Tricarico and Secretary, Department of Social Services (Social services second review) - [2021] AATA 723

Tricarico and Secretary, Department of Social Services (Social services second review) [2021] AATA 723 (31 March 2021)
Division:GENERAL DIVISION
File Number:2020/3645
Re:Joseph Tricarico
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:31 March 2021
Place:Brisbane

The decision under review is affirmed.
.............[SGD]...........................................
Member D Mitchell
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 Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
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; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Merson and Secretary, Department of Social Services [2021] AATA 90
Tlonan and Secretary, Department of Social Security [1997] AATA 30

REASONS FOR DECISION
Member D Mitchell
31 March 2021
INTRODUCTION

On 10 October 2019, Mr Joseph Tricarico (the Applicant) lodged a claim for the disability support pension (DSP).[1] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work to include: “prolapse disc spondylosis, multi-level disc bulge, anxiety, depression, carpel tunnel, suicidal ideation, insomnia and psychosis.”[2]
[1] Exhibit 1, T Documents, T47, pages 200-211, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents, T47, pages 204-205, Claim for Disability Support Pension.
The Applicant’s claim was rejected on 25 November 2019,[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[3] Exhibit 1, T Documents, T50, pages 218-219, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision and on 27 November 2019 an Authorised Review Officer (ARO) affirmed the decision. The ARO found that the Applicant’s spinal and mental health conditions were fully diagnosed however were not fully treated and fully stabilised.[4]
[4] Exhibit 1, T Documents, T54, pages 224-229, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 29 May 2020, the SSCSD affirmed the decision to refuse his claim for DSP.[5] The SSCSD found that the Applicant’s:
(a)spinal condition was fully diagnosed but was not fully treated and fully stabilised;
(b)bilateral carpal tunnel syndrome was fully diagnosed but was not fully treated and fully stabilised; and
(c)mental health conditions were fully diagnosed, fully treated and fully stabilised and were capable of being assigned an impairment rating of 10 points under Table 5 of the Impairment Table.
[5] Exhibit 1, T Documents, T2, pages 7-20, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 8 June 2020.[6]
[6] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.
On 22 March 2021, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[7]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[8] and
3.does the Applicant have a continuing inability to work?[9]
[7]     Section 94(1)(a) of the Act.
[8]     Section 94(1)(b) of the Act.
[9]     Section 94(1)(c) of the Act.
Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[10]
[10] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[11] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.
[11] Sections 6(3) and (4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or planned in the next two years.[12]
[12] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[13]
(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.
[13]    Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[14]
[14] Section 6(7) of the Determination.
The Impairment Tables 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.[15] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[16]
[15] Section 6(2) of the Determination.
[16] Section 8(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or 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 POS within the next 2 years.
A person’s impairment is considered to be 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.[17]
[17] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[18]
[18] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[19]
[19] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 10 October 2019, being the date, the Applicant lodged his claim for DSP, and ends 13 weeks later on 9 January 2020. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[20] The Respondent considers the Applicant’s impairments for the purpose of the claim for DSP in question consist of spinal (being cervical spine degeneration with associated neck and upper limb pain),[21] upper limb (being bilateral carpal tunnel syndrome)[22] and mental health (being major depression and anxiety)[23] conditions.
[20]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 40.
[21]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-10, paragraphs 41-47.
[22]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraphs 48-53.
[23]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 11-16, paragraphs 54-64.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and
2. if so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At Hearing, the Applicant gave evidence under affirmation. The Tribunal considers that the Applicant was open with his answers to the questions he was asked and was forth coming in providing his evidence.
Spinal condition
Based on the medical evidence before the Tribunal there is no doubt that the Applicant’s spinal condition consisting of cervical spine degeneration with associated neck and upper limb pain was fully diagnosed at the Relevant Period. This point is not in contention.[24] The issue arises as to whether the condition was fully treated and fully stabilised during the Relevant Period.
[24] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-8, paragraph 41.
The Respondent contended that the Applicant’s spinal condition was not fully treated and fully stabilised during the Relevant Period and relied on the following summary of the available medical and other evidence:[25]
[25]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-10, paragraph 42.
(a)       In his report dated 3 July 2014 Dr Vishakantegowda reported that current treatment for the Applicant’s condition was ‘celebrex 200mg’ and ‘panadol osteo’ and that future/planned treatment included ‘specialist referral’, ‘analgesia’ and ‘pain management’ (T12, p86).
(b)       In his report dated 13 August 2015 Dr Doig reported that the Applicant was ‘currently using Endep, Diazepam and anti-inflammatory tablets’. In terms of further treatment Dr Doig reported that ‘it is my opinion that his current treatment is inappropriate. He needs further investigation by the way of nerve conduction studies and an up to date MRI scan of the cervical spine, assessment by a pain specialist and assessment by a psychologist/psychiatrist’ (T46, p195).
(c)       In the Employment Services Assessment Report dated 29 April 2016 the assessor reported after a face to face assessment with the Applicant that planned treatment included ‘neurosurgeon has recommended surgery but he is still awaiting approval from insurer’ (T21, p117).
(d)       In his report dated 16 August 2016 Dr J S Pathak provided the earlier reporting and recommendations of Neurosurgeon and spinal surgeon Professor Richard Bittar dated 20 November 2014. Dr Bittar’s summary of the Applicant’s condition and treatment was that ‘the onset of his symptoms occurred in a gradual fashion during the course of his very heavy workplace activities over a several month period in early to mid 2012. He did not have any specific treatment, apart from some analgesic medications and was reviewed by a physiotherapist who could not assist.’
Dr Bittar also recommended further investigation of the Applicant, with these investigations including ‘some flexion/extension cervical spine x-rays to assess for instability’, ‘a repeat MRI cervical spine’ and ‘a cervical spine SPECT scan, specifically looking for increased radiotracer uptake’ (T22, p123).
(e)       In his medico-legal report dated 19 August 2016 Dr Dohrmann outlined the Applicant’s self-report regarding the treatment for his condition up to that point. Dr Dohrmann stated ‘Mr Tricarico said that he attends a general practitioner as required. He said his current medication is limited to Panadol Osteo, approximately 6 tablets per day, and nurofen used mainly at night. He (the Applicant) said that his general practitioner recently Temazepam, mirtazapine, Endep, Celebrex and Lyrica because of the abdominal symptoms that he had reported to the general practitioner and which are described above. He said he is receiving no other form of treatment at present’.
When asked to comment on whether further treatment or investigations were required Dr Dohrmann opined that ‘in my opinion it would be appropriate for Mr Tricarico to be referred to a treating neurosurgeon with a view to an up to date MRI scan and an evaluation of possible treatment options for his neck condition’ (T23, p130).
(f)        In the Job Capacity Assessment Report dated 31 October 2016 the assessor reported after a face to face assessment with the Applicant that past treatment for the Applicant’s condition included ‘physiotherapy (ceased due to reportedly being advised that until surgery, physiotherapy is unlikely to be beneficial, extensive medical investigations including scans (MRI) and specialist review, multiple pain medications’.
In terms of future treatment the assessor wrote that ‘the client reported that surgery has been recommended, although this is not documented in the medical evidence. The client reported that surgery has not occurred to date due to a pending insurance/WC claim, and anticipates that we will undergo cervical spine surgery within the next six months’ (T25, p142).
(g)       In their report dated 2 January 2018 Dr Amrita Varma reported that the Applicant presented to The Royal Melbourne Hospital with ‘longstanding neck pain – difficulties in past 6 years accessing medical care due to legal issues with workers compensation claim. Saw physio 4 years ago but was not helpful as was told nothing could be done for him, has not been seen since’.
In terms of future treatment Dr Varma requested the Applicant’s GP refer the Applicant to a physiotherapist for review and ongoing management noting ‘for multifactorial cervical spine/musculoskeletal pain a good physiotherapy plan is an essential cornerstone for improvement’. Dr Varma also referred the Applicant to ‘outpatient neurosurgery for further assessment as pt keen to explore further surgical options however have discussed limited role of surgery’ (T29, p153).
(h)       In the appointment confirmation dated 4 January 2018 the Applicant was advised that he had an appointment with The Royal Melbourne Hospital neurosurgery clinic scheduled for 30 July 2018 (T31, p157).
(i)        In a medical certificate dated 28 March 2019 Dr Aditya Vitta stated that past treatment for the Applicant’s condition was ‘reports trying all pain meds but not helping’, current treatment included ‘not meds’ and that planned treatment included ‘referred to Royal Brisbane Hospital’ (T40, p179).
(j)        The AAT1’s record of the Applicant’s self-reported evidence given on 29 May 2020 was that the Applicant ‘was initially treated with a range of analgesic medications and was referred to physiotherapists’ and that ‘the physiotherapy treatments were not effective’.
In terms of specialist referral and consultation the AAT1 recorded the Applicant’s evidence as ‘He had been referred to a neurosurgeon at the Royal Melbourne Hospital and had an appointment to see someone there in late July 2018, but he was discouraged from attending this appointment by his lawyers who told him that this might affect his compensation claim. Since moving to Queensland, he had been provided with another referral to the Royal Brisbane Hospital by his current general practitioner, but he had not pursued this either; it was too far for him to drive to Brisbane for an appointment from his current residence.
In terms of other treatment options the AAT1 also recorded the Applicant’s evidence as ‘Mr Tricarico has not pursued further treatment options
(including enrolment in or attendance at a pain management program) for a comprehensive and systematic overview and treatment of the chronic pain syndrome impacting his neck and upper limbs’ (T2, p7).
The Respondent contended that as both Dr Doig and Dr Dohrmann recommended the Applicant have his spinal condition reviewed by a neurosurgeon and a pain specialist for treatment options and there is no evidence that he has done so, nor has he engaged in further physiotherapy review, that subsequently the condition cannot be considered fully treated and fully stabilised.
At Hearing the Applicant told the Tribunal:
·He has not attended a pain management clinic.
·He does not think that a pain management clinic or further physiotherapy will change anything, there is no way to fix his condition.
·He did not attend the specialist appointment in Melbourne on advice from his lawyers.
·He did not attend the specialist appointment in Brisbane as he could not get there due to the expense of travelling between Bundaberg and Brisbane and Centrelink would not assist him with the costs.
·He has had advice not to have surgery as it would be high risk and would be a quick fix but not a long lasting fix, there is no guarantee it would work and further surgery would be likely.
·He manages his pain with Nurofen and Panadol Osteo.
·He stopped taking other medication as it had dangerous side effects. He had two seizures in Melbourne and was frightened, so he stopped taking the medication. Then the seizures stopped.
·Physio has told him that it will not help.
·He wakes up with pain and that triggers his anxiety.
·He could not sit down for 30 minutes as his foot, gluts and hands get numb.
·He could drive for short distances.
·He properly could not sit down for 10 minutes.
·He does not hang washing on the line or wash his hair – he could if he had to but he would have to deal with the pain afterwards.
·He cannot turn his neck without moving his trunk.
·He can pick up a light object from a table.
·No other treatment will help.
·Anything he needs to do he can do, but he has to deal with the pain afterwards. He restricts shopping to once a fortnight and afterwards spends 3 days in pain.
·The pain causes bad, violent thoughts.

On cross-examination the Applicant told the Tribunal:
·He had asked for help from Centrelink in relation of the cost to travel to Brisbane to see the specialist at the Royal Brisbane Hospital however they said no. He was not aware of the Queensland Government patient travel scheme prior to it being raised at the Hearing.
·When asked whether he would be prepared to attend an outpatients clinic to be reviewed by a neurosurgeon who could recommend treatment, no he would not.
·When asked whether he would be open to pursuing physiotherapy or a pain specialist clinic, no he would not.
The Tribunal notes that a letter from Dr Emma Merrick, registrar/PHO dated 15 August 2020 was addressed to the Applicant’s general practitioner after the Applicant had presented to the emergency department of the Bundaberg Base Hospital with an acute worsening of his cervical radiculopathy. Dr Merrick provided:[26]
He advises his has previously considered surgery I have discussed with him the risks and benefits of surgery and how long term it may not improve his symptoms. However I cannot see his MRI so I am unsure of the extent of his disc disease.
I understand he has previously undergone physiotherapy and not found it of much help, however I feel that he would benefit from further physiotherapy.
Please review him and repeat his examination and assess as appropriate.
[26] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment A, Report from Bundaberg Base Hospital Emergency Department.
At Hearing the Applicant contended that his spinal condition was fully diagnosed, fully treated and fully stabilised. He said he has been to 3 or 4 physiotherapists and every time the result is the same, nothing changes, the condition cannot be fixed. The Applicant contended that physiotherapy and pain management is pointless. The Applicant did not provide any corroborating medical evidence to support his contentions.
Based on the information before it, contentions made by the Respondent and evidence provided by the Applicant, the Tribunal is satisfied that the Applicant’s spinal condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period. The evidence before the Tribunal is that the Applicant has not engaged with a pain management program or adequate physiotherapy, nor has he been reviewed by a pain specialist or neurosurgeon and does not intend to do so, despite these treatment options having been recommended. There is no evidence before the Tribunal that:
(a)such recommended treatment is unreasonable; or
(b)undertaking such specialist review and further recommended treatments would not have resulted in significant functional improvement within the two years preceding the claim for DSP; or
(c)there any compelling reason for the Applicant not to undertake such treatment.
Consequently, the Applicant’s spinal condition is not considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Upper limb condition
In medico-legal reports dated 18 March 2014 and 16 August 2016, Dr J S Pathak diagnosed the Applicant with ‘bilateral carpal tunnel syndrome’.[27]
[27] Exhibit 1, T Documents, T9, page 74, Medico-legal Report authored by Dr J S Pathak and T22, page 123, Medico-legal Report authored by Dr J S Pathak.
In a medico-legal report dated 19 August 2016, Dr Dohrmann provided:[28]
…. Nerve conduction studies performed on 04.09.2012 were noted to reveal evidence of bilateral carpal tunnel syndrome …..
…. It is likely that [the Applicant] also has symptomatic bilateral carpal tunnel syndrome, separate from any condition affecting the cervical spine….
…. [the Applicant] confirmed that he has never been referred for a surgical opinion in relation to carpal tunnel.
[28] Exhibit 1, T Documents, T23, page 130, Medico-legal Report authored by Dr Peter Dohrmann.
The Respondent accepts that the Applicant’s upper limb condition of bilateral carpal tunnel syndrome was fully diagnosed in the Relevant Period however contended that the condition was not fully treated and fully stabilised.[29]
[29] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraphs 48-53.
At Hearing, the Applicant told the Tribunal that he has been told by a specialist that he does not have bilateral carpal tunnel syndrome but rather the pain he experiences in his arms and hands is all related to his back and neck condition. The Applicant said that the bilateral carpal tunnel syndrome can be disregarded.
Based on the medical evidence before it, the contentions of the Respondent and evidence provided by the Applicant, the Tribunal finds that the Applicant’s upper limb condition cannot be considered permanent for the purposes of applying the Impairment Tables.
Mental health condition
Throughout the medical evidence before the Tribunal there are many references to the Applicant having major depression and anxiety since 2012 with the onset coinciding with the onset of his spinal condition. It is not disputed that the Applicant’s mental health condition comprising of major depression and anxiety was fully diagnosed at the Relevant Period. Dr Scott Jenkins, psychiatrist in a report dated 8 October 2019 confirmed the diagnosis.[30] This point is not in contention.[31] The issue arises as to whether the condition was fully treated and fully stabilised during the Relevant Period.
[30] Exhibit 1, T Documents, T48, page 215, Medical Report authored by Dr Scott Jenkins.
[31] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraph 54.
In excerpts of a letter provided by the Applicant providing a date of psychiatric examination as 11 September 2014 which appears to have been authored by Dr Dielle Felman, the following was provided in response to a set of questions:[32]
In my opinion, [the Applicant] meets the criteria for a Major Depressive Episode. There are also some concerns regarding potential underlying psychotic symptoms although these could not be effectively evaluated at today’s assessment due to [the Applicant’s] guardedness.
….
In my opinion, [the Applicant] is likely to have at least some ongoing psychiatric symptoms while he continues to experience chronic pain and impairment.
….
In my opinion, both [the Applicant’s] psychiatric condition and perception of pain and disability would have an appreciable impact on his capacity for employment at this time. In my opinion, his physical and psychiatric conditions likely impact on each other in a vicious cycle (i.e. pain and disability fuels depression and depression fuels experience of pain and disability).
….
[The Applicant] has engaged in limited treatment for his condition which has included a trial of only one antidepressant and a few sessions of psychological therapy. (His Endep was not an antidepressant does.)
[32] Exhibit 1, T Documents, T35, pages 163-166, Medical Report with no clear author dated 11 September 2014.
In a letter dated 8 October 2019, Dr Jenkins provided:[33]
[The Applicant] has the confirmed diagnosis of major depression with anxiety.
He has previously been treated with multiple pain relivers for his cervical and lumbar spine pain, multiple hospital attendances, and multiple use of anti depressants in the past. All medications produced severe side effects.
[The Applicant] has a full range of symptoms consistent with major depression with anxiety.
His symptoms are not likely to improve with additional treatment.
His symptoms are severe and prevent him from working or training in any capacity.
[The Applicant’s] condition of major depression with anxiety has been fully diagnosed, he has been fully treated and he is unable to work in any capacity.
[33] Exhibit 1, T Documents, T48, page 215, Medical Report authored by Dr Scott Jenkins.
In a further letter dated 27 November 2019, Dr Jenkins added:[34]
[The Applicant] has clearly tried to work on past occasions and failed twice. He has been reviewed by a physiotherapist; he has been reviewed by a psychologist. He has been reviewed by a pain specialist. He also has had psychiatric treatment. All of the treatment options for this man have been exhausted and no additional treatment is likely to be beneficial.
[34] Exhibit 1, T Documents, T51, page 220, Medical Report authored by Dr Scott Jenkins.
In Centrelink Medical Certificates dated 27 November 2019,[35] 11 February 2020,[36] 14 May 2020[37] and 27 August 2020[38] Dr Jenkins advised that the Applicant’s major depression with anxiety is a ‘temporary exacerbation of a permanent condition’ and the symptoms will affect the Applicant’s capacity to work or study for 3-12 months. The current treatment is listed as ‘psychiatric treatment’.
[35]    Exhibit 1, T Documents, T52, page 221, Medical Certificate completed by Dr Scott Jenkins.
[36]    Exhibit 1, T Documents, T53, page 223, Medical Certificate completed by Dr Scott Jenkins.
[37]    Exhibit 1, T Documents, T57, page 233, Medical Certificate completed by Dr Scott Jenkins.
[38]    Exhibit 7, Medical Certificate completed by Dr Scott Jenkins.
In a letter dated 22 April 2020, Dr Jenkins provided:[39]
[39]    Exhibit 1, T Documents, T56, page 232, Medical Report authored by Dr Scott Jenkins.
I provided a letter on 27 November 2019 for [the Applicant], indicating his diagnosis as well as additional physical symptoms.
I also noted a wide range of treatments in the past including a variety of allied health and specialist care as well as the use of medication, none of which have been no benefit.
He meets the criteria for 20 point deficit due to the following:
-    Difficult travelling in public
-    Social withdrawal
-    Impaired concentration
-    Severe disturbance of thought and behaviour
-    Needs support and care.
As noted in my letter in November, there is no chance that he is likely to improve with any additional treatment.
In a letter dated 28 October 2020, Dr Jenkins provided:[40]
Attached is a letter which was provided on 22 April 2020.
In addition to this, it is clear that [the Applicant] has a confirmed diagnosis of Major Depression with Anxiety as well as Cervical Spine Spondylosis.
He clearly would have severe difficulties with self-care and independent living due to high levels of anxiety and agitation; difficulty with social and recreational activities and travel due to social withdrawal; difficulties with interpersonal relationships due to severe irritability; difficulty with concentration and task completion due to psychomotor agitation and restlessness; difficulty with behaviour, planning, and decision making due to severe symptoms of Major Depression with Anxiety; difficulty with work and training capacity as he would be deemed unfit by any workplace due to the severity of his symptoms.
All of this would have been true of his mental health condition on or before 28 January 2020.
[40] Exhibit 5, Medical Report authored by Dr Scott Jenkins.
At the request of the Respondent, a Health Professional Advisory Unit (HPAU) report dated 18 January 2021 was provided by a clinical psychologist in relation to the Applicant’s mental health condition.[41] Having engaged in a review of the medical evidence provided by the Applicant and having phone contact with Ms Raelene Lesnoiwska, clinical psychologist, Ms Erica Olsen, clinical psychologist, Bundaberg Community Mental Health and a fax response from Dr Jenkins the HPAU formed the opinion that the Applicant’s mental health condition was fully diagnosed but was not fully treated and fully stablished during the Relevant Period.[42]
[41] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B, HPAU Opinion.
[42] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B, HPAU Opinion, pages 1-16.
The HPAU report provided the following in relation to the issue of whether the Applicant’s mental health condition was fully treated and fully stabilised during the Relevant Period:[43]
[43]    Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B, HPAU Opinion, pages 5-7.
2.        Were [the Applicant’s] major depression and anxiety conditions fully treated and fully stabilised during the qualification period?
Please consider and comment on the following:
a.Had [the Applicant] received reasonable treatment for his major depression and anxiety during the qualification period?
The major depression and anxiety were not considered fully treated and stabilised during the qualification period.
Dr Pathak (medical practitioner, 1.7.13) noted mirtazapine use in both July 2013 and February 2014. [the Applicant] advised at job capacity assessment (Annette, 16.7.14) that he was still taking medication. However, this was inconsistent with medical verification from Dr Vishakantegowda (general practitioner, 3.7.14) who confirmed a prior 6 month period of mirtazapine use in 2013, but no current usage.
Dr Felman (11.9.14) opined that [the Applicant] had engaged in limited treatment which had included a trial of only one antidepressant and a few sessions of psychological therapy, noting that prior endep use was not at an antidepressant dose.
Mr Dohrmann (19.8.16) reported that [the Applicant] had disclosed that his general practitioner had recommended ceasing temazepam, mirtazapine, endep, celebrex and lyrica due to abdominal symptoms. The author notes that excluding the mirtazapine, the other medications are usually prescribed for pain.
Dr Yilmaz (general practitioner, 27.9.17) noted prior endep use but no planned treatment. Dr Yilmaz (1.12.17) listed treatment to include endep, lyrica, lovan and seeing psychologist, however it is unclear whether these were past, current or planned and if historical, whether based on self report or actually confirmed.
Pharmaceutical benefits scheme patient summary (1.1.16 to 27.11.20) indicated that 28 tablets of fluoxetine 20 mg (a selective serotonin reuptake inhibitor, SSRI) were dispensed on only two occasions (3.10.17 and 8.12.17) during this period.
[the Applicant] disclosed at employment services assessment (Ingrid, 22.2.19) that he refused to take antidepressant medication as he had tried them before and they made him worse. Dr Vitta (general practitioner, 28.3.19) reported that [the Applicant] had trialled multiple antidepressants which had not worked and he was not keen for more.
Dr Aziz (general practitioner, 25.7.19) advised of current referral to psychiatrist and mental health unit. Dr Vitta (8.8.19) advised that [the Applicant] had been reviewed by the acute mental health unit and advised to pursue a psychiatric referral. Dr Vitta referred to [the Applicant] on 8.8.19 and noted no current long term medications, having previously tried endep. This did not support Dr Vitta’s prior statement of having trialled ‘multiple antidepressants’. Dr Vitta was unable to be reached by the author for further clarification.
Ms Somers (clinical nurse, 31.7.19) confirmed [the Applicant] had presented to Bundaberg community mental health requesting a clinical psychologist or psychiatrist review to assist with his claim for DSP, making it clear in the assessment that he wanted the review as he could not work because of his prolapsed discs. He continued to refuse medication. His request was considered outside the scope of mental health services and he was referred to Psych2U program for psychiatric assessment.
Dr Jenkins (8.10.19) advised that [the Applicant] had used antidepressants in the past with severe side effects and that his symptoms were not likely to improve with additional treatment. Dr Jenkins (27.11.19) noted previous treatment of multiple antidepressants with severe side effects. He had been reviewed by psychologist, pain specialist and also had psychiatric treatment. All treatment options had been exhausted.
Dr Jenkins (11.1.21) confirmed to the author that he had only met with [the Applicant] on one occasion during the qualification period, with his second appointment occurring on 11.2.20. Dr Jenkins advised that his report of treatment history was based on statements provided by [the Applicant] during his initial appointment and further verification or specific details were not available.
[the Applicant] disclosed at employment services assessment (Kylie, 20.6.14) that he had commenced sessions with a psychologist and attended one session to date. A month later, he reported at job capacity assessment (Annette, 16.7.14) that he had attended 5 to 6 sessions of counselling with a general psychologist, but had not seen a psychiatrist or clinical psychologist.
Medicare Patient History Report (1.1.16 to 27.11.20) indicated contact with psychologist, Ms Lesniowska in 2017. The author spoke with Ms Lesniowska on 3.12.20. She confirmed that [the Applicant] attended 5 sessions from October 2017 to February 2018, however terminated treatment when he advised that he required referral to a clinical psychologist for Centrelink purposes. Ms Lesniowska explained that while she was now a clinically endorsed psychologist, at the time of consulting with [the Applicant], had not yet obtained her clinical endorsement. Ms Lesniowska advised that she had commenced some work within an Acceptance and Commitment Therapy framework including mindfulness, relaxation and grounding exercises and [the Applicant] was responding well. She also commenced some behavioural activation, pleasant events scale and sleep hygiene. She observed that [the Applicant] was an ‘over thinker’ with poor insight and judgement and an external locus of control. He was negative in his thought process and was feeling stuck. She did not get the opportunity to do any cognitive work and considered his treatment incomplete and prematurely terminated. She confirmed that she bulkbilled sessions so [the Applicant] did not have an out of pocket expense.
The author spoke with Ms Olsen, clinical psychologist on 3.12.20. Ms Olsen advised that despite being referred for 6 sessions, [the Applicant] only attended one session on 18.3.19. She explained that [the Applicant] was advised that he would not receive a report after an initial session and was expected to engage in therapy for a period of time before his condition could be considered treated. [The Applicant] was bulk billed for his initial session and then offered a concessional rate ($25 out of pocket) for future sessions. [The Applicant]advised that he did not want to return unless he was bulkbilled, so Ms Olsen gave him the details of Anglicare and Centacare in the Bundaberg region who could offer free services but was unsure if he took up such suggestion. Ms Olsen opined that he required further treatment, both psychological and pharmacological, and was not yet treated.
The author notes that according to Medicare Patient History Report (1.1.16 – 27.11.20) [the Applicant] had only attended one appointment with Dr Jenkins up to completion of the qualification period and did not attend again until 11.2.20.
Hence, based on the available evidence it appears [the Applicant] trialled mirtazapine (an atypical antidepressant) for a 6 month period, was prescribed endep at insufficient antidepressant dosage (most likely for his physical concerns) and since 2016 only dispensed fluoxetine (an SSRI) on two separate occasions in 2017, indicating he was not using such daily. While he disclosed that he had trialled multiple antidepressants with significant side effects, this appears based on self report rather than confirmation of prescribed medications, dosages and documentation of specific side effects.
From a psychological perspective, it appears that when [the Applicant] engaged with Ms Lesniowska for 5 sessions, he was beginning to make progress, however ceased treatment prematurely and appears not to have engaged again consistently, despite services being offered to him.
At the end of the qualification period, [the Applicant] had only attended one appointment with Dr Jenkins, so it is unlikely that sufficient ‘psychiatric treatment’ would have been provided in an initial session.
Dr Jenkins (11.1.21) explained that he did not think it reasonable to continue with any pharmacotherapy on the basis of [the Applicant] reporting at his initial appointment that he had trialled “multiple medications with significant side effects.” He did not provide any other reason why further treatment could not be pursued.
Hence, while [the Applicant] may have made attempts to commence reasonable treatment, not all reasonable treatment was completed by the end of the qualification period, without available justifiable evidence why further reasonable treatment could not be pursued or was unlikely to benefit.
b.Is there any further treatment you would consider appropriate for [the Applicant] to undertake in respect of that condition (whether or not recommended by his treating team)?
The Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for mood disorders (2015) recommend that major depressive disorder should be initially treated with psychological therapy or pharmacotherapy (with first line treatments including selective serotonin reuptake inhibitors (SSRIs) and serotonin-norepinephrine reuptake inhibitors (SNRIs) and second line treatment including tricyclic antidepressants). If this is insufficient, a combination of pharmacotherapy and psychological therapy is recommended. It also recommends increasing the dose of antidepressant medication, as well as augmenting and combining antidepressants if there is suboptimal response.
Hence, further trials of medication under psychiatric review could have been attempted.
While [the Applicant] commenced psychological therapy previously, it was ceased prematurely. Given the cognitive and anxiety components of his presentation, cognitive behavioural therapy with a focus on cognitive skills and addressing maladaptive thinking as well as exposure to anxiety provoking conditions may have also been reasonable.
c.If such treatment were undertaken, can you conclude that significant functional improvement would be unlikely to result with further treatment?
Ms Lesniowska (3.12.20) advised that [the Applicant] was responding to initial treatment, and terminated treatment prematurely. She did not opine that significant functional improvement would be unlikely. Ms Olsen (3.12.20) also opined that further treatment was necessary and did not rule out further significant functional improvement.
Dr Jenkins provided a poor prognosis on initial session. Dr Jenkins (11.1.21) explained that the poor prognosis was based on [the Applicant’s] condition being directly resulted from chronic pain from cervical and lumbar damage. The author notes that Dr Jenkins has repeatedly indicated on subsequent medical certificates that the impact of symptoms on capacity to work would persist for 3 to 12 months. Dr Jenkins (11.1.21) clarified that there had not been a change in prognosis, [the Applicant] had always been unable to work but “I now recognise that there is no likely improvement.” Hence, while Dr Jenkins may have always considered the prognosis to be poor, it is only ‘now’, well outside the qualification period, that Dr Jenkins opined ‘no likely improvement.’
There is insufficient evidence to conclude that further functional improvement would be unlikely to result with further treatment at the time of qualification.

In response to questions sent to him by the HPAU, Dr Jenkins provided a letter dated 11 January 2021 with the following responses:[44]
1.        It is clear that [the Applicant] suffers from a Major Depressive episode. His anxiety symptoms would qualify for a DSM-V diagnosis of Generalised Anxiety Disorder.
2.        I can confirm that [the Applicant] had an initial appointment with me on 4 October 2019 and his second appointment was on 11 February 2020.
3.        His statements on initially contact in October 2019 indicated that he had previously had multiple pain relievers, hospital attendances, and multiple antidepressants. I have no specifics I can provide.
4.        Because of his reports of multiple treatments with significant side effects, I did not think it was reasonable to continue with any pharmacotherapy.
5.        I believe that his condition is directly resulted from chronic pain from cervical and lumbar damage.
6.        No there is no change in prognosis. I believe that this gentleman has always been unable to work but I now recognise that there is no likely improvement.
7.        I believe that his Depressive Disorder is not only severe but has worsened in recent months. Independent travel and self-care are not the primary concern. I believe he meets the criteria for 20 points.
[emphasis added]
[44]    Exhibit 6, Medical Report authored by Dr Scott Jenkins.
At Hearing, the Applicant told the Tribunal
·He did trial medication in 2013 however the side effects were frightening. He was sitting in his car and his legs started kicking the steering wheel but he was not telling them to do that. It was frightening and he went to the Royal Melbourne Hospital. The doctors kept prescribing him medication but he said he would not take it.
·He thinks he remembers having 5 appointments with a psychologist but does not recall Ms Lesniowska. He does not think the appointments were helpful.
·He saw Ms Olsen once and thought she was good compared to others he had seen however, he had to pay a fee and asked Centrelink to help but they did not so he could not continue to see Ms Olsen.
·He does not remember having two scripts for medication filled on 2 October 2017 and 8 December 2017 or having subsequently taken that medication.
·He saw Dr Jenkins once during the Relevant Period and is still seeing him.
·When asked if he had discussed that Dr Jenkins had been stating that his depression and anxiety were temporary and would continue for 3-12 months, that the reason is that you have to put that, it is a trick. When it was put as permanent his payments stopped, so it was a trick. He spoke to Centrelink who told him that he should not have the doctor put that his condition is permanent on the Centrelink medical certificates to avoid the payment issues. He knows it is wrong because his condition is permanent.
·Since moving to Bundaberg, he has moved 5 times. To begin with he was living with his cousin and having a lot of things done for him.
·He has travelled around a little bit but needs breaks.
·He does not keep in contact with people from Melbourne.
·He tries to engage with people as he does not know anyone in Bundaberg and has tried to make friends. No matter how hard he tries he struggles in conversations. He struggles keeping up with conversations and then his responses to questions are not as people expect because he has not kept up with the conversation. People brush him off and the responses get him down.
·He does not follow television, the television follows him most of the time.
·His doctor’s appointments are arranged for him and he relies on bill reminder alerts to know when to pay his bills.
·He has no interest in studying or training.
·He has tried to work but he cannot. It is not safe for other people.
·After being forced by Centrelink and encouraged by the job provider he has tried to work but failed due to his anxiety. He had to leave work due to his anxiety and bad thoughts. He had to keep other people safe because if he was triggered while having the bad thoughts it would not be good.
·The anxiety is crazy, his blood pressure rises and it is like he is in evil mode and he is then not safe for other people to be around.
·His mental health and physical conditions have gotten worse since lodging this claim for DSP.
On cross-examination, the Applicant told the Tribunal:
·His general practitioner had done a mental health care plan.
·When asked if he had discussed seeing a psychologist under the mental health care plan, he is seeing a psychiatrist regularly and has seen a psychologist in the past.
·When asked if he would be prepared to see a psychologist for treatment, he would not as he sees a psychiatrist and it is all covered.
The Respondent contended that the Applicant’s mental health condition was not fully treated and fully stabilised during the Relevant Period, relying on the fact that there is no evidence that the Applicant had engaged in appropriate pharmaceutical therapy and the opinion of the HPAU.[45] The Respondent provided:[46]
[45]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 12-13, paragraph 55.
[46]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 13-14, paragraphs 56-60.
56.      The Secretary contends that appropriate trials of antidepressant medication, and engagement with psychological therapy, are reasonable treatments which were likely to significantly improve the Applicant’s condition and there is no medical or other compelling reason for him not to undertake these treatments.
57.      The Secretary contends that there is no evidence to corroborate the Applicant’s self-reporting that he has trialled multiple antidepressants in the past with severe side effects. To the contrary, the Applicant’s PBS Patient Summary indicates that the Applicant has only trialled one SSRI antidepressant since 2016.
58.      The Secretary contends that the case law indicates that a condition cannot be regarded as fully treated and fully stabilised in circumstances where a person has declined recommended medical treatment due to their concerns about side effects, which are not corroborated or rationally supported by the medical evidence.
59.      For example, In Tlonan and Secretary, Department of Social Security [1997] AATA 30, the Tribunal found at [57]-[59]:
It follows from these findings that, while I am satisfied that Mrs Tlonan has tried a wide range of medications, she has not undergone the treatment for her migraines as recommended by Dr Burrow. There is nothing to suggest that the treatment he recommended is inappropriate or unreasonable. It involved her first taking an incremental dosage of methergine on a supervised basis. That would have taken some months. While I find that she did take it for some months, there is no evidence upon which I can be satisfied that her reaction to it was independently observed at any stage. That independent observation is a necessary part of the treatment.
If the methysergide proves to be ineffective or to be intolerable, the next step proposed was that she be prescribed propanolol and that its effect be similarly monitored. I find that Mrs Tlonan took propanolol at an earlier stage. In view of the discrepancies in the evidence of Mrs Tlonan and Mr Tlonan (who gave her the medication) on this point, I am unable to conclude whether she took it originally for one month or three months. I do find that she did not take a second course as recommended by Dr Burrow. I also find that, perhaps for reasons outside her control, Mrs Tlonan has not had any formal form of physiotherapy as recommended by Dr Burrow.
While it is easy to understand that Mrs Tlonan feels that she has been taking a great deal of medication without any results, there is no evidence on which I can find that the medication has been taken on a basis which could lead to my finding that her migraines have been regarded as "treated" and "stabilised" for the purpose of the Impairment Tables. I am, therefore, unable to find that her migraines have been treated. It follows that an impairment rating cannot be assigned under the Tables for Assessment of Impairment of Disability Support Pension.
60. More recently, in Merson and Secretary, Department of Social Services [2021] AATA 90, the Tribunal found at [75]:
The Tribunal, in accordance with the Guide, considering first Mr Merson ’s views (the subjective test) for his objection to the treatment, finds that whilst he had concerns about side effects these were not rationally supported by the medical evidence, nor did the evidence support his assertion he was allergic to all injections and his fear of receiving injections had been reasonably addressed by the rheumatologists he had consulted. Secondly, the Tribunal considered all available information on treatment options and risks (the objective test) and finds that all the medical and research evidence indicated that the serious side effects of the treatment were very rare.
…
Based upon both a subjective and objective analysis, Mr Merson’s refusal to have the treatment is not considered reasonable by the Tribunal. The condition cannot be considered fully treated and therefore, an impairment rating cannot be assigned under the Impairment Tables.
At Hearing the Respondent contended that the Tribunal should place little weight on the letter of Dr Jenkins dated 22 April 2020 as it was not referable to the Relevant Period. The Respondent further contended that the report of Dr Jenkins dated 28 October 2020 should not be given any weight as it was provided with the benefit of hindsight, there is no evidence that after one appointment in November 2019 the opinion expressed in the letter is consistent with that formed after the initial appointment.
At Hearing the Applicant contended that his mental health condition was fully diagnosed, fully treated and fully stabilised and that this has been made clear by Dr Jenkins. The Applicant contended that Dr Jenkins in an expert and can make his opinion as quickly as he wants to. The Applicant said that what someone is going through needs to be taken into consideration, going by the book is not taking human perspective into account and is neglecting the real-life situation.
The Tribunal notes that during the Relevant Period Dr Jenkins had only seen the Applicant on one occasion and subsequent to the Relevant Period has continued to provide regular treatment to the Applicant. Based on the evidence before it, the Tribunal prefers the opinion of the HPAU as set out above in relation to the Applicant’s mental health condition during the Relevant Period to that provided by Dr Jenkins.
In the reports dated 8 October 2019 and 27 November 2019, Dr Jenkins opined that the Applicant’s major depression with anxiety had been fully diagnosed and fully treated, that he was unable to work and that no additional treatment would be likely to be beneficial. Dr Jenkins also provided that the Applicant had been treated with multiple anti-depressants in the past with medication producing severe side effects, that he had also been reviewed by a physiotherapist, psychologist and pain specialist and had also had psychiatric treatment. This appears to the basis upon which Dr Jenkins has reached his overall opinion that Applicant’s mental health condition had been fully treated.
The Applicant quite rightly pointed out that Dr Jenkins is a psychiatrist and as a specialist is entitled to form a view of his patients condition at any time. The problem however with the conclusions made by Dr Jenkins during the Relevant Period is that they were made after only engaging with the Applicant on one occasion and in reliance on the Applicant’s self-reports (this was acknowledged by Dr Jenkins in his letter dated 11 January 2021). Based on the evidence before the Tribunal it is clear that the Applicant had not in the lead up to or during the Relevant Period adequately engaged in reasonable pharmaceutical treatment or reasonable psychologist treatment (despite evidence from Ms Lesniowska that he was showing improvement). Nor had the Applicant been reviewed by a pain specialist or had he previously engaged in psychiatrist treatment outside of his workers compensation claim.
The Tribunal therefore considers that little weight can be placed upon the reports of Dr Jenkins that were provided during the Relevant Period. While the Tribunal notes that Dr Jenkins had provided further treatment to the Applicant by the time he provided the reports dated 22 April 2020 and 28 October 2020, those reports largely do not go to the Relevant Period, and to the extent that they do are afforded little weight for the same reasons as the earlier reports.
The Tribunal notes that numerous Centrelink medical certificates completed by Dr Jenkins refer to the Applicant’s mental health condition as being a temporary exacerbation of a permanent condition with symptoms likely to affect his capacity to work or study for 3-12 months. This indicates that at that time Dr Jenkins did not in fact see the Applicant’s mental health condition as being fully stabilised. This doubt is cemented by Dr Jenkins statement in the letter dated 11 January 2021 that “No there is no change in prognosis. I believe that this gentleman has always been unable to work but I now recognise that there is no likely improvement.” The Tribunal considers that it was not until some point in time after the Relevant Period and perhaps more likely around the letter date of 11 January 2021 that Dr Jenkins formed the view that the Applicant’s mental health condition was unlikely to improve. The Tribunal notes that the Applicant advised that he has made subsequent applications for the DSP and it may be that the ongoing treatment and evidence provided by Dr Jenkins is more relevant to those new claims.
There is no evidence before the Tribunal that undertaking review by a pain specialist, further psychologist treatment or engagement with pharmaceutical treatments prior to the end of the Relevant Period would not have resulted in significant functional improvement within the two years preceding the claim for DSP, nor is there any compelling reason for the Applicant not to undertake such treatment. This may have in fact been the position at a point in time after the Relevant Period to which this claim for DSP relates, however the Tribunal is limited to looking at the position as it was during the Relevant Period rather than relying on the benefit of hindsight.
Based on the medical evidence before it, the contentions of the Respondent and evidence provided by the Applicant, the Tribunal finds that the Applicant’s mental health condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period. Consequently, the Applicant’s mental health condition is not considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Continuing Inability to Work
As the Tribunal has found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
The Tribunal finds that the Applicant’s spinal and mental health conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points for these conditions.
The Tribunal finds that the Applicant’s upper limb condition could not be considered permanent for the purposes of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points for this condition.
The Tribunal finds that for the purposes of section 94(1)(b) the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.............[SGD]...........................................................
Associate
Dated: 31 March 2021

Date of Hearing: 22 March 2021

Applicant: By telephone

Solicitors for the Respondent: Ms Gillian Gehrke
Services Australia

Date of Hearing:	22 March 2021
Applicant:	By telephone
Solicitors for the Respondent:	Ms Gillian Gehrke Services Australia