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

Williams and Secretary, Department of Social Services (Social services second review) [2018] AATA 1357 (10 May 2018)
Division:GENERAL DIVISION
File Number: 2017/4392
Re:Cain Williams
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes

Date:10 May 2018
Place:Perth

The Tribunal affirms the decision under review.
.....[sgd]...................................................................
Member C Edwardes
CATCHWORDS
Social Security – disability support pension – impairment tables – did applicant have 20 impairment points – continuing inability to work rating – participation in program of support - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1), ss 94(2), ss 94(3), ss 94(3B), ss 94(3C), ss 94(5)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011- ss 6(4), ss 6(5), 6(6), ss 7(1), ss 7(2), ss 8(1), ss 11(1), Table 3, Table 14
Social Security Administration Act 1999 (Cth) – Schedule 2 – Cl 4 (1) – s179
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179
Harris v Secretary, Department of Employment and Workplace relations [2007] FCA 404
Summers and Secretary, Department of Social Services [2014] AAT 165
Ulukut and Secretary, Department of Social Services [2014] AAT 399
SECONDARY MATERIALS
The Guide to Social Security Law
REASONS FOR DECISION
Member C Edwardes
10 May 2018
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 29 June 2017(T2 3-9) (R1). This decision affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 15 August 2016.
The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth) (the Act).
The matter was heard in Perth on 21 March 2018. The Applicant attended in person with support from Ms De Gaye and Ms Jones Bolla from Sparke Helmore Lawyers appeared for the Respondent.
The Tribunal would like to thank both the Applicant and Respondent for their assistance during the hearing.
BACKGROUND
On 15 August 2016, the Applicant lodged his claim for DSP involving the conditions of right ankle crush injury, nerve damage in both feet, arthritis in both- knees, depression, insomnia, hearing loss in both ears and injury to both wrists. (T18 118-151) (R1)
On 21 September 2016, the Applicant’s claim was rejected by the Department (T27 186) (R1). The Applicant’s claim was rejected on the basis that the Applicant did not have an “impairment of 20 points or more under the Impairment Tables.”
On the 17 November 2016, the Applicant sought a review of the Department’s decision. (T30 190) (R1)
On the 1 December 2016, an Authorised Review Officer (ARO) affirmed the Department’s decision. The ARO determined the following (T32 195-200) (R1):
[The Applicant’s] conditions of crush injury right ankle, right ankle pain and depression are not accepted as being permanent as they have not been fully treated and stabilised.
[The Applicant’s] total impairment rating is nil.
[The Applicant] did not have an impairment rating of 20 points or more.
[The Applicant] did not have a continuing inability to work 15 hours per week or more because of [the Applicant’s] impairment”.
The ARO based his decision accordingly as follows:
In regard to your condition of crush injury right ankle and right ankle pain, the evidence provided by you reports a deterioration in your conditions. The medical evidence indicates that you were to attend an initial appointment with the pain clinic on 6 October 2016. Accordingly I am unable to conclude that the condition was fully treated and stabilise [sic] at the time of claim (16 August 2016). Therefore an impairment rating cannot be assigned.
In regard to your condition of depression the medical evidence would seem to indicate a deterioration of your condition following changes in your personal circumstances. However no evidence has been provided that indicates recent psychological interventions.
Accordingly I am unable to conclude that the condition was fully treated and stabilise [sic] at the time of claim (16 August 2016). Therefore an impairment rating cannot be assigned.
I note you also identified conditions of hearing loss, knee and wrist pain. However no current medical evidence inclusive of treatment, prognosis and functional impact was provided. Accordingly I am unable to conclude that these are permanent conditions.
On 25 January 2017, the Applicant lodged an appeal with AAT1. The AAT1 affirmed the ARO’s decision on 29 June 2017 and stated
“… at the time of his claim, Mr Williams’ problem of painful legs and feet had not been fully treated and stabilised”. (T2 8) (R1)
In respect to the condition of depression AAT1 said:
“…at the time of the claim Mr William’s mental health problems were diagnosed, but were not fully treated or fully stabilised”. (T2 9) (R1)
On 25 July 2017, the Applicant applied to the General Division of the Tribunal for a second review of the decision for the following reasons (T1 1-2)(R1):
I had a copy of the 20 point test for the Disability Pension, I went thru [sic] this test and found out I did make the 20 points. There were items left out of the documents the Administrative Appeals Tribunal put in their decision paperwork that was dated on the 29^thJune 2017 by the Member M. Jones. The Centrelink Disability Employment Services don’t know how to help me due to my Disability issues, it is also braking [sic] the Western Australian O,HnS [sic] safety laws for me to work due to my Disability issues. I cannot live on the newstart [sic] payments I receive and can’t work due to my disability issues.
RELEVANT LEGISLATION AND ISSUES
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
Section 94 of the Act provides the criteria for DSP, relevantly:
(1) A person is qualified for disability support pension 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;
(ii)       …
Accordingly, for a person to be qualified for DSP, the person must have:
Firstly, a physical, intellectual or psychiatric impairment; and
Secondly, these impairments must be assigned a rating of 20 or more points under Impairment Tables; and
Thirdly, the person must have a continuing inability to work.
QUALIFICATION PERIOD
Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements Schedule 2 subclause 4(1) of the Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case that 13 week period is between 15 August 2016 to 14 November 2016 inclusive, known as the qualification period.
ASSESSING IMPAIRMENTS AND ASSIGNING AN IMPAIRMENT RATING
The Impairment tables referred to subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables are located in the Determination).
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AAT 399 Senior Member Isenberg explained the operation of the Impairment Tables as follows:
[5] ... The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to 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: s 6(1) of the Determination.
[6] The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsection 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using impairment tables and assign impairment ratings. In particular, subsection 11(1) states that 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.
CONTINUING INABILITY TO WORK
As set above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to subsection 94(2) of the Act:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
[emphasis added]
‘Severe impairment’ is defined in subsection 94(3B) of the Act:
A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of subsection 94(3C).
Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
The Tribunal is assisted by the Policy document the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines the Tribunal will usually do so unless there are cogent reasons in not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179).
ISSUES FOR DETERMINATION
The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP the purposes of section 94(1) of the Act.
This requires consideration of the following:
(a) the Applicant had any physical, intellectual or psychiatric impairment; and
(b) if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c) if so, whether the Applicant had a ‘continuing inability to work.’
EVIDENCE
The Tribunal received the following evidence:
·Exhibit A1 – Applicant’s submissions of the 16 January 2018;
·Exhibit A1.1 – Applicant’s response to the Respondent’s Statement of Facts, Issues and Contentions (SOFIC), received15 March 2018;
·Exhibit A1.2 – Letter from Dr Geoff Kirkman, dated 9 March 2018;
·Exhibit A1.3 – Request for medical information from David Ramm to Dr Chris Burgin, dated 5 February 2018;
·Exhibit A2 – Letter from Dr Chui Ching, dated 13 November 2017;
·Exhibit A3 – Patient Health Summary – from Stirk Medical Group, dated 22 September 2016;
·Exhibit A4 – Letter from Dr Geoff Kirkman, dated 6 October 2017;
·Exhibit A5 – Letter from Dr Catherine Nixon, dated 1 August 2014;
·Exhibit R1 – T document, T1-T137, pp 1-232 and includes the Supplementary T-documents, ST1-ST8, pp 233-520, received on 28 February 2018; and
·Exhibit R2 – Respondent’s SOFIC, dated 14 February 2017 (Includes lists of authorities and annexure A).
The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address it, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be referred to below.
The Respondent contends the following in respect to the conditions of the Applicant (R2):
“Lower limb impairment
32.The evidence indicates, and the Secretary accepts, that the Applicant suffered from a right foot injury and chronic regional pain syndrome at the qualification period. The Secretary contends that this condition was fully diagnosed but was not fully treated and fully stabilised as at the qualification period.
33.The medical evidence indicates that the Applicant suffered a soft tissue injury to his right foot at work in December 2013 [reference omitted]. A MRI scan of the right foot did not reveal any fractures or other significant pathology (T5/82). A workers' compensation progress medical certificate signed by Dr Nixon, dated 28 January 2014 [reference omitted] , indicates that it was recommended the Applicant wear a moon boot and avoid uneven ground and steps and stairs. Dr Nixon stated that the Applicant had "an acute arthrosis which will settle with time and non- surgical intervention".
34.The Applicant appears to have subsequently developed pain in his left foot and right knee due to altered gait/posture [reference omitted].
35.A report by Dr Soo Tee Lim dated 15 July 2014 [reference omitted] indicated that on 3 July 2014 a further MRI and an Isotope bone scan were carried out, which "demonstrated a severe contusion and soft tissue injury". Dr Soo Tee Lim stated that a surgical procedure was not required, and recommended that the Applicant use orthotic inserts on a long term basis, avoid prolonged standing, avoid using his right foot to operate machinery and undertake vocational rehabilitation to prepare him for work suitable to those requirements.
36.In a letter dated 10 December 2014 [reference omitted], Dr Nixon indicated that the Applicant had reported two incidents that exacerbated his foot injury, including that the Applicant twisted his foot in May and on 11 September 2014 he "took the weight of his motorbike on the right foot”. According to the letter the Applicant reported increasing pain in his knees and left foot because of his altered gait despite using crutches. Dr Nixon stated: "However, I do not have a diagnosis at this point which would explain this degree of pain particularly in view of the amount of medication that he takes".
37.In a medical certificate dated 4 January 2016 [reference omitted] , Dr Geoff Kirkman, general practitioner, indicated that the Applicant's primary condition was "chronic pain right ankle", noting the Applicant had chronic neuropraxic pain in his right ankle since the crush injury. Dr Kirkman indicated that the Applicant's chronic right ankle pain was likely to persist, and the symptoms were expected to affect the Applicant's capacity for work or study, for more than 24 months.
38.Dr Kirkman subsequently referred the Applicant to Dave Clement (podiatrist) who reviewed the Applicant with respect to his chronic pain. Mr Clement provided support strapping and dry needling, but did not proceed with a recommended regional local anaesthetic block as the Applicant was unable to arrange transport. Mr Clement recommended that the Applicant be referred to a pain management team [reference omitted].
39.In a medical certificate dated 7 April 2016 [reference omitted], Dr Kirkman again described the Applicant's main medical condition as "chronic regional pain syndrome. Dr Kirkman stated that past treatment undertaken by the Applicant included NSAIDS (nonsteroidal anti-inflammatory drugs), cortisone injections, Lyrica and opioids, current treatment included Cymbalta, Lyrica, Seroquel (quetiapine) and tramadol, and planned treatment included acupuncture and possible nerve blocks.
40.A referral letter to Fiona Stanley Hospital Pain Medicine Unit dated 20 July 2016 indicates that the Applicant was referred to a STEPS (self training educative pain sessions) program [reference omitted].
41.In a Patient Health Summary dated 22 September 2016 [reference omitted], Dr Kirkman noted that the Applicant reported he had difficulty with any major physical effort or prolonged walking such as catching the bus then train to Perth for Family Court hearings, which would result in leg pains, marked migraine headaches with nausea, vertigo, photophobia, hyperacusis and retirement to bed for 24 hours. Dr Kirkman noted that the Applicant had requested a wheelchair because his arms and wrists were painful from use of elbow crutches, and that he had an upcoming appointment with the pain clinic at Fiona Stanley Hospital. Dr Kirkman stated: "Clearly he has a large psychosomatic component".
42.A letter from Fiona Stanley Hospital confirmed the details of an appointment made for the Applicant to attend the Pain Management Clinic on 6 October 2016 [reference omitted].
43.At the AAT1 hearing on 29 June 2017, the Applicant indicated that he had not been seen by the Fiona Stanley pain clinic as he was unable to keep the scheduled, appointment and when he attended on a subsequent occasion they had no record of him in their system. He said his only treatment was with pain killers [reference omitted].
44.While the evidence indicates that the Applicant's foot injury was initially appropriately treated with analgesics, physiotherapy, hydrotherapy, cortisone injections and orthotics, the Secretary contends that the medical evidence indicates that the Applicant's ongoing functional limitations at the time of claim were due to a chronic regional pain syndrome, rather than any underlying pathology of the foot. The Secretary contends that the chronic regional pain condition was not fully treated and stabilised at the qualification period, noting in particular the Applicant's failure to follow through with recommended treatment via a pain management clinic.
45.It has been recognised that "of all approaches to the treatment of chronic pain, none has stronger evidence basis for efficacy, cost-effectiveness, and Jack of iatrogenic complications than interdisciplinary care....typical treatment provided includes three common elements: (1) medication management, (2) graded physical exercise, and (3) cognitive and behavioural techniques for pain and stress management." In Australia, the National Pain Strategy (2010) emphasizes the need for "coordinated multidisciplinary assessment and management involving, at a minimum, physical, psychological and environmental risk factors in each patient” and recognises that interdisciplinary care has the strongest evidence-basis for positive outcomes.
46.Pain management clinics utilise multi-disciplinary teams to treat chronic pain, and typically provide psychological counselling, physical therapy (eg from a physiotherapist or occupational therapist}, and vocational counselling as well as pharmacological treatment and consideration of further interventions. Doctors specialising in pain medicine, anaesthesia, neurology, rheumatology, psychiatry and/or rehabilitation medicine will also be involved in the delivery of appropriate treatment, including establishing an appropriate pharmacological treatment regime
47.The Western Australia Therapeutic Advisory Group (WATAG) Neuropathic Pain Guidelines 2017 provide guidelines for the pharmacological treatment of neuropathic pain [reference omitted]. They provide:
(a)Neuropathic pain is often refractory or inadequately managed by common analgesics; in particular paracetamol and NSAIDs (non-steroidal anti inflammatory drugs) are usually ineffective;
(b)Patients with neuropathic pain [should] be referred to a pain specialist when second-line treatments have failed;
(c)First-line treatment for central sensitisation pain syndromes (including chronic regional pain syndrome) are tricyclic antidepressants (TCAs, such as amitriptyline) or serotonin/noradrenaline reuptake inhibitors (SNRls, such as duloxetine, brand name "Cymbalta");
(d)Second-line treatment includes pregabalin (brand name "Lyrica") or gabapentin;
(e)       Third-line treatment includes tramadol or tapentadol;
(f)Fourth-line treatments are opioids (such as oxycodone) however the guidelines note this is not a preferred treatment due to "limited long-term data on efficacy and safety.
48.While the Secretary accepts that the Applicant has trialled both Cymbalta (duloxetine- a first-line treatment) and Lyrica (pregabalin - a second-line treatment), the WATAG guidelines indicate that best practice treatment is to refer a patient to a pain specialist when second-line treatments are ineffective. Two practitioners have recommended the Applicant undertake pain management, but such treatment had not been commenced prior to or during the qualification period.
49.A report dated 13 November 2017 (outside of the qualification period) from pain medicine specialist Dr Chui Chong indicates that the Applicant attended an appointment at the Fiona Stanley Hospital pain clinic that day and was seen by Dr Chong [reference omitted]. Dr Chong relevantly:
•Noted that after the Applicant's crush injury he underwent initial physiotherapy and hydrotherapy but had not been able to afford such sessions since then;
•Considered that the Applicant suffered from "persistent pain post work crush injuries in his left foot and knee", with "features suggestive of neuropathic pain", a significant overlay of psychosocial stressors, ongoing anxiety and depressive symptoms, and "significant anger in his approach which can be a major impediment to his improvement if not addressed';
•Recommended changes to the Applicant's management, including increasing the dosage of Lyrica (pregabalin) to the maximum tolerated dose and continuing tramadol (an analgesic), which could be converted to slow release 100mg to 150mg daily, as well as a referral to a physiotherapist to work on "desensitisation in his feet" and management of his 'low back pain.
50.The Secretary maintains that treatment via a pain management clinic is a low risk and "reasonable treatment" for the Applicant's chronic pain. There is no evidence that suggests that treatment via a multi-disciplinary pain management clinic would be unlikely to result in significant functional improvement (per Fanning, correctly considering the test in paragraph 6(6) of the Rules for applying the Impairment Tables). The fact that such intervention was recommended by the Applicant's treating practitioners strongly suggests that it was considered such intervention would be likely to assist the Applicant.
51.In Newman and Secretary, Department of Family and Community Services [2002] AATA 917, Member Carstairs found (at [31] - [32]):
31. The applicant has been to a number of medical practitioners and appears to have had a relatively limited time under the care of each. More than one of them has recommended a course of pain management. The applicant agreed that Dr Earp and Dr Simpkin had made that recommendation, as, currently, has Dr Das. Applying the interpretation of the term in Tlonan, treatment is not to be read narrowly, and should encompass a broad range of therapeutic measures, reasonable to adopt in a particular case. Pain management has been recommended to the applicant by three medical practitioners, and is a common form of treatment for intractable back pain. The Tribunal does not accept the submission of the applicant that it does not fall within the concept of treatment under the Act. As the words in the Act set out, reasonable treatment is taken to be treatment that is feasible and accessible and where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
32. The Tribunal accepts the submission made by Mr Pardon that the SSATwas correct in deciding that the condition was not one where the condition was treated and stabilised. The Tribunal is not satisfied, where treating doctors have recommended a course of pain management program and this has not occurred, that the requirements of the Act can be met.
52.In Smalldon and Secretary, Department of Social Services [2015] AATA 2 (5 January 2015), Dr Denovan (a medical practitioner), held (at [16]) that:
As all Ms Smalldon's impairments relate to pain, or the effects of that pain, I consider it inappropriate to regard any of her conditions as permanent until she has at least completed a course of pain management at a recognised pain clinic. It is usual for pain management clinics to address the very problems Ms Smalldon complains of, and to help chronic pain suffers [sic] cope with the pain and the effects of chronic pain. Dr Vecchio is not a pain specialist, nor is he an occupational physician. It is not unusual for persons who have applied for DSP to be referred to pain clinics, and as a rule, it is usual for a finding that the conditions associated with that pain are not fully treated until after the pain management options have been fully explored. I do not find anything in Dr Vecchio's brief letter to persuade me that Ms Smalldon's circumstances present a reason to depart from this established position. Until Ms Smalldon has completed a pain management course, and a specialist form pain management verifies that her treatment has been optimised, the conditions causing her impairment cannot be said to be fully treated.
53.Accordingly the Secretary contends that the Applicant's chronic regional pain condition affecting his lower limbs cannot be regarded as fully treated and stabilised until such time as he completes the recommended pain management program. Any functional impairment arising cannot be assigned a rating under the Impairment Tables.
Mental health condition
54.The Secretary contends that the Applicant's mental health condition was not fully diagnosed, treated and stabilised as at the qualification period.
55.The Introduction to Table 5 requires that a mental health condition be diagnosed by a psychiatrist or by an appropriately qualified medical practitioner with evidence from a clinical psychologist. The Secretary contends that there is no evidence before the Tribunal from either a psychiatrist or clinical psychologist that indicates a current diagnosis of a mental health condition as at the qualification period. In the absence of such evidence, a mental health condition will not be fully diagnosed, and no rating can be assigned under Table 5.
56.In a document entitled 'Summary of mental health history' dated 10 December 2014, Dr Nixon reported that the Applicant's symptoms of depression started about 2-3 months after he had the ankle injury (on 18 December 2013), and that the Applicant had been improving in terms of function and pain level until he re-injured his foot (in May 2014 and September 2014) and experienced increased pain, after which his mood darkened and he became increasingly withdrawn (T8/95).
57.Dr Nixon reported that the Applicant's depression had been diagnosed on 20 June 2014 and that he had been seen by psychiatrist Dr Gemma Edwards-Smith on 23 September 2014 [reference omitted]. No report from Dr Edwards-Smith has been provided, however Dr Nixon quoted Dr Edwards-Smith as reporting that "[the Applicant] is presently [sic] with moderate symptoms of depression in the context of his physical injury, ongoing symptoms of pain".
58.The term "Depression" is sometimes used by doctors or other health professionals to refer to mood disorders like 'major depressive disorder'. However, the term can also be used to describe a symptom, or set of symptoms, that may result from any one of a number of distinct disorders like major depressive disorder, adjustment disorder with depressed mood, or even PTSD. This is why some health professionals use the term 'clinical depression' instead of 'depression' and why psychiatrists and clinical psychologists often prefer to use diagnostic terminology from the DSM-IV-TR, DSM-5 or the World Health Organisation's 'International Classification of Diseases' (ICD-10) [footnote omitted].
59.The Secretary submits that, when assessing mental health function, it is essential to maintain a clear distinction between:
•          a psychiatric symptom - like 'depression', 'anxiety' or 'stress';
•a psychiatric condition (or disorder) - like major depressive disorder, persistent depressive disorder ('dysthymia'), adjustment disorder with depressed mood or PTSD; and
•a psychiatric impairment - like difficulty with interpersonal relationships, difficulty with concentration and task completion, or difficulty with work/training capacity.
60.      This is because (among other things):
•the Impairment Tables are for assessing the degree of psychiatric impairment, not to assess psychiatric conditions [footnote omitted];
•an impairment rating can only be assigned to a psychiatric impairment if the psychiatric condition causing that impairment is 'permanent';
•a psychiatric condition is only 'permanent' if it has been fully diagnosed by an appropriately qualified medical practitioner such as a psychiatrist or, failing that, a general practitioner with input from a clinical psychologist[footnote omitted];
•while psychiatric conditions are diagnosed by reference to psychiatric symptoms, an appropriately qualified medical practitioner would usually differentiate between a diagnosed condition and the symptoms on which their diagnosis is based; and
•it is not possible to assess whether a psychiatric condition has been fully treated and stabilised without a proper diagnosis, which is essential for the development of a fully informed treatment plan.
61.The comment that the Applicant was in 2014 reported by Dr Edwards-Smith to be suffering from "symptoms of depression", in the Secretary's contention, falls short of a diagnosis of a mental health condition (such as major depressive disorder) by reference to the diagnostic criteria of the DSM-IV-TR (as was current as at 2014).
62.The Secretary notes that there is no medical evidence contemporaneous with the qualification period that confirms that the Applicant was at that time diagnosed as suffering from a mental health condition by a psychiatrist or clinical psychologist. In a letter dated 6 October 2017 [reference omitted] Dr Kirkman reported that following a workplace back injury in 1999, the Applicant developed a paranoid psychosis, was admitted to the psychiatric ward at QE2 medical centre where he was an inpatient for approximately 6 weeks, recovered well and had not suffered any relapse. Dr Kirkman reported that following the right foot crush injury, the Applicant received mental health counselling but found it of no benefit, and since then had remained unemployed and gone through a divorce. Dr Kirkman then stated:
Throughout this Cain's mental health has remained stable and he has come through most of it now. His chronic pain and anxiety have been largely dealt with by myself. I have had no particular concerns regarding Cain's mental health which has responded well to antidepressant medication.
63.Further, a letter dated 5 December 2017 from psychiatrist Dr Sarvesh Singh [reference omitted] indicates that the Applicant attended an appointment with mental health nurse Rachel Rigby on 29 November 2017 and was seen by Dr Singh on 5 December 2017 "for a review of medication especially for his sleep and stress". The letter indicates that the Applicant was no longer taking mirtazapine or Cymbalta (duloxetine). Dr Singh relevantly stated:
In my clinical opinion, Cain has been suffering from adjustment disorder and insomnia in the context of social, financial and physical problems. There is no evidence of major Depressive Disorder, Mania or Psychotic Disorder. He has Narcissistic Personality Disorder.
…
I have advised Cain to take chlorpromazine 100mg one to two tablets nocte for sleep... He has been supplied a script for 100 tablets with a seven day supply from the pharmacist at a time. Cain will be followed up by the Acute Treatment Team in Rockingham Community Mental Health Service for a short term...
64.Dr Singh therefore specifically rules out the existence of major depressive disorder, and notes that the Applicant was at that time suffering from adjustment disorder. There is no evidence that the Applicant had been diagnosed by a psychiatrist or clinical psychologist with an adjustment disorder at the qualification period.
65.In the Secretary's contention, therefore, this Tribunal cannot be satisfied that the Applicant was at the time of claim suffering from a mental health condition that had been diagnosed or confirmed by a psychiatrist or clinical psychologist.
66.Further, the Secretary contends that even if the report of Dr Edward-Smith's comments in 2014 could be accepted as a diagnosis of a mental health condition, which continued to be current as at the date of claim almost 2 years later, the Secretary contends that the condition of "depression" was not fully treated and fully stabilised at that time.
67.Dr Nixon indicated that the Applicant's treatment included Cymbalta (duloxetine) from June 2014, and "only a few sessions" of counselling, noting that the applicant "sometimes did not actively seek counselling even when strongly recommended'. Mirtazapine 60mg per day was introduced since 24 September 2014, as recommended by Dr Edwards-Smith.
68.The Applicant's pharmaceutical benefits scheme (PBS) claim history for the period 1 January 2013 to 21 December 2017 [reference omitted] relevantly indicates that the Applicant last filled a script for mirtazapine on 26 June 2015, and last filled a script for Cymbalta on 21 October 2016.
69.The Applicant reported to the AAT1 that he had only seen Dr Edwards-Smith once. He said he was due to see her again but it would have been too expensive [reference omitted].
70.It was not until 1 September 2017 that the Applicant took up a referral to ORS Psychology, with Dr Andrew Rushton noting that the Applicant was to then undertake psychological counselling [reference omitted].
71.      Relevantly, therefore, at the date of claim the Applicant:
•Had ceased taking the medication prescribed by a psychiatrist approximately 12 months before he claimed DSP;
•          Had not undertaken recommended psychological counselling; and
•          Had not had any follow up consultations with a psychiatrist.
72.Clinical Practice Guidelines for the treatment of mood disorders and anxiety disorders endorsed by the Royal Australian and New Zealand College of Psychiatrists contain the following recommendations:
•PSYCHOLOGICAL THERAPY FOR MOD [major depressive disorder] [footnote omitted]
oPatients with mild-moderate depression should be offered one of the evidence based psychotherapies as first line treatment.
oPatients with moderate-severe depression should be offered combined pharmacotherapy and psychotherapy as first line treatment.
oPatients with chronic depressive disorders should be offered combined psychotherapy and pharmacotherapy as first line treatment.
73.The Secretary contends that psychological treatment, as recommended by Dr Nixon, combined with the Applicant's pharmacological treatment, is reasonable treatment as defined in paragraph 6(7) of the Impairment Tables. That is, it is readily available to the Applicant at a reasonable cost, has a high success rate and can reliably be expected to result in a substantial improvement in functional capacity if undertaken. Further, there is no medical evidence that suggests that, if such treatment were undertaken by Applicant, that significant functional improvement would be unlikely to result within 2 years.
74.As the Applicant had not undertaken this recommended treatment, the Secretary contends that his depression condition cannot be accepted to be fully treated and stabilised as at the qualification period.
Other conditions
75.The Secretary contends that the Applicant's additional conditions of arthritis in both knees, insomnia injury to both wrists, and bilateral hearing loss requiring use of bilateral hearing aids, were not fully diagnosed, treated and stabilised during the qualification period and do not attract impairment ratings under the Impairment Tables.
76.The Secretary notes the following evidence, but submits that it cannot be considered as it falls outside the qualification period:
•A medical certificate dated 1 August 2017 issued by Dr Andrew Rushton, general practitioner, noted a diagnosis of insomnia and indicated that this was a temporary exacerbation of a permanent condition [reference omitted] . The diagnosis of insomnia is confirmed in Dr Singh's report dated 5 December 2017 [reference omitted].
•A radiologist report dated 26 December 2017 [reference omitted] indicates the Applicant underwent an x-ray of his right hand, which found soft tissue swelling over the dorsal aspect of the distal metacarpal row.
77.In relation to the Applicant's conditions of arthritis in both knees, insomnia, injury to both wrists, and bilateral hearing loss, the Secretary contends that there is insufficient evidence to determine whether these conditions were fully diagnosed, treated and stabilised.
78.Additionally, there is insufficient evidence of the degree of functional impairment caused by the Applicant's hearing loss condition, noting that the Applicant appears to wear bilateral hearing aids and there is no medical evidence that suggests he has difficulties with his hearing while using those aids.

The Applicant’s oral evidence reflected his submission in Exhibit A1. The Applicant’s evidence includes the following:
·His condition in respect to the pain he is experiencing in his legs and feet arose out of a work accident in 2013.
·The injury he sustained is described at (A4) in a letter dated, 6 October 2017, from Dr Kirkman – “A forklift collided with the Pallette rideon he was standing next to, and his feet, ankles and knees suffered a crushing injury with nerve damage… He received mental health counselling through W comp during this time but found it of no benefit.”
·Since the Applicant’s work accident in 2013, the Applicant has sought treatment from a number of specialists who have prescribed the Applicant with pain and anti-depressant medication including Tramal capsules, Tramal slow release, Lyrica capsules and Panadol Osteo tablets. His depression medication includes; Cymbalta capsules, Mobic tablets, Seroquel tablets and Murelax tablets (T17 113) (R1).
·The Applicant’s physical condition manifested into a whole range of other conditions including mental health. The Applicant states his physical condition ultimately led to a marriage breakdown and separation from his children.
·The Applicant stated that he would like to work however due to his condition; no employer would give him a job.
The Tribunal accepts the Applicant’s testimony during the AAT1 hearing on 29 June 2017 where that the Applicant stated that his ankles were in such a condition that he decided to purchase a wheel chair for mobility. According to the Applicant’s testimony in the AAT1 hearing, the Tribunal finds that the Applicant purchased his wheelchair around June 2017. (T2 7)(R1)
The Tribunal notes that prior to June 2017, the Applicant used a whole range of aids including a gopher in order to assist with his mobility.
The Tribunal notes that the Applicant claims that his condition has not deteriorated since 2016. It is the Tribunal’s finding that this may not be the case.
The Tribunal notes that the Applicant was referred to a variety of allied health professionals in 2016 and 2017. The Tribunal also notes that the Applicant was referred to, and treated by various pain management professionals. The Applicant states that these referrals were a waste of time and were not effective.
The Tribunal notes that the Applicant was referred to an Employment Services Assessment Report dated 14 April 2016. This report states “Mr Williams reported he is able to walk 2-2.5 hours in total, unable to climb stairs, rides motor bike as no other means of transport … that [Mr Williams] wears orthotics and utilises an elbow crutch if [he] walks more than10-15 minutes.” (T14 106) (R1)
The Tribunal notes that the Applicant stopped using his motor bike in late 2016.
The Tribunal notes the Applicant’s contention that the Applicant’s Job Capacity Assessment report dated 16 September 2016 was incorrect as a lot of material he provided had not been included in the report. (T26 181)(R1)
The Tribunal notes that the Applicant agreed that during the qualification period he went shopping by himself, cleaned his home and travelled for medical attention.
CONSIDERATION
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
On the basis of the evidence before the Tribunal at the date of the claim the Applicant suffered significant pain resulting from an injury to feet, ankles and knees. According to Dr Kirkman, the Applicant suffered a crushing injury with nerve damage. That injury has resulted in a range of medical conditions, including depression.
The Tribunal notes that the Applicant has been treated with a significant amount of pain killers and anti-depressant medication. In the T-documents provided to the Tribunal, the Applicant has stated, at “daily stress and anxiety… makes my thinking not very good (sic) or stable... daily chronic pain makes life very messy for me… when I get bad days it puts me in bed up to 1-3 days before I can function normally again.” (T19 153) (R1)
The Tribunal notes that the Applicant uses various aids for mobility including; orthotic inserts, moon boot, crutches, gopher and a wheel chair.
After taking into account all evidence before the Tribunal, the Tribunal finds that the Applicant’s mobility is not the Applicant’s main problem. The Tribunal finds that the Applicant’s main problem derives from the Applicant’s injury that has led to his depression, significant mood swings and high levels of frustration.
The Tribunal accepts having regard to all the medical evidence before it that the Applicant satisfies paragraph 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination
Mental health
The Tribunal accepts that the Applicant’s physical injury has triggered his diagnosis of depression. The Tribunal additionally notes the anti-depressant medication that the Applicant has been prescribed by his medical practitioners.
The Tribunal notes the Applicant’s statement that his condition is now under control due to the treatment he receives from Dr Kirkman. The Tribunal also notes the Respondent’s contention that the Applicant's mental health condition cannot be regarded as fully diagnosed, fully treated and fully stabilised, and therefore no impairment points can be awarded for any impairment arising from this condition.
The Tribunal notes that the Applicant received treatment from Dr Gemma Edwards-Smith, a psychiatrist. The Tribunal also notes that the Applicant received treatment from Dr Catherine Nixon. (T8 95) (R1) the Tribunal has evidence before it from another psychiatrist, Dr Singh, who stated in a report dated 5 December 2017: “…in my clinical opinion Cain has been suffering from adjustment disorder and insomnia in the context of social, financial and physical problems.” (ST8 391)(R1)
The Tribunal finds that the Applicant was not provided with a substantive diagnosis of his mental health condition during the qualification period (15 August 2016 to 16 November 2016). The Tribunal therefore places greater weight on the opinion before it by Dr Singh in paragraph 46 of this decision.The Tribunal supports the conclusion of the Respondent that at the time of the qualification period (15 August 2016 to 16 November 2016), the Applicant had ceased taking medication as prescribed by his psychiatrist approximately 12 months before his claim, had not undertaken psychological counselling and failed to follow up consultations with a psychiatrist (R2 71).
The Tribunal notes that subsection 6(4) of the Impairment Tables Determination requires a condition to be fully diagnosed, treated and stabilised before an impairment rating can be assigned.
The Tribunal finds the Applicant’s mental health condition not fully diagnosed treated and stabilised during the qualification period (15 August 2016 to 16 November 2016). The Tribunal therefore does not award any impairment points are in relation to the Applicant’s mental condition.
Lower Limb impairment
The medical evidence before the Tribunal shows that Applicant suffered a lower limb injury as a result of an incident that occurred at work in 2013. This injury resulted in his feet being crushed between a forklift and a pallet, and left the Applicant in significant pain.
A number of health specialists determined that the Applicant suffered from significant nerve damage. The Applicant was treated with hydrotherapy and physiotherapy and was prescribed with a range of pain killers. The Tribunal notes that Applicant stated hydrotherapy and physiotherapy did not assist with his pain management (ST8 460) (R1).
The Tribunal notes that the Applicant was recommended to wear a moon boot and to try to only walk on flat surfaces. (ST8 423) (R1)
The Tribunal notes that the Applicant was treated by Dr Soo Tee Lim, an orthopaedic surgeon on the 15 July 2014 who
“All the above demonstrated (sic) a severe contusion and soft tissue injury .There is not a surgical procedure required (T24 170) (R1).
The Tribunal considers that during the qualification period (15 August 2016 to16 November 2016), the Respondent accepts that the Applicant suffered from a right foot injury and chronic regional pain syndrome. The Respondent accepts that this condition is fully diagnosed, however, not fully treated and stabilized.
There is evidence to show that the Applicant had been referred by two practitioners for pain management, yet this was not undertaken during the qualification period (15 August 2016 to 16 November 2016). The Tribunal observed during the hearing that the Applicant’s perspective was that this type of treatment of pain management as a waste of time and had nothing to do with his pain.
In the supplementary T documents, the Tribunal notes the Applicant as stating:
I finally got to see the pain clinic on the 13^th November 2017, so it only took me close to 1.5 to 2 years before seeing them -“What the Dr at the pain clinic has suggested is nothing I haven’t tried on workers comp so again they can’t help also. (ST8 401)(R1)
The Tribunal believes that the Applicant is experiencing significant pain. Whilst the Tribunal can understand the Applicant’s state of mind, in particular his frustration, the Tribunal considers that this treatment is considered necessary by his health practitioners in order to assist him with his quality of life, and ultimately his re-entry into the workforce on a part-time basis.
Having considered all the evidence, the Tribunal has no evidence before it which indicates the Applicant engaged with a pain specialist during the qualification period (15 August 2015 to 16 November 2016). The Tribunal therefore finds that the Applicant’s condition has not been fully treated and stabilised.
Other conditions
The Applicant’s other conditions included arthritis in both-knees, insomnia, injury to both wrists and bilateral hearing loss. The Tribunal finds that no evidence was produced for the term of the qualification period (15 August 2016 to 16 November 2016) in order for an assessment to be made.
There was no evidence to indicate any of the Applicant’s other conditions were fully diagnosed, treated or stabilised. For this reason, the Tribunal awards zero points to the Applicant for his ‘other conditions.’
Whether the Applicant has a continuing inability to work (CITW)
The Tribunal finds that the Applicant has zero Impairment points and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider subsection 94(1)(c) of the Act.
For the sake of completeness however, should the Tribunal find that the Applicant satisfies paragraph 94(1)(b) of the Act, the Applicant would nevertheless fail to satisfy paragraph 94(1)(c) of the Act. Pursuant to subsection 94(3B) of the Act, the Applicant did not have a severe impairment, and, pursuant to subsection 94(3C) of the Act, the Applicant did not actively participant in a program of support (POS).
The Applicant lodged his application for DSP on the 15 August 2016. To have actively participated in a POS, this must have occurred for 18 months in the 36 months prior to the date of the claim. There is no evidence before the Tribunal to indicate this occurred.
The Respondent’s SOFIC confirms that the Applicant had participated in a POS for 198 days prior to the filing of his claim however, this does not meet requirements under paragraph 7(2) of the Determination.
DECISION
For the reasons above, for the relevant qualification period from 15 August 2016 to 16 November 2016, the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.

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

.....[sgd]...................................................................
Associate
Dated: 10 May 2018

Date of hearing: 21 March 2018

Applicant: In person

Representative for the
Respondent: Ms D Jones-Bolla

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2018] AATA 1357

10 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	21 March 2018
Applicant:	In person
Representative for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers