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

Ward and Secretary, Department of Social Services (Social services second review) [2019] AATA 4545 (7 November 2019)
Division:GENERAL DIVISION
File Number: 2019/0637
Re:Caine Ward
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:7 November 2019
Place:Brisbane

The Tribunal affirms the decision under review.
.....................[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
REASONS FOR DECISION
Member D Mitchell
7 November 2019
INTRODUCTION

On 30 November 2017, Mr Caine Ward (the Applicant) lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T26, pages 169-201, DSP claim form.
The claim was rejected on 21 June 2018,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the                 Impairment Tables. The decision was reviewed by an Authorised Review Officer (ARO) who affirmed the decision to refuse the application for DSP on 5 September 2018.[3]
[2]     Exhibit 1, T Documents, T39, pages 245-246, Letter: Rejection of DSP claim.
[3]     Exhibit 1, T Documents, T43, pages 253-260, ARO 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), which affirmed the decision of the ARO on 11 January 2019.[4]
[4] Exhibit 1, T Documents, T2, pages 5-9, 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 7 February 2019.[5]
[5] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 16 October 2019, a Hearing was held for this application. At the Hearing, the Applicant appeared in person, was self-represented and gave evidence under oath.
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.
BACKGROUND
On the Applicant’s DSP claim form[6] he lists the following disabilities, illnesses or injuries:[7]
·Chronic pain
·Neck condition
·Lumbar spine condition
·Psychological condition
[6] Exhibit 1, T Documents, T26, pages 169-201, DSP claim form.
[7] Exhibit 1, T Documents, T26, page 195, DSP claim form.
On 30 April 2018, the Applicant attended a face-to-face assessment with a Job Capacity Assessor (JCA).[8] The Assessor, whose professional discipline is listed as registered psychologist, with the contribution of an Assessor whose professional discipline is listed as a rehabilitation counsellor, provided a report recommending that the:[9]
·Applicant’s neck, carpal tunnel syndrome, shoulder and upper arm disorder, psychological and chronic pain conditions were fully diagnosed but not fully treated and stabilised; and
·Applicant had a capacity to work 15-22 hours per week within 2 years with intervention.
[8] Exhibit 1, T Documents, T38, page 232, JCA Report.
[9] Exhibit 1, T Documents, T38, pages 232-244, JCA Report.
On 21 June 2018, the Applicant’s claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more.[10]
[10] Exhibit 1, T Documents, T39, pages 245-246, Letter: Rejection of DSP claim.
The Applicant provided further medical reports and sought review of this decision. On 5 September 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP.[11] The ARO made the following key findings:[12]
·Your conditions of neck disorder, shoulder and upper arm disorder, lower back complaint, carpal tunnel syndrome and psychological/psychiatric disorder are not accepted as being permanent as they have not been fully treated and stabilised.
·You do not have an impairment rating of 20 points or more.
[11] Exhibit 1, T Documents, T43, page 253-260, ARO Decision and Notes.
[12] Exhibit 1, T Documents, T43, page 254, ARO Decision and Notes.
On 5 September 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[13] On 11 January 2019, the SSCSD affirmed the decision under review.[14]
[13] Exhibit 1, T Documents, T44, pages 261-262, Application to the SSCSD.
[14] Exhibit 1, T Documents, T2, pages 5-9, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[15]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[16] and
3.Does the Applicant have a continuing inability to work?[17]
[15]    Section 94(1)(a) of the Act.
[16]    Section 94(1)(b) of the Act.
[17]    Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the 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.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[18] 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.[19] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[20]
[18]    Section 6(1) of the Determination.
[19]    Section 6(2) of the Determination.
[20]    Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: if the person’s condition causing the impairment; is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[21]
[21] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[22]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[22] Section 6(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; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[23]
[23] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[24]
(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.
[24] 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.[25]
[25] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[26] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[27] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[28]
[26]    Section 10 of the Determination.
[27]    Sections 10(3) and (4) of the Determination.
[28]    Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[29]
[29] Section 11(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; and
(b)be unable to work for at least 15 hours per week independently of a program of support; 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 program of support 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.[30]
[30] 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 becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[31]
[31] Sections 41 and 42; clauses 3 and 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.[32]
[32] 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 30 November 2017, being the date the Applicant lodged her claim for DSP, and ending 13 weeks later on 1 March 2018. 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.[33] The Respondent considers the Applicant’s impairments include neck, shoulder and back,[34] bilateral carpal tunnel syndrome[35] and psychological[36] conditions.
[33]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 30.
[34]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-11, paragraphs 32-40.
[35]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 41-45.
[36]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 12-13, paragraphs 46-49.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Applicant’s impairments 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 impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Hearing, the Applicant gave evidence under oath and openly responded to questions from the Tribunal and cross-examination from the Respondent. I consider that the Applicant was open with his answers to the questions he was asked and was forth coming in providing his evidence. The Applicant’s partner also gave evidence under oath and openly responded to questions from the Tribunal and cross-examination from the Respondent. It is clear that the Applicant’s partner provides him with a lot of support.
The Applicant told the Tribunal that he has made a number of previous claims for DSP and is frustrated by his functional impairments and the DSP process. I accept that the Applicant suffers impairments and that his life has substantially changed since he suffered a work place injury in 2014. It was clear that the Applicant’s preference is to be well and able to continue to work, however due to his medical conditions he feels unable to do so.
After discussing the available evidence in relation to the Applicant’s bilateral carpal tunnel syndrome condition, he told the Tribunal that he had not intended for this condition form part of his claim for DSP. The Applicant said he agreed that this condition could not be considered fully diagnosed, fully treated and fully stabilised at the Relevant Period. He agreed that he has not undergone the recommended surgery in relation to his bilateral carpal tunnel syndrome condition. This was consistent with the Respondent’s contentions.[37]
[37] Exhibit 2, Secretary’s Statement of Facts & Contention, page 11, paragraphs 41-42.
Consequently, based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s bilateral carpal tunnel condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period. Accordingly, this condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s neck, shoulder and back pain and psychological conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[38] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[39] 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.[40] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[41]
[38]    Section 6(3) of the Determination.
[39]    Section 6(4) of the Determination.
[40]    Section 6(2) of the Determination.
[41]    Section 8(1) of the Determination.
Neck, shoulder and back pain conditions
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant’s neck, shoulder and back pain conditions were fully diagnosed at the Relevant Period. This point is not in contention.[42]
[42] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 32.
In early 2014, the Applicant experienced a workplace injury.[43]
[43] Exhibit 1, T Documents, T5, page 55, Report: Dr Thomas Silva.
On 21 May 2014, the Applicant underwent an x-ray and MRI of his cervical spine and right shoulder.[44]
[44] Exhibit 1, T Documents, T4, pages 53-54, X-ray cervical spine, MRI cervical spine, X-ray right shoulder and MRI right shoulder.
On 30 July 2014, the Applicant attended an independent medico-legal examination with Dr Thomas Silva, orthopaedic surgeon.[45] Dr Silva provided a report dated 31 July 2014 and having reviewed the results of the x-rays and MRI’s he reported that the ‘specific diagnosis is right-sided brachialgia most probably mainly from right sided C5/6 disc protrusion and he has sensory right-sided C6 neuropathy, probably due to aggravation of pre-existing cervical spondylosis.’[46] Dr Silva summarised the diagnosis as ‘right scapular pain radiating to the neck and down the right shoulder to the right elbow which I think is a cervical spine injury with pain radiating to the right shoulder.’[47] Dr Silva recommended that the ‘treatment required is a referral not to a rehabilitationist but to a neurosurgeon who would initially treat him conservatively with neck traction, physiotherapy and perhaps a CT guided cortisone injection to the neck.’[48]
[45]    Exhibit 1, T Documents, T5, pages 55-60, Report: Dr Thomas Silva.
[46]    Exhibit 1, T Documents, T5, page 58, Report: Dr Thomas Silva.
[47]    Exhibit 1, T Documents, T5, page 57, Report: Dr Thomas Silva.
[48]    Exhibit 1, T Documents, T5, page 57, Report: Dr Thomas Silva.
On 6 February 2015, the Applicant attended the first of a number of independent medical examinations with Dr Mohammed Assem, rehabilitation specialist, who provided a report on the same day.[49] Dr Assem reported:[50]
…..
Radiological imaging has identified degenerative pathology in the cervical spine with multiple disc bulges and disc protrusion at the C5/6 level but there was not nerve root impingement. Radiological imaging of his right shoulder identified mild supraspinatus tendinosis with a tiny intrasubstance partial thickness tear.
…
He continues to have constant neck and right shoulder discomfort associated with restriction in movement. There is a marked restriction in right shoulder motion suggesting underlying adhesive capsulitis. Although there was some variability in shoulder range of motion, I noted that Dr Dalton examined him on 18 August 2014 and also documented a marked restriction in should flexion and abduction. He informed me that his symptoms have deteriorated since that time.
…..
He failed to respond to conservative treatment consisting of physiotherapy, ultrasound guided cortisone injections to his right shoulder and mild non-steroidal anti-inflammatory medication.
[49] Exhibit 1, T Documents, T9, pages 65-73, Report: Dr Mohammed Assem.
[50] Exhibit 1, T Documents, T9, page 70, Report: Dr Mohammed Assem.

In relation to future treatment, Dr Assam reported:[51]
An MR arthrogram would be necessary to determine if there is any adhesive capsulitis which may respond to manipulation under anaesthetic or hyfrodilation. Otherwise his progress will be very slow. He will most likely continue to have some residual restriction in shoulder movement as a consequence of the injury.
[51] Exhibit 1, T Documents, T9, page 71, Report: Dr Mohammed Assem.
On 4 March 2015, the Applicant attended an independent medical examination with Dr Lew Pierides, occupational physician, who provided a report on the same day.[52] Dr Pierides reported:[53]
I cannot give you a diagnosis at the current time other than I would lean towards the diagnosis of Dr Silva, which is a right sided cervical brachialgia. Unfortunately his presentation has now been clouded by significant psychological overlay.
…..
I cannot give you a prognosis without an appropriate diagnosis. I suggest nerve conduction studies … to determine if there is any neurological abnormality in the upper limbs.
[52] Exhibit 1, T Documents, T10, pages 74-80, Report: Dr Lew Pierides.
[53] Exhibit 1, T Documents, T10, page 78, Report: Dr Lew Pierides.
On 11 September 2015, the Applicant attended a further independent medical examination with Dr Assem, who provided a report on the same day.[54] Dr Assem’s report indicated that the Applicant’s pain had worsened and from a diagnostic perspective was consistent with his previous report.[55] In relation to future treatment, Dr Assem opined:[56]
He will most likely continue to have some residual neck and right shoulder discomfort with non-verifiable radicular complaints that will interfere with some of his activities. He would benefit from a referral to a pain management program or addiction specialist to gradually cease his requirements for narcotic analgesia.
…
[The Applicant] has reached maximum medical improvement. That is, his condition has been stable for at least three months and unlikely to change by more than 3% in the ensuing 12 months regardless of treatment. Although his symptoms may improve over the next 12 to 24 months, at this stage, he satisfied the conditions for maximal medical improvement.
[54]    Exhibit 1, T Documents, T12, pages 92-100, Report: Dr Assem.
[55]    Exhibit 1, T Documents, T12, pages 92-100, Report: Dr Assem.
[56]    Exhibit 1, T Documents, T12, page, 98, Report: Dr Assem.
On 13 July 2016, the Applicant attended a further independent medical examination with Dr Assem, who provided a report on the same day.[57] Dr Assem reported that there had been no change in his clinical findings.[58] In relation to subsequent progress, Dr Assem reported:[59]
He believes that his neck and right shoulder condition has deteriorated. He reported increase in pain, stiffness and weakness. He has not received any further treatment apart from Oxycontin 40mg and Zoloft 100 mgs.
[57]    Exhibit 1, T Documents, T16, pages 115-121, Report: Dr Aseem.
[58]    Exhibit 1, T Documents, T16, pages 115-121, Report: Dr Aseem.
[59]    Exhibit 1, T Documents, T16, page 117, Report: Dr Assem.
When contacted by Centrelink on 15 September 2016, the Assessor recorded that Dr Sameer Abedi, general practitioner, stated that in relation to the Applicant’s condition of neck C7 radiculopathy the Applicant needs surgery which is not currently covered by worker’s compensation and he could not afford that surgery.[60] Dr Abedi told the Assessor that the Applicant had attended one appointment with pain management for assessment but did not return to follow up appointments. He opined that future prognosis was poor.[61]
[60] Exhibit 1, T Documents, T19, pages 134-135, Additional Medical Evidence form DSP Record.
[61] Exhibit 1, T Documents, T19, pages 134-135, Additional Medical Evidence form DSP Record.
In a letter dated 6 December 2016, written for the purpose of the Applicant’s WorkCover claim, Dr Abedi opined:[62]
Since the work cover case was closed in July 2015, he has not been fit to resume any work duties. This has been due to his physical state and lack of options for rehab (without work cover) and also due to his mental state – he has gone on to develop depression and anxiety and not keen to engage in treatment options available under medicare.
To get [the Applicant] back to some level of function and work, he needs an extensive rehab program with a pain specialist, physio, psychologist and psychiatrist to help with his symptoms and potentially a neurologist review to provide updates on his diagnosis.
[62] Exhibit 1, T Documents, T21, page 148, Letter from Dr Abedi.
On 26 February 2018, the Applicant attended a further independent medical examination with Dr Assem, who provided a report on the same day.[63] Dr Assem’s opinion and diagnosis is recorded as:[64]
[The Applicant] has developed neck, right shoulder and lower back pain due to repetitive heavy lifting at work. He has radiological evidence of pathology consistent with the symptoms reported. Unfortunately, his back symptoms have recurred. He experiences severe pain and stiffness with non-verifiable radicular symptoms in both legs. Radiological imaging confirmed L4/5 disc protrusion impinging the existing L5 nerve roots.
Given his chronic neck, right shoulder and lower back complaints, it is highly unlikely that he will be able to perform any meaningful work in a regular and reliable manner. For practical purposes, he can be considered totally and permanently incapacitated.
[The Applicant] has reached maximum medical improvement. That is, his condition has been stable for at least three months and unlikely to change by more than 3% in the ensuing 12 months regardless of treatment. Although his symptoms may improve over the next 12 to 24 months, at this stage, he satisfies the conditions for maximal medical improvement.
[63] Exhibit 1, T Documents, T33, pages 219-225, Report: Dr Aseem.
[64] Exhibit 1, T Documents, T33, page 224, Report: Dr Aseem.
On 2 March 2018, the Applicant saw Dr Jatinder Randhawa, psychiatrist, who provided a report on the same day. Dr Randhawa reported: [65]
…. I understand he is seeing a Neurosurgeon in the future, and it needs to seen what treatment options are there for his neck and back problems. He may be referred to a pain specialist centre for further management of his pain. I also believe he would benefit from talking to a psychologist as in supportive psychotherapy.
[65] Exhibit 1, T Documents, T34, page 226, Letter from Dr Jatinder Randhawa.
The Persistent Pain Management Clinic at the Princess Alexandra Hospital wrote to Dr Maria Dowland, general practitioner, on 9 March 2018 acknowledging recept of the Applicant’s referral to the Pain Management Clinic and confirmed that he had been placed on the waiting list.[66]
[66] Exhibit 1, T Documents, T36, page 229, Letter form Executive Director of Medical Services, Princess Alexandra Hospital.
On 3 May 2018, the JCA recorded that the Applicant had reported that he ‘last saw an orthopaedic specialist in 2015 has not yet seen a pain clinic and has not had any hydrotherapy’.[67]
[67] Exhibit 1, T Documents, T38, page 239, JCA Report.
In a letter dated 11 July 2018, Dr Dowland reported that the Applicant has seen a specialist and his chronic back pain has stabilised, he is on the waiting list for the pain clinic and that he cannot be helped with surgery and just has to live with his condition and his chronic pain.[68]
[68] Exhibit 1, T Documents, T40, page 247, Letter from Dr Dowland.
Dr Dowland provided a response dated 3 October 2018 to a Basic Rights Queensland questionnaire.[69] Dr Dowland:
·Opined that the Applicant’s chronic severe incapacity neck back pain and shoulder pain was fully diagnosed from 2015.
·Opined that all reasonable treatments had been undertaken in 2016-2017 which are likely to result in significant functional improvement in the next two years.
·Outlined the treatment as cortisone injections and physiotherapy.
·Considered that the Applicant should be assigned 20 impairment points under Table 4 of the Impairment Tables and that this rating would first apply in 2014.
·Provided that the Applicant was unable to perform any overhead activities, was unable to turn head or bend neck without moving trunk, unable to bend forward to pick up light objects from a desk or table and was unable to remain seated for at least 10 minutes without getting pain.
·Answered no in relation to the question ‘.. is it likely that, even with all further reasonable treatments and potential retraining your patient will be presented solely by the impairments to which you answered yes in question 1 and 2 from work in any job within the next 2 years in the open market in Australia sustainable for a period of at least 26 weeks ….’. She provided that this was her view ‘because he has not had any improvement in the last 5 years’.[70]
[69] Exhibit 4, Basic Rights Queensland questionnaire completed by Dr Dowland.
[70] Exhibit 4, Basic Rights Queensland questionnaire completed by Dr Dowland.
With respect to Dr Dowland her responses to the questionnaire were to some extend confusing and contradictory and it was unclear as to what conditions she was referring to in her responses beyond page 4 of the questionnaire.
The Respondent submitted that in circumstances where the primary symptom affecting the Applicant was pain and the Applicant has not undertaken a recommended pain management program or presented to a neurosurgeon, the Tribunal cannot be satisfied that the condition was fully treated and stabilised.[71]
[71] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 32.
The Respondent contends that the reports of Dr Assem do not go as far as to evidence that the pain conditions were fully treated and stabilised under the Act.[72] The Respondent contends at most, the reports evidences Dr Assem’s opinion in relation to the workers’ compensation process that the Applicant was engaged in and that Dr Assem expected the Applicant’s symptoms to improve over the ‘next 12 to 24 months’.[73]
[72] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 37.
[73] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 36-37.
The Respondent further contends that although on 3 October 2018, Dr Dowland reported that there had been no improvement to the Applicant’s condition for five years, this does not of itself indicate that the condition is fully treated and stabilised, especially in circumstances where the Applicant remains on a waitlist at a Pain Management Clinic following a referral by Dr Dowland.[74]
[74] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraph 38.
The Respondent contends that the Applicant’s neck, shoulder and back pain conditions were not fully treated and fully stabilised during the Relevant Period as he had not undertaken reasonable treatment consisting of completion of the recommended pain management program and review by a neurosurgeon.[75]
[75] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-11, paragraph 32-40.
At the Hearing, the Applicant’s partner told the Tribunal:
·That she has been living with the Applicant since September 2017.
·That during the Relevant Period she was not working and was taking the Applicant to all of his medical appointments that were between a 5 minute to 40 minute drive away.
·That during the Relevant Period she was doing all of the house work and most of the driving as the Applicant was unable to do these things due to his pain.
·During the Relevant Period, she had witnessed the Applicant being in constant pain and this affected his moods and quality of life.
·During the Relevant Period, the Applicant could shower himself and brush his teeth.
·During the Relevant Period, the Applicant was constantly tired due to his medication. He would get up in the morning take his medication and be on the lounge most of the day.
·She attended the Applicant’s consultation with Dr Assam in Sydney in February 2018. They drove to Sydney. It took longer than usual because they needed to stop regularly due to the Applicant’s pain. The Applicant did drive for short periods.
·The Applicant’s condition has definitely gotten a lot worse, he is in more pain and the medication is taking its toll.
At the Hearing the Applicant told the Tribunal:
·He considers that his condition was fully stabilised 3 months after his injury in 2014 as per Dr Assam’s reports.
·He does not believe anyone has said he should have surgery for his back, neck or shoulder.
·He does not understand why when Dr Dowland says that his condition is fully treated and fully stabilised and he should be assigned 20 points why that opinion is not acceptable.
·He suffers everyday with pain. His body will never be the same. He is no longer able to go fishing or surfing.
·His right side has deteriorated.
·He has to use his left hand to do everything.
·He had 40-50 sessions of physiotherapy in the first year after his work place injury and he reengaged at the physiotherapist at his GP’s surgery, however they told him that there is nothing they could do that would be of benefit to him. He said it scares you to be told that.
·He has been told that his condition is not operatable. Where the disc bulges on his nerve system an operation would have more complications and no one wants to take the risk.
·He has regular quartertone injections.
·He takes pain medication.
·He did not attend a pain management program in New South Wales. He did not remember attending the one session as referred to by Dr Abedi.
·His referral to the pain management program at the Princess Alexandra Hospital was changed to a facility in Beenleigh. He attended a telephone consultation of about 30 minutes in duration and that they talked to him about joining a methadone program. They did not recommend he come in.
·He did not want to undertake a pain management program if it means being on a methadone program as he has an addictive personality. He said he “did not want to line up in the Chemist each day to get methadone, he is not a junkie”.
·He understands that the recommendation to attend a pain management clinic is reasonable but that it will not physically fix his condition but mentally assist him to deal with the pain.
·He finished school early and had always worked in manual labour jobs and that was what he thought he would do all of his life. It is hard to be told that you will never be able to do those kinds of things again.
·That during the Relevant Period:
oHe could wash his hair left handed.
oHe could move his neck a little bit to the left, but not to the right without moving his trunk. He relies on his mirrors when driving rather than turning his neck too much.
oHe is able to bend to pick up a plate off the dinner table and take it to the sink.
oHe could sit for more than 10 minutes however he would be uncomfortable and would have to keep getting up to move around.
·His condition has gotten worse.
In considering the medical evidence before the Tribunal, I accept that the chronic pain resulting from the Applicant’s neck, shoulder and back conditions has been progressively worsening. The evidence from Dr Assem and Dr Dowland make this clear, however neither have provided a view in relation to whether any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years. There is evidence before the Tribunal from multiple medical practitioners that opine that the Applicant would benefit from engagement in a pain management program and review by a neurosurgeon.
I accept the contentions of the Respondent in relation to the weight that should be placed on Dr Assem’s reporting that the Applicant had reached maximum medical improvement, as it is clear from the report that Dr Assem’s opinion is based on the worker’s compensation requirements rather than the DSP requirements.
In relation to the questionnaire dated 3 October 2018 completed by Dr Dowland, it is accepted that the Applicant’s condition was fully diagnosed and it is acknowledged that Dr Dowland refers to the Applicant’s condition not improving in the last 5 years. However, Dr Dowland proceeded to refer the Applicant to a Pain Management Clinic and has not provided a view that this would not result in significant functional improvement. Further, Dr Dowland’s opinion in relation to the Applicant’s functional impairment is inconsistent with that reported in the other medical evidence and by the Applicant himself. As such I place no weight on this evidence.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s neck, shoulder and back pain conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period.
Accordingly, the Applicant’s neck, shoulder and back pain conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Even if I had of been satisfied that the Applicant’s neck, shoulder and back pain conditions were fully treated and fully stabilised at the Relevant Period and could be assessed under Table 4 of the Impairment Tables, at most, based on the evidence before the Tribunal these conditions as a whole could only be assigned 10 points. The Applicant’s evidence throughout the DSP process with the Respondent’s Assessors, the SSCSD and this Tribunal has been consistent and establishes that the Applicant’s functional impairment resulting from his neck, shoulder and back pain conditions did not meet the 20 points descriptors for Table 4.
Psychological condition
On 3 February 2015, Dr Abedi referred the Applicant to Mind Your Health noting in the referral letter that the Applicant has a history of depression.[76]
[76] Exhibit 1, T Documents, T8, page 64, Referral request: Dr Sameer Abedi.
In a letter dated 6 December 2016, written for the purpose of the Applicant’s WorkCover claim, Dr Abedi opined:[77]
Since the work cover case was closed in July 2015, he has not been fit to resume any work duties. This has been due to his physical state and lack of options for rehab (without work cover) and also due to his mental state – he has gone on to develop depression and anxiety and not keen to engage in treatment options available under medicare.
To get [the Applicant] back to some level of function and work, he needs an extensive rehab program with a pain specialist, physio, psychologist and psychiatrist to help with his symptoms and potentially a neurologist review to provide updates on his diagnosis.
[77] Exhibit 1, T Documents, T21, page 148, Letter from Dr Abedi.
On 2 March 2018, the Applicant saw Dr Jatinder Randhawa, psychiatrist, who provided a report on the same day. Dr Randhawa diagnosed the Applicant with ‘Chronic Adjustment Disorder with low mood’ and opined in relation to treatment: [78]
He may benefit from taking a mood stabiliser such as Epilim regarding his anger and irritability. Additionally, regular use of a small dose of Benzodiazepine would be helpful. That said, I note he is not keen to take any medications, for he sees his physical pain as the only problem. I understand he is seeing a Neurosurgeon in the near future, and it needs to seen what treatment options are there for his neck and back problems. He may be referred to a pain specialist centre for further management of his pain. I also believe he would benefit from talking to a psychologist as in supportive psychotherapy.
[78] Exhibit 1, T Documents, T34, page 226, Letter from Dr Jatinder Randhawa.

In the JCA Report dated 3 May 2018 the Assessor whose professional discipline is listed as registered psychologist, reported that with ‘further reasonable treatment such as review with Psychiatrist/Clinical Psychologist and ongoing Psychotherapy, it is possible that the prognosis of the condition will improve’.[79]
[79] Exhibit 1, T Documents, T38, page 237, JCA Report.
The Respondent contends that the Applicant’s psychological condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Respondent submitted that while the Applicant has been diagnosed by a psychiatrist with a mental health condition, he has not engaged in the recommended treatment including psychotherapy and pharmacological treatment, prior to or during the Relevant Period.[80]
[80] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 12-13, paragraphs 46-49.
At Hearing the Applicant’s partner told the Tribunal that since making the claim for DSP the Applicant’s psychological condition has worsened due to his pain and frustration at not being able to do what he could before.
At Hearing the Applicant told the Tribunal:
·He had only seen the psychiatrist once.
·He had seen a psychologist once before the Relevant Period however they just wanted to talk about his childhood and he was there to see them because of the pain.
·He has not had any further engagement with a psychiatrist or psychologist to date.
·It is very difficult being told that there is nothing anyone can do to help his conditions and that he will never be able to undertake meaningful work again.
To be considered fully diagnosed Table 5 of the Impairment Tables, which relates to Mental Health, requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[81]
[81] The Determination, Table 5.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am not satisfied that the Applicant’s psychological condition was fully diagnosed at the Relevant Period as the diagnosis made by Dr Randhawa was, albeit by only one day, made outside the Relevant Period.
Even if I was satisfied that the Applicant’s psychological condition was fully diagnosed I am not satisfied that the condition was fully treated and fully stabilised during the Relevant Period. The evidence before the Tribunal and that provided by the Applicant at Hearing indicate that the Applicant had not engaged with the recommended treatment for his psychological condition at the Relevant Period. Further, there is no evidence before the Tribunal that indicates that the recommended treatment for the Applicant psychological condition is unlikely to result in significant function improvement to a level enabling him to undertake work in the next 2 years.
Accordingly, the Applicant’s psychological condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
Continuing Inability to Work
As I have 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
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s bilateral carpal tunnel syndrome, neck, shoulder and back pain 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. I am unable to assign impairment points for these conditions.
I find that the Applicant’s psychological condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables. I am unable to assign impairment points for this condition.
I find that 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 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..........[SGD].....................
Associate
Dated: 7 November 2019

Date of hearing: 16 October 2019

Applicant: In person

Advocate for the Respondent: Mr David McLaren

Solicitors for the Respondent: Department of Human Services

[2019] AATA 4545

7 November 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	16 October 2019
Applicant:	In person
Advocate for the Respondent:	Mr David McLaren
Solicitors for the Respondent:	Department of Human Services