Weeding; Secretary, Department of Social Services and (Social services second review) - [2023] AATA 2767

Weeding; Secretary, Department of Social Services and (Social services second review) [2023] AATA 2767 (29 August 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9832
Re:Secretary, Department of Social Services
APPLICANT

AndAnne Weeding
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:29 August 2023
Place:Canberra

Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and makes a decision in substitution for the decision so set aside that Ms Weeding did not meet the requirement in subsection 94(1)(b) of the Social Security Act 1991 during the qualification period and is therefore not qualified for the disability support pension.
.......................[SGD].....................................
Member W Frost
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – disability support pension –- eligibility for disability support pension – whether the respondent’s impairments are fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review set aside
Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 43
Social Security Act 1991 ss 26, 27, 94
Social Security (Administration) Act 1999 Schedule 2
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher and Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Shi v Migration and Registration Authority [2008] HCA 31
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
REASONS FOR DECISION
Member W Frost
29 August 2023
INTRODUCTION

The Respondent, Ms Anne Weeding, is 47 years old.[1] She has multiple medical conditions that gave rise to her claim in February 2022 for the Disability Support Pension (DSP).[2]
[1] Exhibit 1, page 150.
[2] Ibid., pages 150-158.
Ms Weeding’s DSP claim was rejected by Services Australia (referred to here as the Agency) and an Authorised Review Officer (ARO) later affirmed the Agency’s decision. However, in October 2022, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) set aside the ARO’s decision and directed that Ms Weeding’s qualification for the DSP be reassessed on the basis that she satisfied the relevant legislative requirements of the Social Security Act 1991 (Act).[3]
[3] Ibid., pages 4-10.
The Applicant, the Secretary, Department of Social Services, applied to the General Division of the Administrative Appeals Tribunal (Tribunal) for review of the AAT1 decision.[4] In summary, the Applicant did not consider that Ms Weeding was qualified for the DSP at the date of her claim in February 2022, or within the relevant 13 weeks thereafter, because her conditions could not be assigned impairment ratings to meet the required 20 points in the impairment tables (Impairment Tables) set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Determination). The Applicant also contended that Ms Weeding did not have a continuing inability to work. Ms Weeding disputed the Applicant’s contentions and submitted that she was eligible for the DSP during the relevant period of time.
[4] Ibid., pages 1-3.
The Tribunal has considered all documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with the parties’ submissions and the written statements and oral evidence provided in support of Ms Weeding’s application.[5]
[5] Exhibits 3-14.
ISSUE
The issue before the Tribunal is whether Ms Weeding was qualified to receive the DSP at the date of her claim on 22 February 2022 or within the following 13 weeks.
BACKGROUND
On 22 February 2022, Ms Weeding lodged her DSP claim with the Agency.[6] In her claim form, Ms Weeding listed her disabilities or medical conditions as being ‘Exacerbation of Lumbar Spondylosis’ and ‘Adj Disorder Mixed Anxiety and Depressed moods’, both of which were said to have started on approximately 24 July 2021.[7]
[6] Exhibit 1, pages 150-158.
[7] Ibid., pages 153-154.
In March 2022, Ms Weeding’s claim for the DSP was rejected by the Agency on the basis of its assessment that her conditions did not amount to an impairment rating of 20 points or more under the Impairment Tables.[8]
[8] Ibid., pages 163-164.
In July 2022, following Ms Weeding’s request for review, an ARO affirmed the rejection of Ms Weeding’s DSP claim.[9] The ARO found that Ms Weeding’s lumbar spondylosis and adjustment disorder with mixed anxiety and depressed mood were fully diagnosed, but not fully treated and fully stabilised.[10]
[9] Ibid., pages 167-172.
[10] Ibid.
On 25 October 2022, following Ms Weeding’s application for review of the ARO decision,[11] the AAT1 set aside that decision and remitted it to the Agency for reconsideration in accordance with a direction that Ms Weeding’s qualification for the DSP be reassessed on the basis that she satisfied the requirements under subsections 94(1)(a) to (c) of the Act.[12] The AAT1 found that what was described in that decision as Ms Weeding’s ‘chronic pain’ condition was permanent and assigned a 20 impairment point rating, which therefore satisfied subsection 94(1)(b) of the Act requiring an impairment rating of 20 points under the Impairment Tables.[13] While the AAT1 also found that Ms Weeding’s ‘depression’ was ‘fully diagnosed’, it was not satisfied that it was ‘fully treated’ and ‘fully stabilised’.[14] Finally, the AAT1 was satisfied that Ms Weeding had a continuing inability to work and therefore satisfied subsection 94(1)(c) of the Act.[15]
[11] Ibid., pages 173-178.
[12] Ibid., pages 4-10.
[13] Ibid., pages 6-8.
[14] Ibid., page 8.
[15] Ibid., pages 8-10.
On 1 December 2022, the Applicant lodged an application with the Tribunal for review of the AAT1 decision, which application relevantly stated that the AAT1 erred in finding that Ms Weeding had:[16]
(a)a ‘chronic pain’ condition that was fully diagnosed, fully treated and fully stabilised, and caused a severe impairment under Table 1 of the Impairment Tables, relating to ‘Functions requiring Physical Exertion and Stamina’;
(b)an impairment of 20 points or more under the Impairment Tables and satisfied subsection 94(1)(b) of the Act; and
(c)a ‘continuing inability to work’ and satisfied subsection 94(1)(c) of the Act.
[16] Ibid., pages 1-3.
On 16 December 2022, the Tribunal made an order that the implementation of the AAT1 decision be stayed until this Tribunal’s decision came into operation or until further order of the Tribunal.[17]
CONSIDERATION
[17] Exhibit 11.
What is the qualification period for assessment of eligibility for the DSP?
Clause 4(1) in Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act) sets out how to determine the ‘start day’ for a social security payment, 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.
Pursuant to the above, the Tribunal is required to assess Ms Weeding’s DSP claim based on her conditions as at the date her claim was made or within the following 13 weeks.[18] The ‘start day’ for Ms Weeding’s claim for the DSP is the day she lodged that claim, which was 22 February 2022, and the 13 week qualification period therefore runs from that date until 24 May 2022. As explained to Ms Weeding at the Tribunal hearing, in accordance with the legislative requirements, if there has been any deterioration or change to Ms Weeding’s medical conditions suggesting that she may have become qualified for the DSP at a later time (that is, after the end of the qualification period in May 2022), it is irrelevant to the Tribunal’s consideration of her impairments during the qualification period and she may seek to make a new claim for the DSP based on the current status of her conditions.[19]
[18] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7]-[8]; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at 31-33.
[19] Shi v Migration and Registration Authority [2008] HCA 31 at [144] – [145].
As the Tribunal stated in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned her or her mind to all the relevant issues). The point is important as it is quite frequently the case that appeals on DSP decisions arrive at the Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for the Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
In this regard, the Federal Court of Australia in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 endorsed the principle, discussed in Harris[20] and Fanning,[21] that medical reports prepared after the qualification period will only be relevant to the extent that they refer to the applicant’s condition during the qualification period.[22]
[20] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252.
[21] Fanning and Secretary, Department of Social Services [2014] AATA 447.
[22] Gallacher and Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
Accordingly, the Tribunal can only consider Ms Weeding’s eligibility for the DSP within the qualification period commencing on 22 February 2022 and ending on 24 May 2022, assisted by medical information regarding her conditions as they were during that period, not following the end of that qualification period in May 2022.
What are the qualification criteria for the DSP?
Subsection 94(1) of the Act relevantly provides that a person is qualified for the DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work…
Plainly, from the terms of the above provision, each element of these qualification criteria must be satisfied for a person to qualify for the DSP.
The Impairment Tables for the DSP and the rules for their application (Rules) were made by legislative Determination pursuant to subsection 26(1) of the Act. In accordance with section 27 of the Act, the Impairment Tables to be applied by the Tribunal are contained in the Determination, which took effect from 1 January 2012.
As noted above in these reasons, under subsection 94(1)(b) of the Act, a person’s impairment must be determined to be 20 points or more under the Impairment Tables. As set out in section 5 of the Rules, the Impairment Tables are: function based rather than diagnosis based; describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Section 6 of the Rules sets out how to apply the Impairment Tables when assessing functional capacity and assigning impairment ratings for a person. When applying the Impairment Tables, the impairment ‘must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person’ (subsection 6(1)). The Impairment Tables may only be applied after the person’s medical history has been considered and an impairment rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment ‘is more likely than not, in light of available evidence, to persist for more than 2 years’ (subsections 6(2) and (3) of the Rules).
Subsection 6(4) of the Rules provides that a person’s condition is ‘permanent’ if each of the following criteria is met:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Subsection 6(5) of the Rules provides that the following is to be considered in determining whether a condition has been ‘fully diagnosed’ and ‘fully treated’ for the purposes of subsections 6(4)(a) and (b):
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Under subsection 6(6) of the Rules, a person’s condition is ‘fully stabilised’ if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The Rules provide, at subsection 6(7), that ‘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.
Relevantly, the presence of a diagnosed condition does not necessarily mean there will be an impairment to which an impairment rating can be assigned under the Impairment Tables if the condition has no functional impact on the person, including because there has been appropriate treatment for that condition (subsection 6(8) of the Rules).
Subsection 10(1) of the Rules states that table selection from the available Impairment Tables is to be made applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
When assigning an impairment rating, section 11 of the Rules provides that:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings (example: A rating of 15 cannot be assigned between 10 and 20); and
(c)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; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
Was there a physical, intellectual or psychiatric impairment?
The Tribunal is satisfied, based on the evidence before it, including Ms Weeding’s medical and related reports regarding her conditions, that Ms Weeding had impairments during the qualification period that met subsection 94(1)(a) of the Act, being that a person ‘has a physical, intellectual or psychiatric impairment’.
While the Applicant accepted that Ms Weeding suffered impairments so as to satisfy this criterion for qualification for the DSP, the Applicant contended that, during the qualification period, Ms Weeding’s conditions attracted a total impairment rating of 0 points under the Impairment Tables because they were not fully diagnosed, treated and stabilised, which accordingly did not satisfy subsection 94(1)(b) of the Act, being the requirement for a person to have an impairment ‘of 20 points or more under the Impairment Tables’. That central issue in the proceeding is addressed directly below in these reasons.
Do Ms Weeding’s conditions attract 20 points or more under the Impairment Tables?
The Tribunal considers Ms Weeding’s impairments below and whether they attract an impairment rating of 20 points or more so as to satisfy subsection 94(1)(b) of the Act.
Exacerbation of Lumbar Spondylosis
While the Tribunal accepts that Ms Weeding’s exacerbation of lumbar spondylosis condition was ‘fully diagnosed’ during the qualification period, it is not satisfied that the condition was ‘fully treated’ and ‘fully stabilised’ so as to be found to be a ‘permanent’ condition during the qualification period, as required by subsection 6(3) of the Rules. Therefore, based on the available evidence, the Tribunal is not satisfied that this condition can be assigned any impairment rating under the Impairment Tables.
To this end, the Tribunal sets out the relevant documentary evidence in relation to Ms Weeding’s exacerbation of lumbar spondylosis, as follows:
(a)On 28 July 2021, Dr James Stewart, General Practitioner, completed a ‘Work capacity certificate’ in relation to an injury suffered by Ms Weeding on 25 July 2021, which was described as ‘Severe Lower back Pain’.[23] The mechanism of the injury was described as occurring when Ms Weeding, then employed in an aged care facility, was grabbed by a resident and pulled forward when Ms Weeding was attempting to roll them in their bed.[24] Dr Stewart reported that Ms Weeding felt ‘instant pain’ in her back, ‘had to work the next day’, and had significantly increased pain ‘when squatted down to sponge resident’.[25] Dr Stewart certified that Ms Weeding required extensive physiotherapy and rehabilitation, together with pain medication until 29 October 2021 and had no functional capacity for any type of work until ‘16/08/2021’.[26] Additionally, Dr Stewart stated that Ms Weeding had very reduced movement ‘due to significant pain’ and estimated that it would be ‘2 weeks’ before she would return to some form of work duties.[27]
[23] Exhibit 1, page 108.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Ibid.
(b)On 11 August 2021, Dr Stewart completed a ‘Work capacity certificate’ in relation to Ms Weeding’s ‘Severe Lower back Pain’ and stated that she had no functional capacity for work until ‘15/09/2021’.[28]
[28] Ibid., page 109.
(c)On 25 August 2021, Dr Stewart completed another ‘Work capacity certificate’ in relation to Ms Weeding’s ‘Severe Lower back Pain’ and again stated that she required treatment until 29 October 2021, but did not indicate for how long she had no functional capacity for any type of work which, on 11 August 2021, was stated to be until ‘15/09/2021’.[29]
[29] Ibid., pages 109-110.
(d)Also on 25 August 2021, Dr Stewart completed a medical certificate stating that Ms Weeding had what were described as ‘Sever [sic] Lower back spams [sic]’ with a date of onset of 25 July 2021.[30] The symptoms were said to be severe lower back pain, reduced mobility, and an inability to travel in a motor vehicle or stand for more than 30 minutes.[31] Dr Stewart reported that the condition was temporary, the prognosis was uncertain and Ms Weeding was unfit for work or study until 1 October 2021.[32]
[30] Ibid., page 99.
[31] Ibid.
[32] Ibid.
(e)On 7 September 2021, Ms Weeding underwent an employment services assessment by telephone.[33] The subsequent Employment Services Assessment Report, made on 10 September 2021, stated that Ms Weeding had reported ‘severe back pain and spasms’ and functional ‘impacts/difficulties with bending, lifting and carrying, personal care (dressing), prolonged walking and standing (maximum 10-15 minutes), and completing daily living activities (cooking and cleaning); customer advises they are struggling to do “anything”’.[34] The Report further stated that, due to the ‘recent onset and likely considerable improvement of symptoms and level of functioning within 2 years, this condition is considered temporary for the purposes of this assessment’ with an expected duration of one year, from 7 September 2021 to 7 September 2022.[35]
[33] Ibid., pages 116-122.
[34] Ibid., page 117.
[35] Ibid.
(f)On 8 September 2021, Dr Stewart completed a ‘Work capacity certificate’ in relation to Ms Weeding’s ‘Severe Lower back Pain’ and again stated that she required treatment until 29 October 2021, but did not indicate for how long she had no functional capacity for any type of work.[36]
[36] Ibid., page 112.
(g)On 6 October 2021, Dr Stewart completed a medical certificate regarding Ms Weeding’s severe lower back spasms, which again were said to be temporary and the prognosis uncertain, but resulted in her unfitness for work or study until 30 November 2021.[37]
[37] Ibid., page 100.
(h)On 27 October 2021, Dr Tony Keays, Orthopaedic Surgeon, provided a report to WorkCover Queensland following his examination of Ms Weeding on 26 October 2021 for ‘Exacerbation of lumbar spondylosis’.[38] Dr Keays relevantly noted that ‘a CT of the lumbar spine’ was performed on 11 August 2021, which was ‘unremarkable with minor facet degenerative changes only’ and that in October 2021 Ms Weeding was attending weekly physiotherapy ‘with mobilisations, massage, machines and taping’, although she was ‘allergic to the taping’.[39] Ms Weeding told the Tribunal she agreed with this summation. Dr Keays further relevantly reported that:[40]
[38] Ibid., pages 123-129.
[39] Ibid., page 125.
[40] Ibid., pages 126-129.
As regards supratentorial [or psychogenic] effect, she moves in a guarded and protective manner. She holds her back with audible complaints, facial grimacing and crying. She has a stooped, antalgic gait. Her symptoms are aggravated by walking on toes and heels. There is tenderness to light touch in the lumbosacral area. Gentle axial compression of the neck and shoulders caused increased pain. There is altered sensation in the lumbar spine. Passive hip rotation in standing and sitting causes increased back pain. There is discrepant flexion in standing and sitting. Her symptoms are aggravated by testing reflexes. There is global alteration of sensation of the left leg. Straight leg raise in supine is 5⁰ bilaterally. Dorsiflexion of the left ankle causes increased symptoms, as does gentle axial heel compression. Passive hip rotation in supine, together with a gentle pelvic rock, causes increased pain. She was not examined in lateral or prone because of pain behaviour. All of the above are of supratentorial origin.
…
Numerous inconsistencies indicative of abnormal illness behavior dominate her clinical presentation (supratentorial effect).
…
The presence of significant abnormal illness behaviour indicates that Ms Weeding is likely to be refractory to conventional medical treatment.
Passive physiotherapy techniques are counter-productive as they serve to reinforce illness conviction and illness behaviour. Because of this, she requires cessation of all passive physiotherapy techniques which should be replaced by a supervised hydrotherapy and exercise program by an exercise physiologist. She has profound kinesiophobia (fear of movement) which needs to be addressed.
This program over the next six weeks will complete her medical management.
There is no radiculopathy that warrants interventional pain techniques or surgical treatment.
There are significant psychosocial and work issues which require counselling.
…
The work-related injury of 24 July 2021 is not yet stable or stationary and she has not reached maximum medical improvement.
…
The physical effects of her work injury will reach maximum medical improvement, following completion of a supervised hydrotherapy and exercise program.
(i)On 1 December 2021, Dr Stewart completed another medical certificate in relation to Ms Weeding’s severe lower back spasms, but did not indicate for how long this condition would remain or its prognosis.[41] Dr Stewart certified that Ms Weeding was unfit for work or study until 31 December 2021.[42]
[41] Ibid., page 101.
[42] Ibid.
(j)On 28 December 2021, Dr Curtis Gray, Psychiatrist, provided a report to WorkCover Queensland following an assessment of Ms Weeding on 20 December 2021.[43] Dr Gray relevantly reported that Ms Weeding’s ‘back pain has improved, however it is not totally resolved’ and that she ‘said that it is still a level of between 4 and 7, where 0 is no pain at all and 10 is the worst pain imaginable’.[44] Ms Weeding told the Tribunal at the hearing that this improvement was due to hydrotherapy treatment, but it was a ‘split second of a good moment’, because her condition worsened when this treatment stopped, the result being that her ‘medications were increased’ and she ‘couldn’t function properly’. Dr Gray further reported that this condition ‘might settle with her taking two Panadol, although does not always, and she reported experiencing “spasms”’.[45] He also recommended a ‘higher dose’ or ‘change’ of antidepressant medication.[46] Ms Weeding told the Tribunal her medications ‘kept fluctuating’ and ‘they’re still doing it’.
[43] Ibid., pages 136-146.
[44] Ibid., page 137.
[45] Ibid.
[46] Ibid., page 143.
(k)On 4 January 2022, Dr Jeffrey Lee, General Practitioner, completed a medical certificate for what were described as Ms Weeding’s severe lower back spasms and reported that the condition was a temporary exacerbation of a permanent condition, which was likely to persist for two years or more.[47] Dr Lee certified that Ms Weeding was unfit for work or study until 31 March 2022, with the symptoms estimated to affect this capacity for ‘13-24 months’.[48]
[47] Ibid., page 102.
[48] Ibid.
(l)On 28 January 2022, Dr Lee completed a medical certificate regarding Ms Weeding’s severe lower back spasms and reported that the condition was permanent, with the prognosis uncertain and Ms Weeding unfit for work or study until 27 April 2022.[49]
[49] Ibid., page 103.
(m)On 10 February 2022, just before the qualification period, Ms Nicole Cwiertnia, Exercise Physiologist, reported that Ms Weeding ‘has made outstanding progress physically in the last few sessions’ in relation to her ‘Lower Back’ injury and that she ‘has also diligently attended the gym and is reportedly enjoying it’.[50] Ms Cwiertnia further noted that Ms Weeding ‘noted her ability to now perform ADL’s [activities of daily living] around home including mowing the lawn and lifting her washing basket’ and that she ‘is currently working on returning to her pre-injury avocational activities including motorbike riding and is using the gym program to physically prepare herself’.[51] It was reported by Ms Cwiertnia that Ms Weeding had a ‘Moderate disability’ of ‘24%’ on the ‘Oswestry Disability Index’, compared to being ‘Crippled’ with a ‘76%’ index rating at the time of the initial assessment, the date of which was unspecified.[52] It was further noted, in relation to Ms Weeding’s lumbar spine range of motion, that on flexion her ‘Hands reach top of ankles’ and her ‘Extension’, ‘Lateral left’ and ‘Lateral right’ were all within ‘normal limits’.[53]
[50] Exhibit 2., pages 1-2.
[51] Ibid., page 1.
[52] Ibid.
[53] Ibid.
(n)Additionally, Ms Cwiertnia reported that: Ms Weeding could perform ‘14 repetitions’ of ‘Sit to stand in 30 seconds’ with ‘no pain’, whereas at her initial assessment she could perform ‘2 repetitions’; Ms Weeding could perform a sustained ‘lumbar spine flexion’ for ‘3 minutes’, whereas she had ‘No capacity’ at her initial assessment; and she could perform a ‘Ground to waist lift’ of ‘6kg x 10 repetitions’, whereas at her initial assessment she had ‘No capacity’ to do so.[54] Furthermore, Ms Cwiertnia commented that due to Ms Weeding’s progress, ‘coupled with the motivation she has recently demonstrated to improve, I plan to transition her to self management following her next review’.[55]
[54] Ibid.
[55] Ibid.
(o)At the Tribunal hearing, Ms Weeding said that she did not agree with the report of Ms Cwiertnia. Ms Weeding told the Tribunal that improvement in relation to her ‘Lower Back’ injury was due to the hydrotherapy sessions. She further told the Tribunal that she did not agree with the reports regarding her ability to perform activities of daily living, and again told the Tribunal that she did not accept these assessments from February 2022. Ms Weeding told the Tribunal that she did not believe the assessments put to her at the hearing and could not recall performing these exercises.
(p)On 17 February 2022, Dr Areej Amir, General Practitioner, relevantly reported that Ms Weeding suffered ‘severe back pain’, as a result of her workplace injury, which led to ‘significant functional limitations’.[56] Dr Amir also noted that Ms Weeding ‘is having ongoing sessions with her physiotherapist and psychologist for improvements in her level of daily functioning’.[57]
[56] Exhibit 1., page 149.
[57] Ibid.
(q)On 22 February 2022, Ms Weeding lodged her DSP claim the subject of this proceeding.[58]
[58] Ibid., pages 150-158.
(r)On 8 March 2022, which was during the qualification period, Dr Amir completed a ‘Work capacity certificate’ relevantly in relation to Ms Weeding’s ‘Spondylosis’.[59] Dr Amir stated that Ms Weeding required treatment until 28 February 2022, being before the date of the certificate, and did not indicate for how long she had no functional capacity for any type of work.[60] Dr Amir certified that Ms Weeding’s spinal function was affected by the condition and that she had ‘Pain and limitation on ROM [range of motion]’.[61]
[59] Ibid., page 113.
[60] Ibid.
[61] Ibid.
(s)Also on 8 March 2022, Dr Amir completed a medical certificate in relation to what was described in that document as Ms Weeding’s ‘Severe Back Pain’.[62] Dr Amir stated that the symptoms again included severe lower back spasms, severe pain and an inability to move, stand or sit for more than 30 minutes.[63] Dr Amir certified that Ms Weeding’s condition was a temporary exacerbation of a permanent condition, which was likely to persist for two years or more, with an uncertain prognosis and resulted in her being unfit for work or study until 8 March 2022, being the date of the medical certificate.[64]
[62] Ibid., page 104.
[63] Ibid.
[64] Ibid.
(t)On 11 April 2022, and still during the qualification period, Dr Amir completed a ‘Work capacity certificate’ relevantly in relation to what was described as Ms Weeding’s ‘Spondylosis/severe back pain’.[65] Dr Amir stated that Ms Weeding required treatment until 11 April 2022, being the date of the certificate, and did not indicate for how long she had no functional capacity for any type of work.[66] Dr Amir certified that Ms Weeding’s spinal function was affected by the condition and that she had ‘sever [sic] Pain and limitation on ROM, unable to lift heavy onjects [sic], walking limitations’.[67]
[65] Ibid., page 114.
[66] Ibid.
[67] Ibid.
(u)Also on 11 April 2022, Dr Amir completed a medical certificate in relation to Ms Weeding’s severe lower back spasms, severe pain and inability to move, stand or sit for more than 30 minutes.[68] In this document, Dr Amir certified that this condition was temporary with the prognosis uncertain, but that Ms Weeding was unfit for work or study until 11 July 2022.[69] Dr Amir also relevantly stated that planned treatment included ongoing physiotherapy and exercise physiology.[70] At the hearing, Ms Weeding told the Tribunal she did not have further physiotherapy, because of Dr Keays’ recommendation for this treatment to cease, but that she participated in hydrotherapy; there was no documentary evidence of such treatment.
[68] Ibid., page 106.
[69] Ibid.
[70] Ibid.
(v)On 2 July 2022, Dr Bruce McPhee, Spinal Surgeon, provided a report to WorkCover Queensland following an assessment of Ms Weeding’s ‘Low back pain’ on 28 June 2022, which he diagnosed as ‘Soft tissue strain of the lumbar spine’.[71] Dr McPhee referred to the aforementioned CT scan of Ms Weeding’s lumbar spine in August 2021 which showed ‘only minor facet joint degenerative changes with no neural compression throughout the lumbar spine’ and that the ‘sacroiliac joints are reported as normal’.[72] Dr McPhee relevantly stated that, on the basis of ‘abnormal clinical findings’, the Orthopaedic Surgeon Dr Keays had concluded that ‘there was a significant supratentorial affect’, there was ‘no radiculopathy that warranted intervention’ and the ‘significant psychosocial and work issues required counselling’.[73] Dr McPhee stated that ‘I am in agreement with Dr Keays’ findings and conclusion which is supported by current objective evidence’.[74] Dr McPhee further relevantly reported that:[75]
[71] Exhibit 2, pages 3-8.
[72] Ibid., page 5.
[73] Ibid., page 6.
[74] Ibid.
[75] Ibid., pages 6-8.
The claimant’s clinical presentation was not consistent with the history and radiological findings. During the assessment, the claimant demonstrated a number of abnormal clinical findings not consistent with organic low back disease. The range of forward flexion varies widely between sitting and standing, and straight leg raising is not consistent, being normal when distracted. Sensory changes in the left leg are not consistent with an organic neurological disorder. there is sufficient clinical evidence to conclude that Mrs Weeding demonstrates abnormal illness behaviour.
…
There are confounding psychological factors which would appear to have a far greater impact on Mrs Weeding’s ongoing symptoms, incapacity and failure to return to work…From a medical point of view, her incapacity cannot be explained by any lumbar spine condition.
…
Mrs Weeding has been through the rehabilitation process with improvement. Ongoing treatment depends on the management of pain with appropriate analgesia…a regular exercise program to improve lumbar spine mobility, core strength and aerobic fitness is advised. Rehabilitation is now at the claimant’s own cognisance. As no specific treatment is indicated or recommended, her condition can be deemed to have reached maximum medical improvement.
…
It is evident that there is ongoing incapacity arising from a lower back condition. Nonetheless there are significant psychological issues in play.
…
There is radiological evidence of minor age-related degeneration in the lumbar spine. There is no evidence of injury or significant degeneration to explain the severe back pain and incapacity.
…
On the basis of the evidence I would consider that the incapacity for work and ongoing symptoms are mostly due to psychological issues, there being no significant underlying cause for the low back pain.
(w)On 11 July 2022, Dr Amir completed a ‘Work capacity certificate’ relevantly in relation to Ms Weeding’s ‘Spondylosis/severe back pain’.[76] Dr Amir stated that Ms Weeding required treatment until 11 July 2022, being the date of the certificate, and did not indicate for how long she had no functional capacity for any type of work.[77] Dr Amir also again certified that Ms Weeding’s spinal function was affected by the condition and that she had ‘sever [sic] Pain and limitation on ROM, unable to lift heavy onjects [sic], walking limitations’.[78]
(x)Also on 11 July 2022, Dr Amir completed a medical certificate in relation to Ms Weeding’s severe lower back spasms, severe pain and inability to move, stand or sit for more than 30 minutes.[79] Dr Amir certified that this condition was a temporary exacerbation of a permanent condition with an uncertain prognosis and that Ms Weeding was unfit for work or study until 11 October 2022.[80]
(y)On 14 October 2022, Dr Amir completed a ‘Work capacity certificate’ relevantly in relation to Ms Weeding’s ‘Spondylosis/severe back pain’ and stated that she required treatment until 11 January 2023 and then would again be reviewed.[81]
(z)On 13 January 2023, Dr Amir completed another medical certificate relevantly in relation to Ms Weeding’s ‘Spondylosis/severe back pain’.[82] Dr Amir stated that Ms Weeding required treatment from that date until 14 April 2023, including pain medications, physiotherapy and hydrotherapy.[83] Dr Amir did not indicate for how long Ms Weeding had no functional capacity for any type of work, but again certified that Ms Weeding had ‘severe Pain and limitation on ROM, unable to lift heavy onjects [sic], walking limitations’.[84] Dr Amir also completed a ‘Work capacity certificate’ in relation to Ms Weeding’s ‘Spondylosis/severe back pain’ and stated that she would be reviewed again on 14 April 2023.[85]
(aa)On 9 February 2023, Dr John Byrnes, General Practitioner, completed a medical certificate in relation to what was described as Ms Weeding’s chronic low back pain and spondylosis.[86] This was recorded as Ms Weeding’s primary condition.[87] Dr Byrnes certified that the duration of the functional impact was expected to be from ‘13 weeks up to 24 months’ and that Ms Weeding’s incapacity for work, study or participation in activities would last until 30 April 2023.[88]
(bb)On 28 April 2023, Dr Byrnes completed another medical certificate in relation to Ms Weeding’s chronic low back pain and spondylosis.[89] This was now recorded as Ms Weeding’s secondary condition, with her primary condition being ‘anxiety/depression’ and ‘adjustment disorder’.[90] Dr Byrnes again certified that the duration of the functional impact was expected to be from ‘13 weeks up to 24 months’.[91]
[76] Exhibit 1, page 115.
[77] Ibid.
[78] Ibid.
[79] Ibid., page 107.
[80] Ibid.
[81] Exhibit 5.
[82] Exhibit 2, page 17.
[83] Ibid.
[84] Ibid.
[85] Exhibit 6.
[86] Exhibit 2, page 15.
[87] Ibid.
[88] Ibid.
[89] Exhibit 4.
[90] Ibid.
[91] Ibid.

As demonstrated from the medical evidence set out above, Ms Weeding was diagnosed with some form of back or spinal condition shortly after her workplace injury in July 2021. Over the last two years, this condition has variously been described as severe lower back pain, severe lower back spasms, severe back pain, spondylosis, spondylosis/severe back pain, low back pain, chronic low back pain, soft tissue strain of the lumbar spine and exacerbation of lumbar spondylosis.
Based on the weight of evidence, the Tribunal finds that Ms Weeding’s back or spinal condition was ‘fully diagnosed’ during the qualification period, with the Tribunal accepting the diagnosis made by Dr Keays, Orthopaedic Surgeon, in his report dated 27 October 2021, given his specialised skills and medical qualifications to make a relevant diagnosis, his consideration of the available diagnostic imaging and medical reports and the relatively contemporaneous nature of that diagnosis in October 2021 to the date of the injury in July 2021, and to the beginning of the qualification period in February 2022. To confirm, Dr Keays diagnosed Ms Weeding with exacerbation of lumbar spondylosis with ‘low back pain, radiating to the anterior and posterior aspect of the left thigh and leg’.[92]
[92] Exhibit 1, page 126.
For completeness, and based on the available medical evidence, the Tribunal is not satisfied that Ms Weeding’s condition can be found to be a ‘chronic pain’ condition. Although she told the Tribunal at the hearing that she is ‘consistently in agony’ in her lower back region, there was no diagnosis or corroborating evidence from an appropriately qualified medical practitioner that Ms Weeding had a chronic pain condition during the qualification period. The only independent evidence referring to chronic pain was contained in a letter from Dr Navin Naidoo dated 11 July 2023, over one year after the qualification period, which stated that Ms Weeding ‘has been prescribed’ certain ‘medicinal cannabis products for chronic pain’.[93]
[93] Exhibit 14.
Despite the Tribunal’s above finding that Ms Weeding’s exacerbation of lumbar spondylosis was ‘fully diagnosed’ during the relevant period of time, based on the weight of evidence, the Tribunal finds that Ms Weeding’s condition was not ‘fully treated’ and ‘fully stabilised’ during the qualification period from 22 February 2022 to 24 May 2022. As set out above in these reasons, while Dr Keays in October 2021 stated that Ms Weeding’s condition ‘will reach maximum improvement, following completion of a supervised hydrotherapy and exercise program’, he also noted that the ‘presence of abnormal illness behaviour indicates that Ms Weeding is likely to be refractory to conventional medical treatment’.[94] In this regard, Dr Keays noted that there ‘are significant psychosocial and work issues which require counselling’.[95] In July 2022, being two months after the end of the qualification period, Dr McPhee, Spinal Surgeon, stated that he agreed with Dr Keays’ findings and conclusions and that, from a medical perspective ‘her incapacity cannot be explained by any lumbar spine condition’.[96] Despite this, Dr McPhee recommended a ‘regular exercise program to improve lumbar spine mobility, core strength and aerobic fitness’, although he noted that Ms Weeding’s ongoing symptoms ‘are mostly due to psychological issues, there being no significant underlying cause for the low back pain’.[97] That is, both Dr Keays and Dr McPhee opined that Ms Weeding’s condition was largely due to her psychological condition and not from a physical condition. Ms Weeding told the Tribunal that she disputed these findings. However, the identification by these medical professionals of the involvement of psychological component to this physical condition underscores the inability of such a physical condition being found by the Tribunal to be ‘fully treated’ and ‘fully stabilised’ during the qualification period.
[94] Exhibit 1, pages 128-129.
[95] Ibid., page 128.
[96] Exhibit 2, page 6.
[97] Ibid., page 7.
To this end, the medical evidence demonstrates that the prognosis of Ms Weeding’s exacerbation of lumbar spondylosis condition was at various times stated to be uncertain and temporary. Most relevantly, on 11 April 2022, being during the qualification period, Dr Amir completed a medical certificate in relation to what the doctor described as Ms Weeding’s severe lower back spasms, severe pain and inability to move, stand or sit for more than 30 minutes.[98] Dr Amir certified that this condition was temporary with the prognosis uncertain and planned treatment included physiotherapy and exercise physiology.[99] The Tribunal finds that this evidence indicates that, during the qualification period, there was uncertainty as to whether the impairment resulting from Ms Weeding’s exacerbation of lumbar spondylosis would persist for more than two years, as required by subsection 6(3)(b) of the Rules, and treatment was continuing or planned in the next two years, which means it was not ‘fully treated’ during the relevant time, as required by subsection 6(5) of the Rules.
[98] Exhibit 1, page 106.
[99] Ibid.
To this end, in August 2021, being before the qualification period, Dr Keays, Orthopaedic Surgeon, reported that the ‘presence of significant abnormal illness behaviour indicates that Ms Weeding is likely to be refractory to conventional medical treatment’ and that ‘passive physiotherapy techniques are counter-productive as they serve to reinforce illness conviction and illness behaviour’.[100] Dr Keays recommended the ‘cessation of all passive physiotherapy techniques’ and these be replaced by ‘a supervised hydrotherapy and exercise program by an exercise physiologist’.[101] There was no corroborating evidence of a hydrotherapy program being completed by Ms Weeding and she told the Tribunal that she disagreed with the opinion of the exercise physiologist in February 2022, being just before the qualification period, that she had at that time made ‘outstanding progress physically’.[102] Accordingly, for all of the above reasons, and taken together with aforementioned underlying psychological component to this condition, the Tribunal cannot be satisfied that Ms Weeding’s physical condition was ‘permanent’ because it was not ‘fully treated’ and ‘fully stabilised’, as required by subsection 6(4)(b) and (c) of the Rules, in order to be assigned an impairment rating in accordance with paragraph 6(3) of the Rules to the Impairment Tables.
[100] Ibid., page 128.
[101] Ibid.
[102] Exhibit 2, page 1.
Additionally, based on the evidence set out above, the Tribunal is not satisfied that, during the qualification period, further reasonable treatment was unlikely to result in significant functional improvement to enable Ms Weeding to undertake work in the next two years, as required under subsection 6(6)(a) of the Rules, or that significant functional improvement to a level enabling Ms Weeding to work in the next two years was not expected even if there was reasonable treatment, as required by subsection 6(6)(b) of the Rules. In this regard, and most significantly, Ms Weeding had not participated in a pain management program to properly address the physical and psychosocial aspect of this condition and Dr Keays opined in October 2021 that it was not appropriate to consider suitable employment ‘given her significant mental health issues which need to be addressed’.[103] In his reports dated 28 December 2021 and 2 August 2022, Dr Gray, Psychiatrist, recommended that Ms Weeding consider ‘attendance at a pain management program (if this is medically indicated in the context of her physical injury)’.[104] Based on the medical evidence set out above in these reasons, the Tribunal finds that attendance at a pain management program by Ms Weeding was medically indicated, including in circumstances where the evidence demonstrates that her psychological symptomatology had a significant influence on her experience of physical pain and the ability to adjust to a physical injury. To this end, and for completeness, the Tribunal again notes the evidence of Dr Keays and Dr McPhee, that Ms Weeding’s presentation had numerous inconsistencies indicative of, or demonstrating, ‘abnormal illness behaviour’ or ‘significant supratentorial effect’ and that she had significant mental health issues that needed to be addressed.[105] Dr McPhee opined that Ms Weeding’s ‘confounding psychological factors’ appear to have ‘a far greater impact’ on her ‘ongoing symptoms, incapacity and failure to return to work’ and that these ongoing symptoms are ‘mostly due to psychological issues, there being no significant underlying cause for the low back pain’.[106]
[103] Exhibit 1, page 129.
[104] Ibid., pages 143 and 185.
[105] Ibid., pages 127 and 129; Exhibit 2, page 6.
[106] Exhibit 2, pages 6-7.
At the Tribunal hearing, Ms Weeding said that she had completed a pain management program as recommended by Dr Gray in December 2021 and August 2022, the latter being outside the qualification period. In this regard, Ms Weeding referred to the aforementioned letter from Dr Naidoo dated 11 July 2023 regarding the prescription of ‘medicinal cannabis products for chronic pain’.[107] However, this documentation did not refer to a pain management program. Ms Weeding told the Tribunal she had seen Dr Naidoo for ‘nearly two years’ in relation to her ‘chronic back pain’, but agreed that she had no further evidence from Dr Naidoo to corroborate her evidence regarding attendance at, and completion of, a pain management program, as recommended by Dr Gray, including during the qualification period. When pressed on her completion of a pain management program, Ms Weeding told the Tribunal that she that undertook a ‘pain management thing’ in hospital following her admission in May 2023 for her mental health, being one year after the qualification period, but that she could not get those records released for this proceeding.
[107] Exhibit 14.
Furthermore, and in line with the above findings, just prior to the qualification period, on or around 10 February 2022, Ms Cwiertnia, Exercise Physiologist, recorded that Ms Weeding ‘has made outstanding progress physically in the last few sessions’ and noted ‘her ability to now perform ADL’s [activities of daily living] around home including mowing the lawn and lifting her washing basket’.[108] The report detailed a number of the physical improvements Ms Weeding was recorded to have made between her initial assessment and that performed on the cusp of the start of the qualification period in February 2022.[109] Additionally, Ms Cwiertnia indicated that Ms Weeding was ‘currently working on returning to her pre-injury avocational activities including motorbike riding and is using the gym program to physically prepare herself’.[110] The relatively contemporaneous documentation to the time of the qualification period indicates that Ms Weeding was then able to perform a range of movements and had made substantial progress with her physical condition. Based on this and the other available medical evidence, even if the Tribunal had found that Ms Weeding’s condition was ‘permanent’ as required by the Rules, it would not have found that Ms Weeding had a ‘severe’ functional impairment as required by Table 4 of the Impairment Tables relating to Spinal Function, being the relevant impairment table for this condition, so as to meet the 20 point impairment rating threshold for eligibility for the DSP. That is, based on the weight of medical evidence, the Tribunal is not satisfied that Ms Weeding was, during the qualification period, unable to: perform any overhead activities; turn her head, or bend her neck, without moving her trunk; or bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes.
[108] Exhibit 2, page 1.
[109] Ibid.
[110] Ibid.
Having regard to all of the available evidence, the Tribunal finds that Ms Weeding’s condition of exacerbation of lumbar spondylosis was not ‘fully treated’ and ‘fully stabilised’ during the qualification period, as required by subsection 6(4)(b) and (c) of the Rules. Accordingly, the Tribunal finds that Ms Weeding’s exacerbation of lumbar spondylosis condition was not ‘permanent’, as required in order to be assigned any impairment rating under the Impairment Tables, pursuant to subsection 6(3) of the Rules, because it was not ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’. That is, Ms Weeding’s exacerbation of lumbar spondylosis condition was not ‘permanent’ during the qualification period from 22 February 2022 to 24 May 2022 and the Tribunal therefore does not assign any impairment rating to this impairment under the Impairment Tables.
Adjustment Disorder with Mixed Anxiety and Depressed Mood
The Tribunal is not satisfied that Ms Weeding’s adjustment disorder with mixed anxiety and depressed mood was ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ during the qualification period, as required by subsection 6(4) of the Rules.
To this end, the Tribunal sets out the relevant documentary evidence in relation to Ms Weeding’s adjustment disorder with mixed anxiety and depressed mood, as follows:
(a)Between 25 August 2021 and 28 January 2022, medical certificates completed by Ms Weeding’s general practitioners stated that she had ‘Anxiety and depression’.[111] The symptoms entailed Ms Weeding being emotional, having panic attacks, poor sleep and poor concentration.[112]
[111] Exhibit 1, pages 99-103.
[112] Ibid.
(a)On 7 September 2021, Ms Weeding underwent an employment services assessment by telephone.[113] The subsequent Employment Services Assessment Report, made on 10 September 2021, stated that Ms Weeding had reported ongoing symptoms of ‘low mood, anxiety, social anxiety, anger, severe distress, feeling emotional, suicidal ideation’ with the functional impacts or difficulties being ‘social isolation, leaving the house, motivation, and concentration’.[114] Ms Weeding’s then current treatment for what was recorded as anxiety consisted of daily medication, fortnightly psychology sessions, a six week mental health program and reviews with her general practitioner.[115] This treatment was reported to be continuing into the future.[116]
[113] Ibid., pages 116-122.
[114] Ibid., page 118.
[115] Ibid., page 118.
[116] Ibid.
(b)On 27 October 2021, Dr Keays, Orthopaedic Surgeon, relevantly noted that Ms Weeding’s past medical history included having ‘had depression since the age of 14 years’.[117] As referred to above in these reasons in relation to Ms Weeding’s exacerbation of lumbar spondylosis, Dr Keays opined that ‘abnormal illness behaviour’ dominated Ms Weeding’s clinical presentation and it had a ‘supratentorial origin’.[118] Dr Keays further noted that there ‘are significant psychosocial and work issues which require counselling’ and Ms Weeding has ‘significant mental health issues which need to be addressed’.[119]
[117] Ibid., page 125.
[118] Ibid., page 127.
[119] Ibid., pages 128-129.
(c)On 17 November 2021, Mr Luke Simmons, Provisional Psychologist, reported that Ms Weeding was continuing to undertake psychology sessions for ‘depression and anxiety’.[120] It was noted that, on both 22 September 2021 and 17 November 2021, Ms Weeding scored in the ‘extremely severe’ category for all three elements of the ‘DASS 21’, being depression, anxiety and stress.[121]
[120] Ibid., page 130.
[121] Ibid.
(d)On 28 December 2021, Dr Curtis Gray, Psychiatrist, provided a report to WorkCover Queensland following an assessment of Ms Weeding on 20 December 2021.[122] Dr Gray relevantly opined that:[123]
[122] Ibid., pages 134-146.
[123] Ibid., pages 143 and 145.
Anne Weeding is a 45-year-old lady who sustained an injury to her lumbar spine in a workplace incident approximately five months ago, which has led to ongoing pain and significant functional limitations with respect to both vocational and non-vocational activities. These are significant losses for this lady, and in response to these matters she has developed reactive emotional symptomatology that is indicative of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Her condition has been exacerbated by other workplace stressors separate to her physical injury of 24 July 2021 including a perception of bullying, and perception of a lack of support, and a perception that the behaviour of more senior staff at her former employer has contributed to unfavourable outcomes for some residential aged care facility residents including, in one instance, a death. Naturally, as a psychiatrist, I am unable to confirm or refute any of these latter matters, however I am able to confirm that it is my opinion that the painful injury sustained on 24 July 2021, which is the subject of this claim, has been a significant factor leading to the development of this lady’s Adjustment Disorder symptomatology.
At the present time, Ms Weeding is experiencing ongoing symptoms of the diagnosable Adjustment Disorder, and she is not yet optimally treated. She might benefit from an additional ten (approximately) sessions of psychological therapy/support, consideration of a higher dose of her antidepressant/antianxiety medication or a change of this medication to a pain moderating antidepressant/antianxiety agent such as Endep or Cymbalta, and perhaps even attendance at a pain management program (if this is medically indicated in the context of her physical injury). I could therefore not state that her condition (Adjustment Disorder) has reached a stable and stationary state.
…
Hospitalisation is not indicated but ongoing and additional treatment…certainly is.
(e)In or around January 2022, Mr Simmons, Provisional Psychologist, provided a ‘Confidential Psychological Report’ to WorkCover Queensland and noted that in or around September 2021 he diagnosed Ms Weeding as having ‘Adjustment Disorder…with mixed anxiety and depressed mood’.[124] Mr Simmons had considered differential diagnoses of ‘Posttraumatic Stress Disorder’ and ‘Major Depressive Disorder, single episode, moderate’, however these were ‘dismissed’.[125] It was reported that Ms Weeding ‘continues to have a range of depressive, stress and anxiety symptoms and becomes emotionally upset when discussing subjects related to’ her former place of employment.[126] Mr Simmons opined that Ms Weeding ‘no longer meets the diagnostic criteria for Adjustment Disorder’ with mixed anxiety and depressed mood’, because ‘once the stressor or its consequence have terminated, symptoms should not persist for more than an additional 6 months’, which had elapsed.[127] He therefore diagnosed Ms Weeding with ‘Posttraumatic Stress Disorder’ (PTSD) and recommended ‘10 fortnightly face-to-face sessions of CBT (trauma focused) or EMDR with a trained psychologist’.[128]
[124] Ibid., pages 203-215.
[125] Ibid., page 209.
[126] Ibid., page 213.
[127] Ibid., page 214.
[128] Ibid.
(f)On 17 February 2022, Dr Amir relevantly reported that Ms Weeding was ‘deemed to have Adjustment disorders and mixed Anxiety and Depression’ and was ‘having ongoing sessions with her…psychologist for improvements in her level of daily functioning’.[129]
[129] Ibid., page 149.
(g)On 22 February 2022, Ms Weeding submitted her DSP claim the subject of this proceeding.[130]
[130] Ibid., pages 150-158.
(h)From 8 March 2022, being during the qualification period, to 11 July 2022, medical certificates completed by Dr Amir, General Practitioner, stated that Ms Weeding had ‘Anxiety and depression + adjustment disorder’.[131]
[131] Ibid., pages 104-107.
(i)On 8 March 2022, during the qualification period, Dr Amir certified that this condition was a temporary exacerbation of a permanent condition which was likely to persist for two years or more.[132] Also on 8 March 2022, Dr Amir completed a ‘Work capacity certificate’ and relevantly stated that Ms Weeding was suffering from ‘anxiety/depression/adjustment disorder’.[133] The prescribed treatment plan included ‘psychologist and psychiatrist reviews’.[134] Dr Amir also noted in relation to Ms Weeding’s psychosocial functioning that she will ‘not be able to return to aged care work again’ and she was severely ‘traumatised’.[135]
[132] Ibid., page 104.
[133] Ibid., page 113.
[134] Ibid.
[135] Ibid.
(j)On 11 April 2022, and still during the qualification period, the medical certificate completed by Dr Amir recorded that the condition was temporary.[136] Also on 11 April 2022, Dr Amir completed a ‘Work capacity certificate’ relevantly in relation to Ms Weeding’s ‘anxiety/depression/adjustment disorder’.[137]
[136] Ibid., page 106.
[137] Ibid., page 114.
(k)On 11 July 2022, Dr Amir completed another ‘Work capacity certificate’ relevantly in relation to Ms Weeding’s ‘anxiety/depression/adjustment disorder’.[138]
[138] Ibid., page 115.
(l)On 17 July 2022, Mr Simmons, Provisional Psychologist, provided a ‘Confidential Psychological Report’ to WorkCover Queensland detailing 11 sessions conducted with Ms Weeding from January to July 2022.[139] Mr Simmons relevantly stated that, at a session in mid-April 2022, Ms Weeding reported that she had ‘not been taking her anti-depressants’, but by 4 May 2022 she was once again ‘taking her medication’.[140] During the last reported session on 12 July 2022, the ‘Suicide Risk Screener’ was completed by Ms Weeding which indicated that she was ‘of moderate or high risk for suicide and that she was experiencing thoughts of suicide most of the time and did not have a current plan for suicide completion’.[141] However, on 14 July 2022, Mr Simmons was informed that Ms Weeding was ‘threatening suicide’.[142] Despite changing his diagnosis of Ms Weeding’s mental health condition from Adjustment Disorder to PTSD in January 2022, in July 2022 Mr Simmons reported that the condition for which she was being treated was ‘Adjustment Disorder’.[143] He opined that ‘her condition (Adjustment Disorder) has reached a stable state’ and ‘she is not yet optimally treated’, with fortnightly ‘Trauma Focused CBT sessions’ recommended.[144]
[139] Ibid., pages 218-227.
[140] Ibid., pages 221-222.
[141] Ibid., page 224.
[142] Ibid.
[143] Ibid., page 225.
[144] Ibid.
(m)On 2 August 2022, Dr Gray, Psychiatrist, provided a supplementary report to WorkCover Queensland following a further assessment of Ms Weeding on 1 August 2022.[145] Dr Gray relevantly reported that:[146]
[145] Ibid., pages 182-194.
[146] Ibid., pages 190-191.
Anne Weeding is a 45-year-old lady who I have seen on two occasions within the last none months. She developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood after sustaining a back injury in her workplace on 24 July 2021, and this unfortunately appears to have worsened with time and despite appropriate treatment. I note that she has been reviewed by a senior orthopaedic surgeon who considers that her physical diagnosis, with respect to the back injury, is that of a sprain/strain, and that she has 0% impairment. I understand that she was quite upset by this. In any event, Ms Weeding continues to report disabling pain despite the relatively innocuous physical findings, and a worsening of the Adjustment Disorder symptoms. In my opinion, she is now describing features of either a Major Depressive Disorder with Anxious Distress or a worsening of the Adjustment Disorder, with comorbid alcohol abuse. A DSM-5 diagnosis of Alcohol Use Disorder can therefore be made currently.
Ms Weeding’s treatment has not been unreasonable, however I would consider that, from a psychiatric perspective, it has only been “first line”. She now requires a change of antidepressant medication with consideration of pain moderating antidepressants e.g. Endep, duloxetine. She may require augmentation of her antidepressant therapy. These steps would be best overseen by a consultant psychiatrist, and it is my recommendation that she should be referred to a suitably qualified psychiatrist as close to home as possible not on the Sunshine Coast e.g. at Pine Rivers Private Hospital. I am not confident that her ongoing psychological therapy is particularly helpful, and I would not agree that Ms Weeding is suffering with Posttraumatic Stress Disorder as she does not fulfil diagnostic criteria. I would therefore not endorse any treatments that are recommended for this condition at the present time. In my opinion, the best way forward for this lady is the referral to a psychiatrist as noted and, when her mood has hopefully improved, engagement with a suitably qualified psychologist who can help her with the adjustment process and some pain management strategies.
…
Ms Weeding developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood. This appears to have worsened over the last eight months despite treatment, and I am concerned that the Adjustment Disorder as [sic] now evolved into a Major Depressive Disorder with Anxious Distress. At the same time, she appears to be developing an Alcohol Use Disorder.
…
Ms Weeding’s condition has worsened and it is not beyond possible that she may require psychiatric hospitalisation for further treatment…In my opinion, she requires an overhaul of her antidepressant therapy and attention to psychological therapy that incorporates pain management strategies. In respect of functional gains, I would be hopeful that these would broadly follow symptomatic improvement i.e. both vocational and non-vocational function would improve with symptomatic improvement.
(n)On 14 October 2022, Dr Amir completed a ‘Work capacity certificate’ relevantly in relation to Ms Weeding’s ‘anxiety/depression/adjustment disorder’ and noted the treatment she required included ‘psychologist and psychiatrist reviews’ until 11 January 2023 and then would again be reviewed.[147]
(o)On 13 January 2023, Dr Amir completed a medical certificate relevantly in relation to Ms Weeding’s ‘anxiety/depression/adjustment disorder’ and noted that she required treatment, including ‘psychologist and psychiatrist reviews’, from that date to 14 April 2023.[148] Dr Amir also completed a ‘Work capacity certificate’ in relation to Ms Weeding’s mental health condition and stated that she would be reviewed again on 14 April 2023.[149]
(p)On 6 February 2023, Cooinda Psychology Clinic confirmed an appointment for Ms Weeding on 16 February 2023.[150]
(q)On 28 April 2023, Dr John Byrnes, General Practitioner, completed a medical certificate relevantly in relation to Ms Weeding’s mental health condition, described as anxiety, depression and adjustment disorder.[151] In relation to past, current and planned treatment, Dr Byrnes recorded that Ms Weeding ‘finally started with psychiatrist’ and ‘various meds prior’.[152]
(r)On 11 July 2023, Ali Qureshi, Mental Health Clinician/Counsellor, noted that Ms Weeding ‘was previously diagnosed with Adjustment Disorder with depressed mood’ by Dr Gray in December 2021 and had ‘completed an assessment of Post Traumatic Stress Disorder and her symptoms are quite severe’; she ‘attends ongoing therapy’ and has been ‘under the care of Community Mental Health with no significant improvement to her impairment’.[153]
[147] Exhibit 5.
[148] Exhibit 2, page 17.
[149] Exhibit 6.
[150] Exhibit 2, page 10.
[151] Exhibit 4.
[152] Ibid.
[153] Exhibit 14.

On the available evidence, the Tribunal is not satisfied that, during the qualification period from 22 February 2022 to 24 May 2022, Ms Weeding’s adjustment disorder with mixed anxiety and depressed mood was ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’, as required by subsection 6(4) of the Rules in order to be found to have been ‘permanent’ at that time.
As set out above in these reasons, Dr Gray, Psychiatrist, in his report dated 28 December 2021 diagnosed Ms Weeding with Adjustment Disorder with Mixed Anxiety and Depressed Mood.[154] The Tribunal is satisfied that this diagnosis, before the qualification period commencing approximately two months later, was made by an appropriately qualified medical practitioner.[155] Despite Dr Gray’s diagnosis in late December 2021, in or around late January or early February 2022, Mr Simmons, Provisional Psychologist, diagnosed Ms Weeding with PTSD because she ‘no longer meets the diagnostic criteria for Adjustment Disorder’; those ‘symptoms should not persist for more than an additional 6 months’ once ‘the stressor or its consequences have terminated’.[156] Moreover, on 2 August 2022, being after the qualification period, Dr Gray opined that Ms Weeding’s condition ‘appears to have worsened over the last eight months despite treatment’ and considered that it had ‘now evolved into a Major Depressive Disorder with Anxious Distress’ and that she had also developed an ‘Alcohol Use Disorder’.[157] Dr Gray did not consider that Ms Weeding met the diagnostic criteria for PTSD.[158]
[154] Exhibit 1, page 144.
[155] Ibid., pages 143 and 144.
[156] Ibid., page 214. See also Exhibit 1, page 190.
[157] Ibid., page 192.
[158] Ibid., page 191.
Accordingly, the Tribunal finds that Ms Weeding’s adjustment disorder with mixed anxiety and depressed mood was not ‘fully diagnosed’ during the qualification period in circumstances where that diagnosis from December 2021 changed to PTSD in or around January and February 2022 and then changed again in August 2022 to Major Depressive Disorder with Anxious Distress.
Additionally, the Tribunal finds that Ms Weeding’s adjustment disorder with mixed anxiety and depressed mood was not ‘fully treated’ and ‘fully stabilised’ during the qualification period from 22 February 2022 to 24 May 2022. In this regard, Dr Gray in both his December 2021 and August 2022 reports opined that Ms Weeding ‘is not yet optimally treated’.[159] In the former report, Dr Gray recommended additional psychological therapy or support, consideration of a higher dose of medication and attendance at a pain management program.[160] In his latter report from August 2022, and again noting Dr Gray’s changed diagnosis in that report, he described Ms Weeding’s treatment ‘from a psychiatric perspective’ as having ‘only been “first line”’.[161] Dr Gray opined that Ms Weeding required an ‘overhaul of her antidepressant therapy’, a ‘change of antidepressant medication with consideration of pain moderating antidepressants’, referral to a suitably qualified psychiatrist who can ‘help her with the adjustment process and some pain management strategies’ and possible ‘psychiatric hospitalisation for further treatment.’[162] The documentary evidence of Dr Gray indicated that Ms Weeding had not undertaken all reasonable treatment for her psychological conditions during the qualification period, noting that it continued to evolve beyond that period of time and into 2023. Moreover, during the qualification period, Dr Amir reported that planned treatment included ongoing psychiatric support.[163] There was no evidence before the Tribunal of any psychiatric support for Ms Weeding during the qualification period, but rather this treatment occurred well after this time and in 2023. For these reasons, the Tribunal finds that further treatment was continuing or planned in the two years from the qualification period and reasonable treatment had not been undertaken as at the time of the qualification period. Therefore, Ms Weeding’s mental health condition could not be found to have been ‘fully stabilised’ and ‘fully treated’ during that period of time in accordance with subsections 6(5) and (6) of the Rules.
[159] Ibid., pages 143 and 185.
[160] Ibid., page 143.
[161] Ibid., page 191.
[162] Ibid., pages 191 and 193.
[163] Ibid., page 106.
Moreover, Mr Simmons, Provisional Psychologist, in a report from July 2022, stated that in a psychological session on 19 April 2022, during the qualification period, Ms Weeding had ‘not been taking her anti-depressants due to financial hardship’.[164] That is, Ms Weeding was not complying with her prescribed treatment regime during the qualification period. In addition, in February 2023, Ms Weeding commenced seeing a psychologist, which was approximately nine months outside of the qualification period ending in May 2022. Furthermore, at the hearing, Ms Weeding told the Tribunal that she was admitted to a hospital in May this year for psychological care.[165] She also gave evidence that ‘magnetic stimulation to my brain’ was administered at the hospital, which was ‘starting to help’ before Ms Weeding was ‘removed from the facility’.[166] The Tribunal understands this recent treatment to be ‘Repetitive Transcranial Magnetic Stimulation’, which is said to be ‘a medical treatment for major depression’.[167] All of this evidence indicates that various further reasonable treatments for Ms Weeding’s psychological conditions have continued beyond the qualification period.
[164] Ibid. page 221.
[165] Exhibit 2, pages 9-10. See also Exhibits 3 and 13.
[166] See Exhibit 12.
[167] Ibid.
Accordingly, based on all the available evidence, the Tribunal finds that, during the qualification period, Ms Weeding’s adjustment disorder with mixed anxiety and depressed mood was not ‘permanent’, as defined by subsection 6(4) of the Rules, and therefore, pursuant to subsection 6(3) of the Rules, the Tribunal cannot assign this condition an impairment rating under the Impairment Tables.
Other conditions
Ms Weeding referred to further conditions of ‘intellectual disability’, ‘alcohol abuse’ and ‘incontinence’, but there was no medical evidence from an appropriately qualified practitioner regarding the state of these conditions as they were during the qualification period under consideration by the Tribunal.[168]
[168] Exhibit 1, pages 155, 174 and 233.
Based on the available evidence, the Tribunal is not satisfied that any of these conditions were ‘permanent’ during the qualification period from 22 February 2022 to 24 May 2022, as required by subsection 6(3) of the Rules, in order to be assigned an impairment rating under the Impairment Tables. That is, these other conditions did not meet the requisite criteria under subsection 94(1) of the Act of being ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ during the relevant time under review by the Tribunal. Therefore, the Tribunal does not assign these additional conditions any impairment rating under the Impairment Tables. For completeness, however, the Tribunal sets out below the evidence regarding these other conditions which forms the basis for these findings.
Intellectual disability
Ms Weeding’s DSP claim lodged in February 2022 referred to her having an ‘intellectual disability with an assessed IQ of less than 70’, but there was no further evidence before the Tribunal regarding this condition.[169]
Incontinence
[169] Ibid., page 155.
On 2 July 2022, Dr McPhee, Spinal Surgeon, relevantly reported that Ms Weeding ‘says that coughing causes bladder incontinence’.[170] The report of Mr Simmons, Provisional Psychologist, dated 17 July 2022 referred to Ms Weeding reporting in mid-April 2022 ‘experiencing difficulties adjusting to issues that pertain to incontinence’.[171] Ms Weeding’s application to the AAT1 dated 22 August 2022 also reported this condition.[172] On 24 October 2022, being after the end of the qualification period, Ms Weeding underwent a job capacity assessment.[173] The accompanying Job Capacity Assessment Report relevantly stated that Ms Weeding ‘reported urinary incontinence’, but that ‘she hasn’t seen a gynaecologist or urologist for confirmation of diagnosis’, and ‘she hasn’t seen a continence nurse’.[174] Later, in November 2022, Ms Weeding completed an application form for the ‘Continence Aids Payment Scheme’ administered by the Commonwealth Department of Health.[175] In February 2023, Ms Weeding informed the Tribunal that she was awaiting acceptance into this scheme.[176] At the Tribunal hearing, Ms Weeding said that she ‘can’t go out in public’ because of this condition.
Alcohol abuse
[170] Exhibit 2, page 5.
[171] Exhibit 1, page 221.
[172] Ibid., page 174.
[173] Ibid., pages 228-238.
[174] Ibid., page 233.
[175] Exhibit 8.
[176] Exhibit 3.
In December 2021, being before the qualification period, Dr Gray, Psychiatrist, relevantly reported that Ms Weeding’s ‘alcohol consumption is minimal and occasional’.[177] However, in August 2022, being after the qualification period, Dr Gray reported that Ms Weeding ‘is also now consuming about one litre of bourbon per week, which is an increase for her’.[178] In that latter report dated 2 August 2022, Dr Gray opined that Ms Weeding:[179]
is now describing features of either a Major Depressive Disorder with Anxious Distress or a worsening of the Adjustment Disorder, with comorbid alcohol abuse. A DSM-5 diagnosis of Alcohol Use Disorder can therefore be made currently.
[177] Exhibit 1, page 140.
[178] Ibid., page 187.
[179] Ibid., page 191.
In Ms Weeding’s application to the AAT1 dated 22 August 2022, she reported having ‘turned to alcohol abuse’.[180] However, in October 2022, a job capacity assessor stated that Ms Weeding ‘reported that she does not have this condition’.[181] In this regard, at the Tribunal hearing, Ms Weeding said ‘alcohol abuse’ was ‘a lie’, she consumes ‘one bourbon a night’ and does not class herself as a ‘substance abuser’.
[180] Ibid., page 174.
[181] Ibid., page 232.
Nevertheless, as set out above, Dr Gray’s diagnosis in August 2022 of ‘Alcohol Use Disorder’ was made after the end of the qualification period, which commenced on 22 February 2022 and closed on 24 May 2022. Therefore, the Tribunal cannot find that this condition was ‘fully diagnosed’ during the qualification period, as required by subsection 6(4) of the Rules. Therefore, pursuant to subsection 6(3) of the Rules, Ms Weeding’s alcohol use disorder cannot be assigned any impairment rating under the Impairment Tables.
CONCLUSION
Ms Weeding made her claim for the DSP, the subject of this proceeding, in February 2022. Although Ms Weeding’s present circumstances are such that a different outcome may be reached if she lodged a new DSP claim with the Agency, for the purpose of the current review before the Tribunal, it must apply the terms of the Act and the Rules to her DSP application from 22 February 2022 and throughout the qualification period ending over one year ago on 24 May 2022.
As a result, and based on the available evidence set out above in these reasons, the Tribunal finds that, during the qualification period from 22 February 2022 to 24 May 2022, the impairments that result from Ms Weeding’s conditions could not be assigned an impairment rating of 20 points or more under the Impairment Tables. Ms Weeding therefore fails to satisfy subsection 94(1)(b) of the Act requiring an impairment rating of 20 points or more under the Impairment Tables.
Because the Tribunal has found that Ms Weeding did not have a total impairment rating of 20 points or more under the Impairment Tables, given the conjunctive nature of subsection 94(1) of the Act, requiring each element to be met, the Tribunal is not required to consider whether Ms Weeding had a ‘continuing inability to work’ pursuant to subsection 94(1)(c) of the Act, in order to determine whether she meets this subsequent element of the DSP qualification criteria.
Accordingly, for the foregoing reasons, the Applicant’s application before the Tribunal, seeking review of the AAT1 decision in Ms Weeding’s favour, is successful. That is, the Tribunal has decided that the correct or preferable decision is that Ms Weeding was not qualified for the DSP during the relevant period the subject of this proceeding. The Tribunal notes, however, that this does not diminish the nature of Ms Weeding’s conditions or their associated impairments, which are undoubtedly significant, but rather is a finding by the Tribunal that the requisite legislative criteria was not met during the qualification period which ended in May 2022. In this regard, as referred to above, Ms Weeding’s present circumstances may be such that a new application for the DSP may be approved and she is at any time able to make such a claim with the Agency, accompanied by contemporaneous evidence regarding her conditions and associated treatment in order to satisfy the legislative requirements.
DECISION
Pursuant to subsection 43(1)(c) of the AAT Act, the Tribunal sets aside the decision under review and makes a decision in substitution for the decision so set aside that Ms Weeding did not meet the requirement in subsection 94(1)(b) of the Act during the qualification period and is therefore not qualified for the disability support pension.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

..........................[SGD]..............................................
Associate
Dated: 29 August 2023

Date of hearing: 1 August 2023

Applicant: By telephone

Solicitor for Respondent: Ms Jacky Vetter, HWL Ebsworth Lawyers

Date of hearing:	1 August 2023
Applicant:	By telephone
Solicitor for Respondent:	Ms Jacky Vetter, HWL Ebsworth Lawyers