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

[2019] AATA 577

Bebendorf and Secretary, Department of Social Services (Social services second review) [2019] AATA 577 (29 March 2019)

Division:GENERAL DIVISION

File Number:2018/3609           

Re:Vicki Bebendorf  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:29 March 2019

Place:Brisbane

The Tribunal affirms the decision under review.

............................[SGD]..................................

Member D Mitchell

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs  [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447;  (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123

REASONS FOR DECISION

Member D Mitchell

29 March 2019

INTRODUCTION

1. On 27 February 2017, Ms Vicki Bebendorf (the Applicant) lodged a claim for the disability support pension (DSP).[1]

   [1] Exhibit 1, T Documents, T 43, page 238, Centrelink customer contact notes.

2. The claim was rejected on 14 June 2017,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 5 March 2018.[3]

   [2] Exhibit 1, T Documents, T 19, pages 130-131, Centrelink Notice: Rejection of DSP claim.

   [3] Exhibit 1, T Documents, T 35, pages 162-168, Authorised Review Officer Decision and Notes.

3. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on

   
   

   4 June 2018.[4]

   [4] Exhibit 1, T Documents, T 2, pages 3-14, Decision of the SSCSD.

4. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 28 June 2018.[5]

   [5] Exhibit 1, T Documents, T 1, pages 1-2, Application for Review.

5. On 6 March 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.

6. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.

   BACKGROUND

7. On the Applicant’s claim for DSP form[6] she lists the following disabilities, illnesses or injuries:[7]

   -Acute depression

   -Anxiety

   -High blood pressure, etc

   [6] Exhibit 1, T Documents, T 7, pages 71-102, DSP claim form.

   [7] Exhibit 1, T Documents, T 7, page 96, DSP claim form.

8. On 2 March 2017, the Applicant attended an Employment Services Assessment (ESA) by phone with a rehabilitation counsellor.[8]  The Assessor found that the Applicant’s conditions were likely to improve and recommended that the Applicant would benefit from a temporarily reduced work capacity of 0-7 hours per week for six months whilst she engages in treatment for the medical conditions listed in the report. After that time the Assessor recommended a referral to DES-ESS and opined that with disability specific intervention the Applicant’s work capacity would remain stable at 15-22 hours per week within two years.[9]

   [8] Exhibit 1, T Documents, T 10 page 106, Employment Services Assessment Report.

   [9] Exhibit 1, T Documents, T 10, pages 106-110, Employment Services Assessment Report.

9. On 12 April 2017, the Applicant attended a Job Capacity Assessment (JCA) by phone with a Registered Psychologist.[10]  The Assessor agreed with the ESA Report in relation to the Applicant’s work capacity[11] and in relation to the Applicants depression condition found:

   The condition cannot currently be considered fully diagnosed, treated and stabilised as there is no verifying diagnosis from a Psychiatrist or Clinical Psychologist. Client is still grieving the loss of her husband and her treatment has been relatively recent. With continued treatment, an improvement in her condition is likely within 24 months.[12]

   [10] Exhibit 1, T Documents, T 15, page 120, Job Capacity Assessment Report.

   [11] Exhibit 1, T Documents, T 15, page 123, Job Capacity Assessment Report.

   [12] Exhibit 1, T Documents, T 15, page 121, Job Capacity Assessment Report.

10. On 14 June 2017, a decision was made to reject the Applicant’s DSP application on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[13]

    [13] Exhibit 1, T Documents, T 19, page 130, Centrelink Notice: Rejection of DSP claim.

11. The Applicant sought review of the decision and provided further medical evidence.  A review of the Applicant’s medical eligibility was undertaken by a registered psychologist on 23 January 2018.[14] The Assessor recommended that the Applicant was medically ineligible for DSP and provided:

    Summary: The client's psychological diagnoses have been confirmed by a psychiatrist. The client has been managed under a psychiatrist with medication and GP recording past psychology. The last correspondence from the psychiatrist does outline evidence of some improvement under such care. Additionally, the same psychiatrist recorded that recovery is somewhat dependent on alcohol use. There is no evidence regarding completion of alcohol rehabilitation program. Continued specialist management with specific evidence based psychotherapy to address both depression and alcohol use may contribute to improvement and/or condition stabilisation.

    These conditions therefore do not meet fully treated and stabilised criteria at this time based on current medical evidence.[15]

    [14] Exhibit 1, T Documents, T33, page 159, Disability Support Pension Medical Assessment Recommendation.

    [15] Exhibit 1, T Documents, T 33, pages 159-160, Disability Support Pension Medical Assessment Recommendation.

12. On 5 March 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[16]

    ·Your conditions of major depressive disorder, alcohol use disorder, bilateral dry eye syndrome, impaired vision, migraine, bilateral shoulder tears, hypertension, cholesterol and asthma are not accepted as being permanent as there is insufficient medical evidence to support that these conditions had been fully treated and fully stabilised within 13 weeks of you lodging this claim.

    ·Your conditions of bilateral dry eye syndrome, impaired vision and migraine are not accepted as being permanent as there is insufficient medical evidence to support that these conditions had been fully diagnosed, fully treated and fully stabilised within 13 weeks of you lodging this claim.

    ·Your conditions have not been assigned impairment ratings.

    ·You do not have an impairment rating of 20 points or more.

    [16] Exhibit 1, T Documents, T 35, page 162-168, Authorised Review Officer Decision and Notes.

13. On 12 March 2018, the Applicant sought review of the DSP refusal decision by the SSCSD. On 4 June 2018, the SSCSD affirmed the decision under review.[17]

    [17] Exhibit 1, T Documents, T 2, pages 3-14, Decision of the SSCSD.

    THE LAW

14. The relevant law in assessing a person’s qualification for DSP is found in the
    Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

15. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:

    1.Does the applicant have a physical, intellectual or psychiatric impairment;[18]

    2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[19] and

    3.Does the Applicant have a continuing inability to work?[20]

    [18] Section 94(1)(a) of the Act.

    [19] Section 94(1)(b) of the Act.

    [20] Section 94(1)(c) of the Act.

16. The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:

    (i)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    (ii)are function based rather than diagnosis based; and

    (iii)describe functional activities, abilities, symptoms and limitations; and

    (iv)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

17. Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[21] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[22] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[23]

    [21] Section 6(1) of the Determination.

    [22] Section 6(2) of the Determination.

    [23] Section 8(1) of the Determination.

18. Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[24]

    [24] Section 6(3) of the Determination.

19. In order for a person’s condition to be considered permanent the condition must:[25]

    (a)have been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)have been fully treated; and

    (c)have been fully stabilised; and

    (d)more likely than not, in light of available evidence, to persist for more than 2 years.

    [25] Section 6(4) of the Determination.

20. To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and, whether treatment is continuing or planned in the next two years.[26]

    [26] Section 6(5) of the Determination.

21. A condition is considered to be fully stabilised if:[27]

    (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.

    [27] Section 6(6) of the Determination.

22. Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliability be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[28]

    [28] Section 6(7) of the Determination.

23. The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; then identify the correct impairment rating.[29] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[30] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[31]

    [29] Section 10 of the Determination.

    [30] Sections 10(3) and (4) of the Determination.

    [31] Sections 10(5) and (6) of the Determination.

24. An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[32]

    [32] Section 11(1) of the Determination.

25. In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support; and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

26. A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[33]

    [33] Section 94(3B) of the Act.

27. The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[34] 

    [34] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.

28. Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[35]

    [35] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, at [25]-[28].

    Relevant Period

29. The Relevant Period in this matter commences on 27 February 2017, being the date the Applicant lodged her claim for DSP, and ending 13 weeks later on 29 May 2017.  The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.

    Issues

30. Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention[36] and the Respondent considers the Applicant’s impairments include major depressive disorder,[37] shoulder and back pain, and hypertension – blood pressure.[38]

    [36] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 29.

    [37] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-7, paragraphs 30-34.

    [38] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 35.

31. The remaining issues for the Tribunal to consider are:

    1.Whether, within the relevant period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and

    2.If so, did the Applicant have a continuing inability to work?

    Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

32. At Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross examination from the Respondent.  I consider that the Applicant gave honest answers to the questions she was asked. I accept that the Applicant suffers impairments and has had a particularly difficult time since her father passed away in 2014 and her husband passed away in 2016.

33. The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables.  A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[39] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be likely to persist for more than 2 years.[40] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[41] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[42]

    [39] Section 6(3) of the Determination.

    [40] Section 6(4) of the Determination.

    [41] Section 6(2) of the Determination.

    [42] Section 8(1) of the Determination.

34. The Applicant provided a number of medical reports and other documents in support of her application, overall this information primarily referred to her mental health condition.  While there were references to other conditions including bilateral dry eye syndrome, impaired vision, migraine, bilateral shoulder tears, hypertension, cholesterol and asthma[43] (collectively ‘other conditions’) the Applicant agreed at hearing that there is very limited medical evidence before the Tribunal in relation to these conditions.  The Applicant confirmed that her major depressive disorder was the primary condition before the Tribunal in relation to her claim for DSP.

    [43] Exhibit 1, T Documents, T 35, page 164, Authorised Review Officer Decision and Notes.

35. Consequently, based on the information before the Tribunal, I am not satisfied that the Applicant’s other conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, the Applicant’s other conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.

    Major Depressive Disorder

36. Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from a mental health condition during the Relevant Period. This point is not in contention.[44]

    [44] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 30.

37. To be considered fully diagnosed, Table 5 of the Impairment Tables, which relates to mental health, requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[45]

    [45] Impairment Table 5 – Mental Health Function, Part 3 of the Determination. 

1. There is a large amount of medical evidence before the Tribunal that makes reference to the Applicant’s mental health condition.  I accept that the Applicant has engaged with her general practitioner, specialists and different treatments as the need has arisen since 2007.[46]

   [46] Exhibit 5, Applicant’s evidence received by the Tribunal on 9 November 2018: Letter from Dr Helen Stubbings, psychologist, dated 17 April 2007; Letter from Dr Marion Lees, psychologist dated 16 September 2011; Letter from Dr Marion Lees, psychologist dated 16 December 2011.

2. Dr Sukhwinder Marwaha (Dr Singh), general practitioner, referred the Applicant to the Ingham Adult Mental Health Service at the Ingham Hospital by letter dated 28 February 2017.  Dr Singh provided:

   Thank you for seeing [the Applicant], aged 54 yrs for continuing care.

   May she have your kind review regards some psychotherapy CBT sessions please as she is struggling with her depression for the last few weeks since she has lost her husband and she has not got over this at all. She is moderately anhedonic, poor appetite and sleep patterns. She has seen Kara Schiffiliti in her clinic for sessions but finding not helpful and not keen to do any more follow up and would like to see psychologist and I am not aware of anyone working privately in Town. She is not acutely unwell but this is an effort to keep her away from getting more unwell emotionally please.

   She has been on lexapro which has settled some symptoms to some extent but she definitely need some counselling session and I would appreciate your review.[47]

   [47] Exhibit 1, T Documents, T 9, page 104, Medical report authored by Dr Sukhwinder Marwaha, dated 28 February 2017.

3. In a report dated 13 March 2017, Dr Gabrielle Matta, advanced psychiatry trainee, provided a diagnosis of major depressive disorder, with a differential diagnosis of complex grief and risk of developing benzodiazepine and alcohol misuse disorders.[48] Dr Matta outlined the following treatment plan:

   Plan:

   1. Continue antidepressant escitalopram 30 mg daily. If not adequate effectiveness at 6 weeks, consider careful cross-titration to mirtazapine nocte (this would be beneficial for sleep)

   2. GP to be sole prescribed of oxazepam, recommend limited prescription and actively working with patient to reduce dose and cease

   3. I have advised [the Applicant] about the dangers of benzodiazepine tolerance and dependence as well as guidelines about safe alcohol intake

   4. Recommend ongoing engagement with CM Amanda to work on practical and CBT-informed strategies to assist management of depression: sleep hygiene, activity scheduling, ongoing psychoeducation

   5. If Vicki could access any grief groups these would be good for her to engage with[49]

   [48] Exhibit 1, T Documents, T 14, page 118, Medical report authored by Dr Gabrielle Matta, dated 13 March 2017.

   [49] Exhibit 1, T Documents, T 14, page 119, Medical report authored by Dr Gabrielle Matta, dated 13 March 2017.

4. In a report dated 7 June 2017, Dr Ebonney van der Meer, psychiatry registrar, provided a diagnosis of:

   1. Major depressive episode on a background of complex grief and trauma history

   2. Mental and behavioural disorders due to substance use, alcohol, harmful use[50]

   [50] Exhibit 1, T Documents, T 18, page 128, Medical report authored by Dr Ebonney van der Meer, dated 7 June 2017.

5. Dr van der Meer provided the following recommended treatment plan:

   Recommended Treatment Plan

   1. Commence Mirtazapine 15mg nocte, increasing to 30mg after 2 weeks depending on effect

   2. Continue the Escitalopram for the time being, once stabilised on Mirtazapine and it achieving adequate symptom control, could consider weaning and ceasing

   3. Continue CBT based therapy and case management with ICMHS focusing on grief and loss Work, anxiety reduction

   4. CM to explore options for long term psychotherapy further—either with VC links and ?facilitated by MRCP

   5. Motivational interviewing and ongoing support to reduce alcohol consumption—Impacts on mental state and function discussed

   6. (have again advised [the Applicant] about the dangers of benzodiazepine tolerance and           dependence as well as guidelines about safe alcohol intake

   7. Whilst I agree that [the Applicant] is not currently able to function occupationally and l support continuation of a medical certificate to exempt her for looking for work for at least the next 6 months, I do not support a DSP based on her current episode of mental illness alone. There is a significant contribution of substance and psychosocial factors to her presentation, she is responding to. treatment, part of which will be finding a meaningful occupation as she returns to function[51] (Emphasis added)

   [51] Exhibit 1, T Documents, T 18, page 128, Medical report authored by Dr Ebonney van der Meer, dated 7 June 2017.

6. In a report dated 21 August 2017, Dr Matta, psychiatrist,[52] diagnosed major depressive disorder with anxious features and harmful use of alcohol. Dr Matta outlined a treatment plan including: continuation of medication; substance abuse psychoeducation; ongoing case management; and provision of a letter for Centrelink and further review in relation to stabilising medication.[53] Dr Matta provided:

   Whilst [the Applicant] has a major depressive disorder, I am concerned about her comorbid substance use and preoccupation with applying for a Centrelink Disability Support Pension as I believe this is counterintuitive to her recovery.[54]

   [52] Between the initial diagnosis on 13 March 2017 and this report Dr Matta has completed her training and was now a psychiatrist.

   [53] Exhibit 1, T Documents, T 25, page 144, Medical report authored by Dr Matta, dated 21 August 2017.

   [54] Exhibit 1, T Documents, T 25, page144, Medical report authored by Dr Matta, dated 21 August 2017.

7. Ms Amanda Krause, clinical nurse consultant, in a letter dated 23 August 2017, confirmed that the Applicant was a current consumer of the Ingham Community Mental Health Services and had been participating in fortnightly appointments from 28 February 2017 to present.[55]

   [55] Exhibit 1, T Documents, T 26, page 146, Letter authored by Ms Amanda Krause, dated 23 August 2017.

8. In a letter dated 23 August 2017, Dr Matta confirmed her diagnosis of 21 August 2017 and provided:

   The prognosis of her medical condition is moderate. The treatment plan is for anti- depressant medication and CBT-style interventions as well as grief work. If [the Applicant] is able to engage in treatment and address her alcohol dependence, this will augur well for her recovery.[56]

   [56] Exhibit 1, T Documents, T 27, page 147, Medical report authored by Dr Matta, dated 23 August 2017.

9. In Centrelink medical certificates dated 6 February 2017,[57] 28 February 2017,[58]

   
   

   22 May 2017,[59] and 5 June 2017,[60] Dr Singh consistently provided a diagnosis of depression with the prognosis of ‘likely to show considerable improvement within 2 years’.  Dr Singh treated the Applicant up until August 2017 when he left the practice, in a follow up letter dated 19 October 2019 he provided:

   I treated her for above mentioned illness till August 2017 and then I relocated from that workplace due to personal reasons. During the time she was being managed and monitored by me, I am of the opinion that she was suffering from prolonged grief/Depression and alcohol over usage and her condition was not stable. It was difficult to predict the prognosis of her condition at that time with a background of fluctuating anxiety. I was of the opinion that some kind of financial stability at that time could have improved her situation.

   She was medically managed with different medications for her symptoms during those times which did created stability in her emotional health to an extent with the involvement of psychiatrist and psychologist.[61]

   [57] Exhibit 1, T Documents, T 4, page 66, Medical certificate completed by Dr Sukhwinder Marwaha, dated 6 February 2017.

   [58] Exhibit 1, T Documents, T 8, page 103, Medical certificate completed by Dr Sukhwinder Marwaha, dated 28 February 2017.

   [59] Exhibit 1, T Documents, T 16, page 126, Medical certificate completed by Dr Sukhwinder Marwaha, dated 22 May 2017.

   [60] Exhibit 1, T Documents, T 17, page 127, Medical certificate completed by Dr Sukhwinder Marwaha, dated 5 June 2017.

   [61] Exhibit 4, Medical report of Dr Sukhwinder Marwaha, dated 19 October 2018.

10. There is additional medical evidence before the Tribunal that provides the Applicant continued to be referred to different specialists and engage in various treatments well after the Relevant Period.  As this evidence relates to the ongoing treatment and impacts of the Applicant’s condition outside of the Relevant Period, it does not assist the Tribunal in considering the current claim for DSP, therefore, I will not outline that material in this decision.

11. At the Hearing the Applicant told the Tribunal:

    ·She has suffered from depression since 2007

    ·The medication makes it hard, she has been on it for 20 years and cannot always function, especially if she goes off the medication

    ·She has difficulty concentrating and could no longer read a book in bed

    ·Her sons assist her with the grocery shopping and to get up out of bed when she has bad days, make decisions and have now moved back in to help her

    ·She had attended different doctor appointments at least every two weeks for four years

    ·She never drank much, only two beers a day other than when her husband passed away for a few days.  She does not agree with the doctors saying she has a problem with alcohol as she could not afford to buy it

    ·She agreed with Dr Matta’s report that she did improve for a while and that here medication was changed and being monitored

12. The Respondent contends that the Applicant’s major depressive disorder was fully diagnosed during the Relevant Period; however, that the condition was not fully treated or fully stabilised during the Relevant Period.[62]

    [62] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-7, paragraphs 30-34.

13. At Hearing the Respondent told the Tribunal that it accepted that the Applicant’s major depressive disorder was fully diagnosed, acknowledging that Dr Matta was during the Relevant Period not a psychiatrist; however, that she confirmed her diagnosis shortly after the Relevant Period having completed her training and becoming a qualified psychiatrist.

14. The Respondent contends that the Applicant had not completed appropriate trials of pharmacological treatment or completed psychotherapy treatment during the Relevant Period and as such the Applicant’s major depressive disorder condition was not fully treated during the Relevant Period.[63]

    [63] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 31.

15. The Respondent contends that the Applicant’s depressive disorder condition was not fully stabilised during the Relevant Period, relying upon the medical certificates of Dr Singh which confirmed the Applicant was likely to show considerable improvement within 2 years; the report of Dr van der Meer, in which she does not support the Applicant’s claim for DSP as she was responding to treatment, part of which will be finding a meaningful occupation as she returns to function;[64] and on the basis that the Applicant’s alcohol use disorder had not been addressed by the Applicant.[65] 

    [64] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-7, paragraph 32.

    [65] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 33.

16. Whether the Applicant’s major depressive disorder condition was fully diagnosed during the Relevant Period is academic as the condition also needs to be fully treated and fully stabilised to be considered permanent for the purpose of applying the Impairment Tables. In this instance, while I accept the Respondent’s contention that the condition was fully diagnosed at the Relevant Period due to the changing nature of Dr Matta’s qualifications, taking a strict legal interpretation, I am not satisfied that the requirements of the Determination were met.

17. I accept that the Applicant was suffering an impairment during the Relevant Period and continues to be actively engaged with appropriate medical specialists and treatment in relation to her major depressive disorder condition. However, based on the medical evidence set out above I find that the Applicant’s major depressive disorder condition was not fully treated or fully stabilised during the Relevant Period as the Applicant’s medications were still being adjusted, she was continuing with treatments, had shown improvement and her treating doctors held the view that the condition would improve within the next two years.

18. Accordingly, as I have found that the Applicant’s major depressive disorder condition is not fully diagnosed, fully treated and fully stabilised at the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Continuing Inability to Work

19. As I have found that the Applicant does not have a total of 20 impairment points either on one table, or cumulative across multiple tables, there is no need to consider whether the applicant met the requirements of section 94(1)(c) of the Act.

    CONCLUSION

20. I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

21. I find that the Applicant’s major depressive disorder condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

22. I find that the Applicant’s other conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.

23. I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.

24. Accordingly, the decision under review is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

........................................................................

Associate

Dated: 29 March 2019

Dates of hearing:	6 March 2019
Applicant:	By Phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers