwyn Morris, Accredited Mental Health Social Worker, which stated that the date of the first appointment was on

    
    

    8 November 2017, with a referral having been made on 26 July 2017 (noting the final day of the qualification period for this Application is 13 November 2017)[51].

    [47]    Exhibit 1, T6, page 81.

    [48]    Exhibit 1, T10, page 89.

    [49]    Exhibit 1, T12, page 121.

    [50]    Exhibit 1, T15, page 128.

    [51]    Exhibit 1, T16, page 132 to 135. The Tribunal notes that this report has been provided outside the qualification period (ending on13 November 2017), but as the report relates to treatment which occurred during the qualification period, consideration was given on this basis (refer Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (16 November 2011) [28]).

20. Table 5 of the Determination[52]  expressly stipulates that the diagnosis of a mental health condition (or impairment) “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)”.

    [52]    The Determination, page 22.

21. In the absence of evidence from the Applicant of a diagnosis made by a psychiatrist or evidence from a clinical psychologist prior to or during the qualification period, the Tribunal finds that the Applicant’s mental health condition was not fully diagnosed. Therefore, an impairment rating could not be assigned for the Applicant’s mental health condition.

22. None of the identified impairments can be assigned impairment ratings under s94(1)(b) of the Act.

23. There is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.

    DECISION

24. 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 Senior Member Belinda Pola

    ……………[Sgd]………………

    Associate

    Dated: 3 December 2019

    Date of hearing:  18 November 2019

    Applicant:  Ms Lynda Tralonga (via telephone)

    Solicitor for Respondent:       Mr Rick McQuinlan

    Department of Human Services

    ‘Annexure 1 – Exhibit Register’

Exhibit

Number

Description

1

Section 37 T Documents, paged 1 to 251, received 3 June 2019.

2

Statement of Facts, Issues and Contentions, with 1 Annexure regarding the periods of Active Participation in a Program of Support, paged 1 to 19, dated                       25 October 2019.

3

Letter from daughter of the Applicant, 1 page, dated 14 June 2019.

4

GP Mental Health Care Plan Letter from Dr Toan Nguyen to Dr Katrina Tiongco,      2 pages, dated 6 June 2019.

5

GP Mental Health Care Plan Letter from Dr Toan Nguyen to Dr Katrina Tiongco,      2 pages, dated 19 June 2019.

6

GP Mental Health Care Plan Letter from Dr Toan Nguyen to Dr Katrina Tiongco,       2 pages, dated 12 September 2019.

7

Centrelink Form titled ‘Information about participation in a program of support’,         5 pages dated 17 June 2019.

8

Letter from Physiotherapist, 1 page, dated 17 July 2019.

9

Medical Certificate from Goodna Family Medical Centre, 1 page, dated                    17 July 2019.

10

Screen capture of online article titled ‘Why your fat legs might not be your fault’ (author not identifiable), 1 page, received 24 June 2019.

11

National Pain Strategy, 12 pages; and International Association for the Study of Pain “Interdisciplinary Chronic Pain Management: International Perspectives”, December 2012, 6 pages.