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

Veresses and Secretary, Department of Social Services (Social services second review) [2020] AATA 3310 (26 August 2020)
Division:GENERAL DIVISION
File Number: 2019/7425
Re:Peter Veresses
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:26 August 2020
Place:Melbourne

The decision under review is affirmed.
....[sgd]....................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension rejection – chronic regional pain syndrome – depression and anxiety – Impairment Tables – whether conditions fully diagnosed, treated and stabilised as at qualification period – reasonable treatment – depression and anxiety fully diagnosed, but not fully treated and stabilised – no severe impairment – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
The Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
26 August 2020
INTRODUCTION

This is a review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) (the “AAT1”) made on 15 October 2019 to affirm a decision of the Department to reject the applicant’s claim for disability support pension (“DSP”).
On 21 November 2018 the applicant lodged a claim for DSP in relation to conditions of chronic regional pain syndrome (“CRPS”) associated with his left lower limb as well as depression/anxiety (the “applicant’s claim”).
On 12 June 2019 the Department rejected the applicant’s claim.
The applicant requested a review of the decision and on 29 July 2019 an Authorised Review Officer (the “ARO”) affirmed the Department’s original decision.
The applicant then sought review of the ARO’s decision with the AAT1. On 15 October 2019 the AAT1 affirmed the ARO’s decision.
On 12 November 2019 the applicant applied for a review of the AAT1 decision which is the matter presently before this Tribunal.
A hearing by telephone was held on Friday, 19 June 2020. The applicant was self-represented. The respondent was represented by Ms Aarabi Raveendiran, a solicitor with the Department.
At the conclusion of the hearing the Tribunal requested that the respondent provide further submissions in relation to the applicant’s CRPS which were received on 1 July 2020. The applicant was invited to make further submissions in response but elected not to do so.
The applicant is 41 years of age, single and lives with his parents. He had previously worked as a carpenter and also in undertaking house renovations. The applicant suffered a significant injury in 2014 as a result of being hit by a motor scooter.
RELEVANT LAW AND ISSUE
The relevant law is set out in the:
(a)Social Security Act 1991 (the “Act”);
(b)Social Security (Administration) Act 1999 (the “Administration Act”);
(c)Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011; and
(d)The Social Security (Active Participation for Disability Support Pension) Determination 2014.
The Administration Act provides, at clause 4(1) of Schedule 2, as follows:
If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Therefore, the issue before the Tribunal is whether the applicant was qualified for DSP on the date he lodged his claim, namely 21 November 2018, or at any time during 13 week period through to 20 February 2019 (the “qualification period”). See: Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; and Bobera and Secretary, Department of Families, Housing and Community Services and Indigenous Affairs [2012] AATA 922.
More specifically, it is necessary for the Tribunal to determine whether, in accordance with section 94(1) of the Act, the applicant had:
(a)a physical, intellectual or psychiatric impairment; and
(b)the impairment was fully diagnosed, treated and stabilised and attracted an impairment rating of at least 20 points under the Impairment Tables; and
(c)a continuing inability to work.
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the “Determination”).
An explanation of the purpose of the Impairment Tables is set out in subsection 5(2) of the Determination, which states that the Impairment Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Note: impairment is defined in section 3 to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
In order to be assigned a points rating under the Impairment Tables, the condition must be considered permanent and the impairment that results from the condition must be more likely than not, in light of all available evidence, to persist for more than two years (subsection 6(3) of the Determination). For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and fully stabilised and be likely to last for more than two years (subsections 6(4), (5) and (6) of the Determination).
In determining whether or not a condition is fully diagnosed and fully treated, subsection 6(5) of the Determination states that:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
A condition is only considered fully stabilised if, pursuant to subsection 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.
Reasonable treatment is defined in subsection 6(7) of the Determination:
For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
CONTENTIONS AND CONSIDERATION
While the respondent accepts that the applicant’s CRPS is fully diagnosed, treated and stabilised, the respondent does not accept that the condition attracts a rating any higher than 10 points under Table 3 of the Impairment Tables. In response to a request from the Tribunal, the respondent made post hearing written submissions that Table 3 is the appropriate Table under which impairment arising from the applicant’s CRPS should be considered and that it would not be appropriate to assign points in respect of impairment from that condition under Table 5, as the condition is not recognised as a stand-alone mental health condition. The Tribunal accepts the respondent’s submissions in this respect.
The respondent does not accept that the applicant’s anxiety/depression condition is fully treated and stabilised. Accordingly, the respondent contends that the applicant does not meet the requirement of 20 points under section 94(1)(b) of the Act and that for this reason the applicant fails to meet the criteria necessary to make out his claim for DSP.
The applicant contends that both of his conditions were fully diagnosed, treated and stabilised within the qualification period and that the conditions attract sufficient points under the Impairment Tables to qualify him for DSP. Further the applicant contends that he has a continuing inability to work as required by section 94(1)(c) and otherwise meets the eligibility criteria under the Act.
The Tribunal is satisfied that the applicant suffers from a fully diagnosed condition of CRPS relating to his lower left limb and also from depression/anxiety. Accordingly, the Tribunal is satisfied that the applicant meets the criteria set out in section 94(1)(a) of the Act.
In addition, the Tribunal accepts that the applicant’s CRPS condition was fully treated and stabilised at the qualification period.
In considering the relevant points rating to be assigned to the applicant’s CRPS condition the Tribunal has had particular regard to the following evidence:
(a)In a medical certificate dated 1 December 2014 Dr Peter Andrianakis confirmed the applicant’s left leg injury was caused as a result of being hit by a motorised scooter and described the applicant’s symptoms as “pains” and “poor mobility”. He stated that the applicant’s condition was likely to affect his ability to function for between 13 and 24 months.
(b)By letter dated 31 March 2015 Dr Peter Blombery noted that the applicant was attending St Vincent’s Pain Clinic for the management of his condition. Dr Blombery stated that a pamidronate infusion was being considered.
(c)In a medical certificate issued on 26 August 2015 Dr Andrianakis reconfirmed the applicant’s lower left leg condition together with depression. Dr Andrianakis noted the applicant’s symptoms as being “pains and weakness” and “poor concentration, pain related”. He described the prognosis as being uncertain.
(d)In an Employment Services Assessment Report dated 21 September 2015 the applicant’s left leg pain condition was again confirmed. The report stated that the applicant was seeing a pain specialist one to three times per week as well as physiotherapy, hydrotherapy, medication and morphine patches. The applicant’s symptoms were described as pain and weakness. It was noted that the applicant had “reported pain which travels to his thigh; cramping in his toes; numbness and pins and needles; limited standing tolerance; reliance on crutches”. The report notes that the condition is considered permanent as the applicant had had “no improvement in the past 12 months”. The report also notes the applicant’s diagnosis for depression which it describes as having come on “7 – 8 months ago”. The report notes that the applicant was seeing a psychologist at the pain clinic and notes his symptoms as being poor concentration, low mood and frustration associated with chronic pain and an inability to work. The report describes the barriers to be addressed as mobility restrictions, chronic pain and mood disorder. The report describes the applicant as requiring support for the physical completion of work tasks, coping with work-related stress and pressure and maintaining suitable employment. The report notes that based on the level of support required the applicant “requires specialist disability employment interventions”. The report identifies appropriate interventions as including injury management, secondary rehabilitation and ‘psychological/cognitive assessment/intervention”. The report notes that the applicant stated that he is able to manage public transport.
(e)A report from Dr Harry Eeman dated 2 December 2015 states that the applicant suffers from significant pain and that he believed the previous pain program had not worked for him. The report describes the applicant as feeling “pins and needles and pain in the foot and extension of pain to his back”. Dr Eeman states that he discussed the trial of a sympathetic block to manage the applicant’s pain and that the potential effects and complications were also discussed.
(f)In a report dated 14 December 2015 consultant psychiatrist, Dr Prem Chopra, confirmed that he had assessed the applicant and describes the applicant as having suffered from chronic left leg pain and allodynia following an injury sustained in a scooter accident in 2014. Dr Chopra noted that the applicant recognised that his pain was exacerbated by his anxiety. Dr Chopra notes that the applicant described “feeling constantly low in his mood because he is limited in his activity and level of functioning. He expressed thoughts of hopelessness and uncertainty regarding his future. He denied suicidal ideation and identified that his family is a protective factor. He expressed frustration that he has been unable to enjoy activities that he was previously engaged with”.
(g)In a medical report dated 16 December 2015 Dr Blombery described the applicant as having progressed “relatively poorly” and having developed some paraesthesiae in his left leg which has spread over his body and that he was trembling with a headache. Dr Blombery noted that the applicant is going to have an ultrasound on his leg to exclude the possibility of a deep vein thrombosis. The report notes that the applicant is still attending the St Vincent’s Hospital Pain Management Course and that consideration has been given to a form of spinal injection. The report notes that the applicant continues to walk with crutches and does not weight bear on his left foot. The report notes that the applicant remains on pain management medication including Norspan, Nurofen and Panadol. It also notes that Dr Blombery has added Cymbalta to the applicant’s medicinal regime. Dr Blombery also notes that the applicant appears to be “somewhat depressed”.
(h)By letter dated 8 August 2016, Dr Eeman notes that the applicant did not proceed with the sympathetic block as previously recommended although it was noted that the applicant was giving it further consideration. Dr Eeman also noted that the applicant has not been followed up by their psychiatrist and proposed to make such an appointment. Dr Eeman describes the applicant’s condition as unchanged noting that the applicant is “still very much socially and functionally limited by pain, hardly putting any weight through that leg”. Dr Eeman also notes that the applicant appears to suffer from panic attacks although only “once in a while”.
(i)On 30 August 2016 Dr Andrianakis reconfirmed the applicant’s lower left leg condition together with his depression condition. Dr Andrianakis notes that in his opinion the applicant will be unfit for work before 20 November 2016. Dr Andrianakis concludes that the applicant’s depression condition is “permanent”.
(j)On 21 October 2016 Dr Andrianakis issued a further medical certificate again reconfirming the applicant’s conditions although this time describing the applicant’s depression as being “temporary”.
(k)In a report dated 9 November 2016, Dr Eeman notes that having assessed the applicant again his position appears to have remained the same. The report notes that the applicant is a “very concrete thinker and cannot seem to apply the psychological strategies he has been taught”. The report notes that the applicant is not attending with the St Vincent’s psychiatrist any longer and has not wanted to go down the lumbar sympathetic block pathway. Dr Eeman notes that he has suggested to the applicant that he tries some “'natural supplements such as curcumin which has an anti-depressant property as well as an anti-inflammatory property. I have also suggested he tries a compound anti-neuropathic pain cream which I have organised for him”. Dr Eeman recommends a slight increase in the applicant’s use of Norspan to see whether “this can improve his ability to mobilise through his limb”.
(l)In a report dated 24 November 2016 psychologist, Dr Seaton Charlesworth, and physiotherapist, Zoe Harper, state that the applicant has completed the multidisciplinary Physiotherapy and Acceptance Commitment Therapy group for individuals with chronic pain. The report notes that the applicant has described experiencing a flareup in his chronic pain. In terms of ongoing treatment the report recommends the use of an action plan to manage setbacks, scheduled time each day for self-soothing strategies, continued mindfulness and positive self-talk and meditating regularly. The report notes that the applicant has described ongoing pain and sensory symptoms to his leg which continue to have an impact on his ability to do everyday activities, exercise and work. It notes that the applicant is attending hydrotherapy regularly and completes seated exercises to work on movement and strength in his leg. The report recommends the applicant re-familiarise himself with the process of doing trials and calculating baselines noting that this may be helpful for the applicant gradually building up his tolerances for sitting, standing and walking. Other recommendations include stretching daily, undertaking individual exercise program, walking daily, hydrotherapy regularly and commencing new activities or resuming previously avoided activities.
(m)In a report dated 29 May 2017, Dr Eeman confirmed that he had once again assessed the applicant and noted that there had not been much improvement. Dr Eeman notes that he is not sure there is much more he can do for the applicant. He notes that the applicant has refused a pamidronate infusion and lumbar sympathetic blocks which are traditionally reasonable options for CRPS. Dr Eeman notes that the applicant has continued to use Norspan which is able to do indefinitely.
(n)In a report dated 27 October 2017 Mr Thomas Kossmann confirms that he has undertaken a medical assessment of the applicant. In his report Mr Kossmann provides an extensive history of the applicant’s injury and subsequent conditions both physical and psychological. He confirms the diagnosis of CRPS affecting his left lower limb with significant pain, colour changes, temperature changes and no movements in the left ankle and left toes. He notes no weight-bearing on the left leg due to increasing pain issues. Mr Kossmann concludes that the applicant’s prognosis for his CRPS is poor, noting that he has suffered for over three years and that the notion the condition may resolve itself is in his opinion “poor to non-existing”. He notes that the applicant “may suffer for the rest of his life from this condition, for which he will require further treatment”. Mr Kossmann also notes that the applicant has suffered from psychological problems as a result of the CRPS and he recommended that the applicant undergo a psychiatric evaluation. He concluded that in his opinion the applicant “has no work capacity and I am doubtful that he will ever be able to return to any work as long as he suffers from the symptoms of [CRPS].” He states that he does not believe the applicant has work capacity in the near future; however, Mr Kossman recommends that the applicant undergo reviews on a regular basis to understand his need for further treatment, prognosis and work capacity. Mr Kossmann notes that the applicant was dependent on “forearm crutches, which irritated his forearms on both sides and he suffered from swelling in his forearms”. He notes that the applicant told him that he underwent “intensive rehabilitation with physiotherapy, psychology, pain management specialist and pain clinics, however, his condition has not improved since he was injured on 21 August 2014”. Mr Kossmann concludes that the applicant’s overall disability is “70%”.
(o)In a report dated 20 August 2018 Dr Blombery notes that the applicant continues to have ongoing pain in his leg. Dr Blombery notes that he suspects that “there are very significant psychological factors playing a role in his presentation not necessarily in his conscious control but he stubbornly refuses to do any weight-bearing on the affected leg.”
(p)On 9 November 2018 Dr Andrianakis issued a further medical certificate again reconfirming the applicant’s conditions although this time describing both the applicant’s CRPS and depression conditions as being “permanent” and notes that the applicant’s conditions are likely to deteriorate within two years. Dr Andrianakis notes that in his opinion the applicant will be unfit for work before 9 February 2019.
(q)In a Disability Support Pension Medical Eligibility Assessment Recommendation report dated 28 November 2018 the assessing physiologist notes that the applicant’s CRPS condition has been confirmed by his GP that there is evidence of diagnosis, engagement in reasonable treatments (including specialist and pain management program) and ongoing functional impairment. The report notes that there are other medical conditions listed within the body of the medical evidence that may or may not meet medical eligibility. The report does not expand on this however. The report recommends a Job Capacity Assessment to determine medical eligibility and apply an impairment rating.
(r)In a Job Capacity Assessment Report dated 7 June 2019 the assessing psychologist confirms that based on the available medical evidence the applicant’s CRPS condition is fully diagnosed, fully treated and fully stabilised. The report notes that the applicant has attended a pain management clinic, physiotherapy, hydrotherapy, taken pain medication and been subjected to a number of reassessments. The report notes that the lumbar sympathetic block recommended by Dr Eeman was not undertaken. The report describes the applicant as having noted daily pain in his left leg, using crutches to move around. The report notes that the applicant stated that he cannot stand without crutches. The report notes the client stated that he can drive for 30 minutes and that he found relief using a home spa. The report concludes the CRPS condition is assessed as fully diagnosed, treated and stabilised as “there was evidence of a diagnosis, and engagement in reasonable treatments with pharmacotherapy and pain management with ongoing symptomology”. The report concludes that the applicant’s condition of anxiety is also supported by medical evidence and should be treated as fully diagnosed. The report notes that the applicant was seen by Dr Chopra while he attended the pain clinic and also had psychiatric counselling in 2015. The report notes that the applicant is continuing to take medication in the treatment of his condition. The report describes the applicant as having stated he suffers from daily low mood, poor concentration due to pain. The report notes that the applicant stated that he felt sad that he cannot work and is unable to do physical tasks. The report noted that the applicant is independent with personal care and that the applicant stated that he uses the home spa to relieve his pain. The report concludes that the “limited verified medical evidence available for this claim would in itself not allow” for a fully diagnosed, treated and stabilised determination. Accordingly, the report concludes that no points rating can be attributed to the applicant’s “anxiety”. Contact was not made with the doctor for verification of treatments due to client self-report of no planned psychiatric review and no supported evidence of consistent psychotherapy since 2014. The report states that these interventions would reasonably be expected to identify alternative treatments and improve his level of functioning. The report notes that the applicant’s medical conditions do not prevent him from using public transport without substantial assistance. Based on the assessment the report recommends an impairment rating of 5 under Table 3. The report concludes that the applicant requires support to cope with work-related stress and pressure, concentrate or remain task focused and build work capacity for between 6 to 12 months and also to maintain sustainable employment for less than six months. The report concludes that the applicant’s baseline work capacity is between 15 and 22 hours a week. The report notes the applicant’s limited work capacity is due to the impact of his left leg injury, and that the applicant is reliant on crutches for support and has limited sitting and standing tolerance. The report notes that the applicant “experiences mental health issues, anxiety and depression which have affected his mood and concentration. He would have difficulty maintaining full-time employment”. The report notes that on a temporary basis the applicant’s capacity is reduced to 0 to 7 hours per week until 31 December 2019 due to the “exacerbation of depression and anxiety resulting in reduced concentration, agitation, low stress tolerance and low motivation”.
(s)In a letter dated 2 July 2019 Dr Andrianakis states as follows:
Confirming that Mr Peter Veresses, age 41 years has been injured since 2014.
He has undergone extensive rehabilitation with specialists, physiotherapy and psychology.
He is currently stable. He has been fully treated and diagnosed by all the appropriate medical practitioners and he is not likely to improve further.
He is likely to deteriorate over the next 2 years. He has no current work capacity and a very poor prognosis for a return to work at any level.
He satisfies ALL criteria for a DSP,
Using the Centrelink tables of impairment he scores 20 points for his lower limb injury.

In a further Disability Support Pension Medical Eligibility Assessment Recommendation Report dated 17 July 2019 the assessing psychologist concludes that, notwithstanding Dr Andrianakis’ letter of 2 July 2019, the pre-existing JCA should stand and that in respect of the CRPS the points rating should stand at five points under Table 3. Further, the psychologist concludes that the applicant’s depression/anxiety condition should be treated as fully diagnosed but not fully treated and stabilised and therefore there be a zero points rating for that condition. The report notes that Dr Andrianakis’ conclusion to the contrary is not supported with any further specific information or medical evidence.
In his review application the applicant claims that as a consequence of his CRPS condition he is “disabled” and unable to walk without his crutches. He notes that he gets very sore arms. He noted that he can drive a car but only does so for appointments. He noted that he was unable to make a sandwich because his arms hurt when he attempts to raise them to the kitchen bench.
The applicant told the Tribunal that he frequently experiences considerable pain as a consequence of his CRPS condition. He told the Tribunal that he manages his pain principally through the use of medication but also through the regular use of his home spa.
The applicant gave direct evidence to the effect that, as at the qualification period:
(a)he required assistance with day-to-day household tasks and noted that he cannot cook and cannot clean.
(b)he could not walk without the assistance of his elbow crutches.
(c)he could not walk around a shopping centre without assistance. He told the Tribunal that he required a wheelchair and that he needed assistance being pushed around in a wheelchair as otherwise his arms would become fatigued.
(d)he could not walk far with just his crutches as his arms would become fatigued and give way.
(e)he was able to walk from his house to his car with the use of his crutches.
(f)he was able to walk from his car to the shopping centre entrance but only if his car was parked within a short distance of the entrance. When asked by the Tribunal what distance he could walk without the use of a wheelchair the applicant told the Tribunal that he could get from his car to the entrance of a shopping centre unassisted (but with the use of his crutches) if his car was parked within approximately 50 to 100 metres of the entrance but that if it were a longer distance he would require assistance.
(g)he was able to get out of a chair without assistance (but with the use of his crutches) but the applicant told the Tribunal that he would sometimes need help depending on the state of his leg. He told the Tribunal that if his legs cramped up, he would sometimes need to call his dad for assistance to get out of a chair. He stated that if he has pins and needles in his leg he cannot get himself up without assistance. When asked how often this occurred the applicant was somewhat noncommittal in his response, stating that it “depends” and “sometimes I do need help to get up”. When pressed further on this point the applicant said that he would usually get up by himself but would occasionally need to get some assistance. When pressed further on how often he was able to walk up to 100 metres using his crutches but otherwise unassisted, the applicant stated “approximately 50%” of the time but he was very reluctant to give a percentage figure.
(h)he was able to push a wheelchair generally without assistance but would require assistance if it was for an extended period of time in order to provide relief for his arms. The applicant stated that if he were to be at a shopping centre, he would require assistance as his arms would otherwise become fatigued. The applicant told the Tribunal that he needed assistance getting his wheelchair in and out of his car.
(i)he was able to use his crutches around the house or to walk somewhere close by his house without assistance. The applicant told the Tribunal that he also has a wheelchair which he sometimes uses around the house when his legs give way. He told Tribunal that he could generally get from his chair to the toilet with the use of his crutches but that sometimes if his legs cramped up, he would need assistance.
Having considered all the evidence before it, the Tribunal is satisfied that the applicant’s CRPS condition associated with his left leg injury was fully diagnosed, treated and stabilised during the qualification period. It is clear that the applicant has undertaken reasonable treatment in respect of his condition and there would appear to have been no improvement since the accident in 2014. The Tribunal accepts that the applicant suffers very significant pain as a consequence of his CRPS condition.
The Tribunal is satisfied that the applicant meets the criteria for moderate functional impact on activities using his lower limbs as set out in Table 3 of the Impairment Tables. This was conceded by the respondent. However, based on the evidence, the Tribunal is not satisfied that the condition attracts a severe rating of 20 points under Table 3.
The Tribunal accepts that the applicant experiences high levels of pain and that as a consequence he has significant difficulty in standing and walking, even with the use of his crutches, for significant periods of time. The Tribunal also accepts that the applicant can, occasionally, require assistance in performing basic functions such as removing himself from a chair or wheelchair, showering or getting himself from his parked car to the shopping centre entrance where his car is parked only a short distance from the entrance. However, on the basis of the applicant’s own evidence, the Tribunal is not satisfied that the applicant usually requires the assistance of others in performing such functions. It was clear to the Tribunal, on the basis of the applicant’s own evidence, that the applicant was usually able to stand up from a sitting position with the use of his crutches but otherwise without the assistance of another person, and also that he was usually able to walk a distance of between 50 to 100 metres from his parked car to the entrance of the shopping centre with the use of his crutches but otherwise without the assistance of another person. While in direct evidence the applicant had suggested he required assistance approximately 50% of the time, when pressed he appeared very reluctant to nominate a percentage and the Tribunal is satisfied that the weight of the applicant’s evidence was consistent with him requiring such assistance occasionally but no more than that. On the basis of this evidence the Tribunal is not satisfied that the applicant meets the criteria for a severe functional impact under Table 3 of the Impairment Tables. In addition, the Tribunal accepts the respondent’s contention that there is no compelling independent evidence before the Tribunal that corroborates the applicant having had a functional impact consistent with a severe functional impact in Table 3 as at the qualification period.
In reaching this conclusion the Tribunal acknowledges the letter of Dr Andrianakis dated 2 July 2019 where Dr Andrianakis states that in his opinion the applicant meets all the criteria for DSP and “scores 20 points for his lower limb injury”. The Tribunal accepts the respondent’s contention that the conclusion reached by Dr Andrianakis is extremely general and that the letter does not include any reasons for the conclusion, make any specific observations in relation to the eligibility criteria that would give rise to a 20 point rating under Table 3, nor does the letter make any reference to other supporting evidence for the conclusion. In these circumstances the Tribunal is not satisfied that the general statement made by Dr Adrianakis is, of itself, sufficient corroborating evidence for the Tribunal to be satisfied that the applicant meets the criteria for a severe rating under Table 3.
For these reasons, the Tribunal is satisfied that the appropriate points rating under Table 3 of the Impairment Tables in respect of the applicant’s CRPS is 10 points.
The Tribunal is satisfied that the applicant’s condition of depression/anxiety was fully diagnosed but the Tribunal accepts the respondent’s contention that the condition was not fully treated and stabilised within the qualification period and that, as a consequence, the condition cannot be assigned a points rating under the Impairment Tables. In reaching this conclusion the Tribunal acknowledges that there is compelling evidence before it that the applicant suffers very significantly as a consequence of his depression and anxiety. The Tribunal accepts that the applicant has limited social and recreational activities and travel as a consequence of his mental health condition. It was also very clear to the Tribunal that the applicant has difficulty concentrating and completing tasks. It was necessary during the course of the hearing for the Tribunal to facilitate a break in the evidence due to the difficulty he was clearly having in maintaining concentration in the course of the hearing. It was also clear to the Tribunal that the applicant suffers significant stress and frustration as consequence of his conditions. These observations were also supported in other evidence before the Tribunal. There were multiple references in the various medical reports to the applicant appearing depressed, having difficulty concentrating and suffering from stress and frustration as a consequence of his conditions.
The Tribunal accepts that the applicant has undertaken some level of treatment in respect of his depression and anxiety conditions through the taking of medication prior to and during the qualification period (including Cymbalta and Endep).
However, the Tribunal accepts the respondent’s contention that there is very limited independent medical evidence that would support a conclusion that the applicant has otherwise undertaken reasonable treatment in respect of his depression and anxiety. The Tribunal reaches this conclusion notwithstanding a number of again very general statements by Dr Andrianakis to the effect that the applicant’s depression is permanent, and also his reference in the July 2019 letter that the applicant meets all of the eligibility criteria for DSP. Notwithstanding these statements the Tribunal is not satisfied that the applicant had, as at the qualification period, undertaken reasonable treatment with respect to his depression and anxiety conditions.
Other than some evidence of psychiatric counselling undertaken in 2015 and 2016, there is no other compelling independent evidence of the applicant having undertaken consistent psychotherapy in respect of his depression and anxiety conditions leading up to the qualification period. The Tribunal is satisfied that such an intervention could reasonably be expected to have identified alternative treatments resulting in improved functioning.
The Tribunal accepts that the applicant undertook some level of psychiatric counselling in 2015 in connection with his attendance at the Barbara Walker Centre at St Vincent’s Hospital. Notwithstanding this, it was clear from the correspondence from Dr Eeman that the applicant had ceased participating in counselling through the Centre as at 9 November 2016. In his evidence the applicant stated that he had been encouraged to seek out his own counselling and that as a consequence he commenced consulting with Diane McNamara in 2016. The respondent contends that Ms McNamara’s letter of 20 February 2020 would strongly suggest that any earlier consultation the applicant had with Ms McNamara was not in relation to his depression and anxiety conditions, as the letter makes no reference to Ms McNamara having had an earlier consultation with the applicant in respect of such conditions nor does it include any reference to a diagnosis in relation to such conditions. The Tribunal accepts the respondent’s contention in this respect.
The applicant also made reference to his consultation with consultant psychiatrist Dr Akinsola Akinbiyi in August 2019 which of course occurred after the qualification period. The respondent contends that Dr Akinbiyi’s follow-up letter of 12 August 2019, which refers to the need for further “psychoeducation about the diagnosis” and the engagement of a psychiatrist for CBT psychotherapy, would also strongly suggest that as at the qualification period the applicant had not undertaken reasonable treatment for his depression and anxiety conditions and that therefore the conditions were not fully treated and stabilised at that time. Again, the Tribunal accepts the respondent’s contention in this respect.
Accordingly, the Tribunal is satisfied that the applicant’s depression and anxiety conditions were not fully treated and stabilised as at the qualification period. For these reasons, the Tribunal is satisfied that the applicant’s depression and anxiety conditions cannot be assigned a rating under the Impairment Tables. This conclusion is consistent with the assessing psychologist’s assessment contained in the Job Capacity Assessment Report dated 7 June 2019 as well as the assessing psychologist’s assessment in the Disability Support Pension Medical Eligibility Assessment Recommendation Report dated 17 July 2019.
In reaching this conclusion the Tribunal does not wish to suggest that the applicant is not suffering from depression and anxiety. To the contrary, the Tribunal is satisfied that the applicant does suffer from those conditions and that he experiences significant impairment as a consequence. However, in considering the applicant’s eligibility for DSP the Tribunal must apply the criteria set out in the Impairment Tables and the Act. In doing so, in order to give the applicant a points rating under the Impairment Tables in respect of his depression and anxiety conditions, the Tribunal must be satisfied that the conditions have been fully treated and stabilised. On the basis of the evidence before it the Tribunal is not satisfied that those conditions were fully treated and stabilised as at the qualification period for the reasons set out. It is quite possible that if the applicant were to make a fresh application for DSP that those conditions could now be met. That of course would be a matter for a future decision-maker.
For these reasons, the applicant does not satisfy the eligibility criteria as set out in section 94(1)(b) of the Act, namely an impairment rating of at least 20 points under the Impairment Tables, and, as a consequence, the applicant’s claim for DSP made on 21 November 2018 cannot succeed.
In these circumstances, it is not necessary for the Tribunal to go on to consider whether or not the applicant had a continuing inability to work.
DECISION
The decision under review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

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

Date of hearing: 19 June 2020

Applicant: By telephone

Advocate for the Respondent: Ms Aarabi Raveendiran

Solicitors for the Respondent: Services Australia

[2020] AATA 3310

26 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Standing

Appeal

Date of hearing:	19 June 2020
Applicant:	By telephone
Advocate for the Respondent:	Ms Aarabi Raveendiran
Solicitors for the Respondent:	Services Australia