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

Wilks and Secretary, Department of Social Services (Social services second review) [2018] AATA 3646 (27 September 2018)
Division:GENERAL DIVISION
File Number: 2017/5752
Re:Isabel Wilks
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:27 September 2018
Place:Brisbane

The Tribunal affirms the decision under review.
........................[Sgd]................................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether medical conditions permanent – 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)
REASONS FOR DECISION
Member D K Grigg
27 September 2018
INTRODUCTION AND CLAIMS HISTORY

Ms Wilks lodged a claim for Disability Support Pension (“DSP”) on 19 October 2016 describing her medical conditions as “fusion of lower back” and “depression”.[1]
[1] Exhibit 1, T Documents, T4, page 98, Ms Wilks’s Claim for DSP dated 19 October 2016.
After a Job Capacity Assessment (“JCA”) the Department of Human Services (“Centrelink”) rejected Ms Wilks’ claim for DSP on the basis that her impairments did not attract an impairment rating of 20 points.[2]
[2] Exhibit 1, T Documents, T6, pages 112-113, Letter from Centrelink to Ms Wilks dated 14 February 2017.
Ms Wilks sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Ms Wilks’ medical conditions were either not fully diagnosed, treated and stabilised or did not attract an impairment rating of 20 points.[3]
[3] Exhibit 1, T Documents, T8, pages 124–131, Decision of ARO and notes dated 6 April 2017.
Ms Wilks then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Ms Wilks’ claim and affirmed the ARO’s decision on 24 August 2017.[4]
[4] Exhibit 1, T Documents, T2, pages 3- 9, SSCSD’s Decision and Reasons for Decision dated 24 August 2017.
Ms Wilks has sought a review of the SSCSD’s decision by this Tribunal.[5]
[5] Exhibit 1, T Documents, T1, pages 1-2, Ms Wilks’ Application for Review dated 21 September 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Wilks must have a physical, intellectual or psychiatric impairment;
(b)Ms Wilks’ impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[6]
(c)Ms Wilks must have a continuing inability to work.
[6] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Wilks meets the Section 94 Requirements is the date of the claim (in this instance as at 19 October 2016), unless Ms Wilks becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[7] Therefore, in order to qualify for DSP Ms Wilks must have met the Section 94 Requirements between 19 October 2016 and 18 January 2017 (“Qualification Period”).
[7] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Wilks’ impairments after the Qualification Period can only be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[8]
DID MS WILKS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[8]See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[9]
Ms Wilks’ Medical Conditions
[9] Determination, s 3.
Spinal Condition
In 2010 Ms Wilks injured her back.
An MRI of the thoracic lumbar spine performed in August 2013 demonstrated that Ms Wilks has “severe L5/S1 degenerative disease with a limited spondylolisthesis at this level”.[10]
[10] Exhibit 1, T Documents, T 15, page 166, Report of Dr Spittaler dated 3 November 2015.
Dr Isaacs, Orthopaedic Surgeon, reported in November 2013 that in his opinion:[11]
(a)when he examined Ms Wilks in August 2012 she had reached maximum medical improvement; and
(b)Ms Wilks was unable to perform work involving heavy lifting, constant bending, sitting or standing in one position for a prolonged period, or bending forwards frequently.
[11] Exhibit 1, T Documents, T12, page 157, Report of Dr Isaacs dated 7 November 2013
In April 2014 Ms Wilks had an L5/S1 posterior fusion.[12]
[12] Exhibit 1, T Documents, T 14, page 162, Report of Dr Kong dated 29 October 2015.
In October 2015 Dr Dale Kong, Occupational Physician, reported that Ms Wilks had no significant improvement in her lower back condition and that she continues to have chronic and constant lower back pain. In Dr Kong’s opinion Ms Wilks has “significant physical functional impairment”. Ms Wilks reported to Dr Kong that:[13]
[13] Exhibit 1, T Documents, T 14, pages 161 – 165, Report of Dr Kong dated 29 October 2015.
(a)her pain is worse when lying which affects her sleep quality;
(b)she has a walking tolerance of approximately 300 m;
(c)she has significant difficulties negotiating hills and steps and is slow and requires the assistance of a handrail;
(d)she could only stand for short periods before changing postures;
(e)she is limited around the home in terms of what she can do in the way of manual activity;
(f)she is able to do light duties but avoids bending, lifting or carrying activities which increase her lower back pain;
(g)she is independent in her daily living activities;
(h)a friend assists her approximately two weeks a month with general home duties such as cleaning and gardening;
(i)sometimes her right leg can give way and cause her to stumble;
(j)she has been referred to a pain clinic for pain management; and
(k)she takes Panadeine forte and Endone for pain relief.
Dr Kong reported that Miss Wilks had some diffuse tenderness over her lower lumbar spine and could forward flex to the level of her knees only.
In November 2015 Ms Wilks was assessed by Dr Spittaler, Consultant Neurosurgeon, who reported that:[14]
[14] Exhibit 1, T Documents, T 15, pages 166-169, Report of Dr Spittaler dated 3 November 2015.
(a)Ms Wilks had L5/S1 disc injury and degenerative spondylolisthesis;
(b)in November 2013 Miss Wilks had a right L5/S1 transforaminal injection which Ms Wilks reported did not help her right leg;
(c)he was not convinced that there was a root compression so he recommended repeating an MRI;
(d)in June 2014 he performed an L5/S1 posterior lumbar interbody fusion and found that Ms Wilks was having intermittent root compression as the intervertebral foramen was becoming stenosed from movement of the vertebra which was not apparent on the preoperative MRI;
(e)Ms Wilks’ leg symptoms resolved after the lumbar fusion but she had persisting lower back pain;
(f)he recommended physiotherapy and hydrotherapy for her back pain;
(g)Ms Wilks complained in December 2014 that her back symptoms were worsening, and he recommended that she attend a pain clinic, but Ms Wilks did not want to pursue this;
(h)when he saw Ms Wilks in June 2015 she was still struggling with back pain, he recommended a CT scan of her lumbar spine;
(i)the CT scan performed in July 2015 showed that there appeared to be good bone growth in the L5/S1 disc space;
(j)he wondered whether Ms Wilks ongoing back pain was coming from L4/5 disc pathology and referred her to a pain clinic for nonsurgical management of her mechanical back pain;
(k)she had no significant sciatic pain but has persisting ongoing back pain of a moderate degree;
(l)standing for long periods, bending, or lifting, was likely to worsen her lower back pain;
(m)Ms Wilks has reached maximum medical improvement;
(n)the prognosis for relief of her lower back pain is poor; and
(o)Ms Wilks will require further surgery if she develops further degenerative change or instability at the L4/5 level.
In February 2017 Dr Marney Wilson, General Practitioner, reported that Ms Wilks was suffering from chronic pain, insomnia, an inability to bend, lift, twist, push, pull and had easy fatigability as a result of her chronic low back pain and bilateral sciatica.[15] Dr Wilson reported that:[16]
(a)Ms Wilks’ current treatment was weekly massage and medications as required and that she had intensive rehabilitation in the past (including physiotherapy, hydrotherapy, acupuncture, massage, and the transforaminal injection, gym and exercise program) with no further active treatment contemplated;
(b)Ms Wilks still has severe low back pain which is expected to be permanent;
(c)Ms Wilks now has lower back and right leg pain and a secondary right plantarfasciitis ;
(d)Ms Wilks tends to trip over unpredictably;
(e)Ms Wilks’ pains are severe, constant and long-lasting;
(f)Ms Wilks has problems bending, twisting, pushing, pulling and lifting;
(g)Ms Wilks cannot stand or sit in one position for any length of time;
(h)Ms Wilks’ spinal condition is profoundly impacting her quality of life.
[15] Exhibit 1, T Documents, T 20, page 193, Medical certificate of Dr Wilson dated 7 February 2017.
[16] Exhibit 1, T Documents, T 21, page 194, Report of Dr Wilson dated 24 February 2017.
In March and June 2017 Dr Wilson reported that Ms Wilks was suffering from chronic pain, insomnia, an inability to bend, lift, twist, push, pull and had easy fatigability as a result of her chronic low back pain and bilateral sciatica.[17]
[17]Exhibit 1, T Documents, T 22, page 196, Medical certificate of Dr Wilson dated 23 March 2017; T 22, page 197, Medical certificate of Dr Wilson dated 1 June 2017.
In June 2017 Dr Wilson reported that Ms Wilks chronic back pain and leg pain have been fully diagnosed and treated and were stable and they would continue indefinitely.[18]
[18] Exhibit 1, T Documents, T 22, page 198, Report of Dr Wilson dated 1 June 2017.
In July and August 2017 Dr Wilson reported that Ms Wilks was suffering from chronic pain, insomnia, an inability to bend, lift, twist, push, pull and had easy fatigability as a result of her chronic low back pain and bilateral sciatica.[19]
[19]Exhibit 1, T Documents, T 22, pages 199 – 200, Medical certificates of Dr Wilson dated 18 July 2017 and 29 August 2017.
Mental Health Condition
In September 2013 Ms Wilks was referred to Mr Phillip Screen, Consultant Psychologist, with a provisional diagnosis of “adjustment disorder depression”. Mr Screen reported that Ms Wilks described symptoms consistent with the provisional diagnosis and that her symptoms are indicative of adjustment disorder with mixed anxiety and depressed mood. Ms Wilks reported the following symptoms to Mr Screen - “insomnia, lack of appetite, constant worrying/anxiety, emotional instability (crying without provocation), isolating herself socially and having no motivation”. The recommended treatment for Ms Wilks was psycho education, relaxation techniques, stress reduction techniques, cognitive behaviour therapy and antidepressant medication.[20]
[20] Exhibit 1, T Documents, T13, pages 158 – 160, Report of Mr Phillip Screen dated 10 February 2014.
Ms Wilks reported to Dr Kong in October 2015 that:[21]
(a)she had had no improvement in her psychological health;
(b)she had depression and finds it difficult to cope with her ongoing pain; and
(c)she is continuing to take antidepressants.
[21] Exhibit 1, T Documents, T 14, pages 161 – 165, Report of Dr Kong dated 29 October 2015.
Between 2013 and 2016 Ms Wilks was assessed by Dr Himalee Abeya, Consultant Psychiatrist. Dr Abeya reported in November 2015 that:[22]
[22] Exhibit 1, T Documents, T 16, pages 171 – 177, Report of Dr Abeya dated 18 November 2015
·Ms Wilks was of the view that her depressive symptoms have exacerbated
·in his opinion, Ms Wilks was likely to remain unfit to return to her role as a train guard
·Ms Wilks lives by herself
·despite his previous recommendation for her to have intensive psychotherapy treatment she had not been able to see a psychiatrist
·her depressive symptoms have been quite persistent and are overall worse than when he saw her on the last occasion
·Ms Wilks is quite socially isolated with significant anhedonia and negative thinking
·even with further intensive treatment he did not anticipate that she would be likely to change to the point that should be able to consider a return to work
·Ms Wilks has a major depressive disorder which is chronic in nature
·in his opinion prognosis of her condition is poor and there is unlikely to be a significant improvement in the foreseeable future
·he had encouraged her to pursue seeing a psychiatrist which she had agreed to do
In January 2016 Ms Wilks was evaluated by Dr Christopher Bench, Forensic Psychiatrist. Dr Bench had previously evaluated Miss Wilks in March 2014. Dr Bench reported that:[23]
[23] Exhibit 1, T Documents, T 18, pages 179 – 189, Report of Dr Bench dated 22 January 2016.
·He agreed with Dr Abeya that Ms Wilks had major depressive disorder
·Ms Wilks continues to have a depressed mood with biological symptoms of depression such as insomnia, lethargy, lack of libido, impaired appetite, poor concentration and motivation
·Ms Wilks has great difficulty enjoying any activities and has complete anhedonia
·Ms Wilks has ongoing difficulties of passive suicidal ideation
·Ms Wilks depressive illness impacts on most aspects of her functioning
·Ms Wilks lives independently but relies heavily upon frozen meals and frequently misses meals
·Ms Wilks showers and brushes her teeth daily but frequently has days where she stays in her pyjamas all day
·occasionally her brother will drag her out to a local coffee shop but she has not participated in recreational activities outside the family home on an independent basis and has not done so for more than two years
·she enjoys spending time with her dog
·she reported difficulties with her attention and concentration being limited to doing crosswords for 15 minutes
·she is no longer able to complete genealogy tasks because it requires too much attention and concentration
·she has impaired interpersonal functioning
·Ms Wilks is unable to return to her preinjury employment as a train guard and with the current level of lethargy, poor concentration, low motivation, tearfulness and being easily overwhelmed, there are no restrictions that could be put in place that allowed her to return to work on a full or part-time basis in her preinjury employment
·Ms Wilks condition has reached maximum medical improvement
·Ms Wilks has engaged in low intensity psychotherapy for more than two years
·“Unfortunately she has not accessed appropriate psychiatric or psychological treatment over the course of the past two years in spite of her significant symptomology and impairments. This has resulted in the chronicity of her illness been quite marked”.
·Ms Wilks is likely to require psychiatric medication on a lifelong basis and will be vulnerable to further episodes of depression
·Ms Wilks’ “prognosis would be improved” with more appropriate psychiatric and psychological treatment and it was his “strong opinion” that Ms Wilks be referred to a psychiatrist forthwith
·Ms Wilks has only been treated with moderate doses of an antidepressant medication in spite of what she has described as a deteriorating mood state and that this is wholly inadequate. A psychiatrist would be able to identify a psychopharmacological treatment regimen that would at least assist and improve her symptomatology
·Ms Wilks required in the vicinity of 12 to 18 sessions with a psychiatrist on an annual basis for the first 1 - 2 years
·Ms Wilks should also be referred to a psychologist with expertise in one of the evidence based psychotherapies such as cognitive behaviour therapy to specifically address her depression
·Ms Wilks may benefit from a period of inpatient psychiatric admission in order to attempt to kick start her recovered recovery
·“it is evident that she has engaged in inadequate treatment now for greater than two years. It may be that a relatively brief inpatient admission would allow more aggressive changes to a psychopharmacology regimen as well as much more intensive psychotherapy”.
In February 2017 Dr Wilson reported that as a result of her major depression and anxiety Ms Wilks was suffering from flat moods, insomnia, irritability, and has difficulty coping with stress or in crowds.[24] Dr Wilson reported that:[25]
(a)Ms Wilks’ adjustment disorder with mixed anxiety and depression has proven to be long-lasting;
(b)Ms Wilks is still taking medications and seeing a psychologist regularly;
(c)Ms Wilks continues to have flat moods, social withdrawal, inability to deal with stress or with crowds, irritability, insomnia, nightmares, poor concentration, impaired memory, easy exhaustibility – she is chronically tired, has anhedonia and suicidal ideation;
(d)Ms Wilks symptoms are all severe, constant and long-lasting and make it difficult for her to function day to day;
(e)Ms Wilks is reluctant to go out or have anything to do with people and gets easily confused; and
(f)it is likely that Ms Wilks will have her mental health conditions permanently and they may stay the same or get worse.
[24] Exhibit 1, T Documents, T 20, page 193, Medical certificate of Dr Wilson dated 7 February 2017.
[25] Exhibit 1, T Documents, T 21, pages 194-195, Report of Dr Wilson dated 24 February 2017.
In March and June 2017 Dr Wilson reported that Ms Wilks was suffering from flat moods, insomnia, irritability, and had difficulty coping with stress or in crowds as a result of her major depression and anxiety.[26]
[26]Exhibit 1, T Documents, T 22, page 196, Medical certificate of Dr Wilson dated 23 March 2017; T 22, page 197, Medical certificate of Dr Wilson dated 1 June 2017.
In June 2017 Dr Wilson reported that Ms Wilks mental health conditions have been fully diagnosed and treated and were stable and they would continue indefinitely.[27]
[27] Exhibit 1, T Documents, T 22, page 198, Report of Dr Wilson dated 1 June 2017.

In July and August 2017 Dr Wilson reported that Ms Wilks was suffering from flat moods, insomnia, is irritability, and had difficulty coping with stress or in crowds as a result of her major depression and anxiety.[28]
[28]Exhibit 1, T Documents, T 22, pages 199 – 200, Medical certificates of Dr Wilson dated 18 July 2017 and 29 August 2017.
Conclusion on Impairment
The Secretary accepts that Ms Wilks suffers from impairments for the purposes of section 94(1)(a) during the Qualification Period.[29]
[29] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 11 June 2018, para 5.1.
Considering the medical evidence, the Tribunal finds that during the Qualification Period Ms Wilks suffered from a Spinal Impairment and a Mental Health Impairment, for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
DOES MS WILKS’ IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[30] They are function based[31] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[32]
[30] Determination, ss 4(2) and 5(2)(a).
[31] Determination, ss 5(2)(b) and (c).
[32] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[33]
(a)Ms Wilks’ condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[33] Determination, see s 6(3).
Ms Wilks’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[34]
(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.
[34] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[35] the following must be considered:[36]
(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.
[35] For the purposes of ss 6(4)(a) and (b) of the Determination.
[36] Determination, see s 6(5).
A condition is fully stabilised[37] if:[38]
(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[39]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[37] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[38] Determination, see s 6(6).
[39] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables Ms Wilks’ medical history, in relation to the condition causing the Impairments, must be considered.[40]
[40] Determination, see s 6(2).
IS MS WILKS’ SPINAL IMPAIRMENT AND CHRONIC PAIN CONDITION, PERMANENT?
Ms Wilks contends that her Spinal Impairment is made up of two separate medical conditions - the L5/S1 disc injury with degenerative spondylolisthesis and the chronic pain. Ms Wilks contends that the chronic pain, while stemming from the lumbar spine condition, is a separate and distinct symptom.[41]
[41] Exhibit 4, submissions of the applicant dated 11 February 2018, paragraph 16.
There is no dispute that Ms Wilks suffers from a mechanical back problem. There is also no dispute that there is no further surgical treatment available. However, this does not mean that the Spinal Impairment has been fully treated. The reference to “fully treated” in the context of DSP applications is a reference to treatments that are likely to significantly improve a person’s ability to function.
The medical reports indicate that the main issue arising from her Spinal Impairment is pain. Therefore, if the pain has not been treated, it cannot be said that Ms Wilks Spinal Impairment has been fully treated.
Counsel for Ms Wilks submitted that Ms Wilks condition has now stabilised and will only worsen with time. Dr Spittaler referred Ms Wilks to a pain specialist to treat the pain that was resulting from that condition. Ms Wilks has to date never attended a pain clinic or obtained specialist pain management advice.
The Tribunal finds that Ms Wilks’ degenerative Spinal Impairment and chronic pain condition have been fully diagnosed. However, the Tribunal is not convinced that this condition has been fully treated given that Ms Wilks has not attended a pain specialist as was recommended by the neurosurgeon.
Counsel for Ms Wilks submitted that Ms Wilks had already pursued the therapies one would expect to engage in at a pain clinic and had not improved. However, Dr Wilson, who gave evidence at the hearing, indicated that some of those therapies, such as physiotherapy, had not been undertaken for some time prior to the Qualification Period. There is no evidence from those allied health therapists to indicate that physiotherapy, hydrotherapy and so on were not of ongoing benefit to Ms Wilks.
Dr Wilson reported in January 2018 that Ms Wilks had had intensive rehabilitation involving physiotherapy, exercise programs and psychological support which was similar to what she would have experienced at a pain management clinic. If that was the case the Tribunal wonders why the neurosurgeon believed a referral to the pain management clinic was important. Dr Wilson also referred Ms Wilks to a pain specialist. One of the aspects of treatment that occurs at a pain management clinic is pharmacological treatment. Dr Bench certainly thought that Ms Wilks’ pharmacological treatment was inadequate. Dr Bench also refers to the fact that intensive psychology treatment had also not in fact occurred.
Dr Wilson said Ms Wilks had not tried pain medications apart from the Endone and Panadeine and had not changed her antidepressant medication. She said she had been prescribed gabapentin in 2015 but the PBS summary indicated that it was never filled by Ms Wilks. Dr Wilson agreed that a pain specialist would have reviewed Ms Wilks’ pain medication. Dr Wilson also accepted that Dr Spittaler’s recommendation that Ms Wilks be reviewed at a pain clinic was a reasonable recommendation to have made.
Dr Wilson also acknowledged that a referral to a pain clinic would have also have involved pain specialist review which had not been undertaken to date.
Counsel for Ms Wilks submitted that the purpose of Dr Spittaler’s referral was only to insure the pain did not worsen rather than to improve her ability to function. Dr Spittaler does not say that this is the reason for the pain clinic referral in his report. Dr Spittaler reports that he had discussed referring her to a pain clinic but Ms Wilks said she did not want to pursue that course of treatment. Dr Spittaler also questioned the cause of Ms Wilks ongoing back pain 12 months after the surgery, and wondered whether there was a new problem, given that the CT scans indicated there had been good bone growth in the L5/S1 disc space. Dr Spittaler reported that due to this unexplained continued pain he referred Ms Wilks to the pain clinic for an opinion. In the circumstances this seems like a reasonable suggestion to have been made by the neurosurgeon and there is no adequate explanation as to why Ms Wilks did not follow through with that referral. Ms Wilks told the Tribunal that she could not afford to go to a private pain clinic. However, Ms Wilks also acknowledged that she had not told her doctors that she could not afford to attend a pain clinic and she had not asked for a referral to a public clinic.
While the neurosurgeon does not comment on whether a significant improvement was likely if Ms Wilks attended a pain clinic, there is no evidence to suggest the reverse. Further, as was acknowledged by Ms Wilks’ Counsel, medical practitioners are unlikely to recommend a course of treatment if they believe it will have no impact on the patient.
The Tribunal finds that Ms Wilks’ Spinal Impairment and chronic pain condition were not permanent as required by the Act and therefore no Impairment Rating can be assigned.
IS MS WILKS’ MENTAL HEALTH IMPAIRMENT PERMANENT?
The Tribunal finds that that Ms Wilks’s Mental Health Impairment was fully diagnosed prior to the Qualification Period. This is accepted by the Secretary.[42] The issue is whether the condition was fully treated and stabilised.
[42] Exhibit 2, Secretary’s Statement of Issues Facts and Contentions dated 11 June 2018, para 6.9.
Ms Wilks submits that her mental condition began in 2000 and is a long-standing condition and therefore it is unlikely that there will be any significant improvement in her ability to function.
Dr Bench reports that Ms Wilks would have met the criteria for depression more than three years ago.
Ms Wilks also submits that she has been seeing a general practitioner and psychologist and taking antidepressant medication.
Counsel for Ms Wilks referred to the report of Dr Abeya where he wrote that “even with further intensive treatment, I do not anticipate that Ms Wilks condition is likely to change to the point that she will be able to consider a return to work”.[43] This report was provided as an independent clinical assessment for the purposes of her WorkCover claim. The reference to whether she could return to work was whether she could return to her previous role as a train guard not whether she was potentially unable to return to any work at all. Counsel for Ms Wilks also referred to Dr Bench’s opinion that Ms Wilks’ condition had reached maximum medical improvement. Ms Kinchina submitted that the psychiatric treatment recommended by Dr Bench and Dr Abeya was not reasonable treatment as there is no indication that it is likely to result in a significant increase in Ms Wilks’ ability to function.
[43] Exhibit 1, T Documents, T 16, page 174, Report of Dr Abeya dated 18 November 2015.
In November 2015 Ms Wilks reported to Dr Abeya that:
(a)she had continued her antidepressant Zoloft (100 mg);
(b)her general practitioner had referred her to see a psychiatrist;
(c)she had not yet secured an appointment with the psychiatrist; and
(d)she did not have the interest or the ability or indeed the energy to pursue it.[44]
[44] Exhibit 1, T Documents, T 16, page 173, Report of Dr Abeya dated 18 November 2015.
Dr Abeya’s report must be read as a whole. He also reported that he encouraged Ms Wilks to pursue seeing a psychiatrist and she had agreed to do so.[45] It is reasonable to infer that Dr Abeya made this recommendation because he believed it would benefit Ms Wilks.
[45] Exhibit 1, T Documents, T 16, page 177, Report of Dr Abeya dated 18 November 2015.
Dr Bench noted in January 2016 that Ms Wilks had still not seen a psychiatrist, had been on the current dose of Zoloft for almost 2 years and that she had been referred by Dr Wilson to see a psychiatrist but not yet had the appointment. Dr Bench noted that Ms Wilks had “not accessed appropriate psychiatric or psychological treatment over the course of the past two years in spite of her significant symptomatology and impairments… With more appropriate psychiatric and psychological treatment, it is [his] opinion her prognosis would be improved”. Dr Bench also noted that the moderate doses of antidepressant medication had been “wholly inadequate and surely a psychiatrist will be able to identify psychopharmacological treatment regimen that would at least assist and improve the claimant symptomatology”.[46]
[46] Exhibit 1, T Documents, T 18, pages 179 – 189, Report of Dr Bench dated 22 January 2016.
Dr Wilson reports in January 2018 that Ms Wilks had undertaken reasonable treatment and that in her opinion further treatment would not assist Ms Wilks. However Dr Wilson is not a consultant psychiatrist or clinical psychologist. At the hearing Dr Wilson said she had prescribed Zoloft 200 mg and had referred Ms Wilks to a psychiatrist in 2016 but she never attended an appointment.
The PBS summary indicates that Ms Wilks was supplied with Zoloft on 17 July 2016 and the next prescription was filled on 16 January 2017. Dr Wilson recommended that Ms Wilks take Zoloft consistently and the PBS summary indicates that Ms Wilks was not taking her prescribed medication of two tablets per day. Dr Wilson said that if Mrs Wilks had not been taking medication that had been recommended she is unlikely to be fully treated. There is no reason to doubt the PBS summary which is an official record of what medicines had been dispensed to Ms Wilks during the Qualification Period.
Dr Ashwinder Anand, Consultant Psychiatrist, reviewed Ms Wilks in November 2017 and had found that the increase in medication had considerably helped her and she was doing much better. This treatment occurred after the Qualification Period.[47]
[47]Exhibit 4, submissions of the applicant dated 11 February 2018, a neck show, Report of Dr Anand dated 28 November 2017.
Although the Tribunal notes that Ms Wilks has had psychology counselling and moderate doses of an antidepressant, the opinions and reports of Dr Abeya and Dr Bench indicate that Ms Wilks’ mental health condition had not been fully treated during the Qualification Period and that with intensive psychiatric treatment and appropriate pharmacology treatment that Ms Wilks may have had a significant improvement in her ability to function. Dr Bench reported that in his opinion “it is evident that she has engaged in inadequate treatment now for greater than two years”. On this basis it is clear to the Tribunal that Dr Bench is of the view that there is likely to be a significant improvement if Ms Wilks has appropriate intensive treatment.
The Tribunal finds that Ms Wilks’ Mental Health Impairment was not permanent as required by the Act and therefore no Impairment Rating can be assigned.
In the event that Ms Wilks’ Mental Health Impairment has now been fully treated and stabilised, it is open to her to make a new DSP claim.
WERE MS WILKS’ IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act.
The Tribunal has found that Ms Wilks Impairments were not permanent for the purposes of the Act, and no Impairment Rating was assigned. Therefore, Ms Wilks did not satisfy section 94(1)(b) of the Act at the Qualification Date.
DID MS WILKS HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
The Tribunal has concluded that Ms Wilks’s Impairment did not attract an impairment rating of 20 points or more under the Impairment Tables at the Qualification Date, therefore it is not necessary to consider whether Ms Wilks had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Ms Wilks’s claim fails. Her Impairments were not permanent during the Qualification Period and as a result she did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 69 (sixty -nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 27 September 2018

Date of hearing: 10 August 2018

Counsel for the Applicant: Ms Paulina Kinchina

Solicitors for the Applicant: Peter Rogers, MRM Lwyers

Advocate for the Respondent: Ms Jacky Vetter

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 3646

27 September 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date of hearing:	10 August 2018
Counsel for the Applicant:	Ms Paulina Kinchina
Solicitors for the Applicant:	Peter Rogers, MRM Lwyers
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers