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

Conaghan and Secretary, Department of Social Services (Social services second review) [2017] AATA 64 (25 January 2017)
Division:GENERAL DIVISION
File Number: 2015/3460
Re:Rochelle Conaghan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:25 January 2017
Place:Brisbane

The Tribunal affirms the decision under review
.............................[Sgd]...........................................
Senior Member J Sosso
Catchwords
SOCIAL SECURITY – disability support pension – cancellation – where Applicant has a number of somatoform conditions – whether Applicant’s conditions attract 20 points or more – whether conditions fully diagnosed, treated and stabilised – whether conditions permanent – impairment ratings – continuing inability to work – decision under review affirmed
Legislation
Social Security Act 1991, ss 27, 94
Social Security and Other Legislation Amendment Act 2011, s 2
Social Security (Administration) Act 1999, s 63, Sch 2 Pt 2 Cl 4
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 922

Freeman v Secretary, Department of Social
Security [1988] FCA 294; 19 FCR 342

Shi v Migration Agents Registration Authority
(2008) 235 CLR 286

Gallacher v Secretary, Department of Social Security
[2015] FCA 1123

Said and Secretary, Department of Family and Community Services
[2002] AATA 951 Croker and Secretary, Department of Employment and Workplace Relations [2007] AATA 1224

Berthlmawos and Secretary, Department of Social Security
[2016] AATA 116
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J Sosso
25 January 2017
INTRODUCTION

Ms Rochelle Conaghan (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) of 1 July 2015 which affirmed the decision of the Department of Human Services (the Department) to cancel the Applicant’s disability support pension (DSP) on 15 April 2015.
The Applicant was initially granted the DSP effective from 29 September 2010 – Exhibit 1 T17 p.165.
The qualification criteria for the DSP are contained in s 94 of the Social Security Act 1991 (the Act). To be qualified for the DSP, inter alia, a person must have a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables and a continuing inability to work.
The Impairment Tables which were in force when the Applicant was initially granted the DSP were replaced by a Determination made in 2011 (Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination)), and which operated from 1 January 2012 – Cl 2, the Determination; s. 2, Social Security and Other Legislation Amendment Act 2011..
On 26 September 2014 the Department commenced a review of the Applicant’s medical qualification for the DSP, and issued a notice under section 63 of the Social Security (Administration) Act 1999 requiring her to provide updated information about her medical condition – Exhibit 1 T16 p.162.
In determining a person’s qualification to continue to receive the DSP the decision-maker must apply the instrument for determining an applicant’s level of impairment that was in force at the date when the section 63 notice is given – s. 27, the Act. In this matter, the relevant instrument is the Determination.
On 15 April 2015 the Department cancelled the Applicant’s DSP because it was determined that she did not have an impairment rating of 20 points or more under the Impairment Tables – Exhibit 1 T10 p. 99.
That decision was subsequently affirmed by an Authorised Review Officer (ARO) on 24 April 2015 (Exhibit 1 T12 p. 112) and by the AAT1 on 1 July 2015.
The Applicant was represented at the hearing of 7 December 2016 by her mother, Kylie-Jane, who participated by conference telephone from Tasmania. The Applicant was unwell and did not participate or give evidence at the hearing.
The Secretary, Department of Social Services (the Respondent) was represented by Ms Donna Smith, Senior Government Lawyer. Ms Smith also prepared the Secretary’s Statement of Facts & Contentions (SSFC) dated 24 November 2016, which has been of great assistance to the Tribunal.
BACKGROUND
The Applicant is a 22 year old female who was awarded the DSP in September 2010. Her claim was originally for the following conditions: somatoform disorder, central auditory processing disorder, asthma and depression – Exhibit 1 T5 p.66. In the Job Capacity Assessor (JCA) Report for that claim, dated 22 September 2010, the JCA determined that the Applicant suffered from a “Psychol/Psychiatric Disorder – Other” and a “Learning Disability”, each of which was considered to be fully diagnosed, treated and stabilised – Exhibit 1 T6 p.70. I note that a different Impairment Determination applied for the assessment of that claim than applies for the present application.
Following the Department’s review of the Applicant’s medical qualification for the DSP, a medical report from Dr Julian Chin, dated 10 October 2014 was provided by the Applicant - Exhibit 1 T7 pp.75-84. Dr Chin was the Applicant’s GP, and is based in Pottsville, New South Wales.
In response to Question 4: “Does the patient have one or more medical conditions that have a SIGNFICANT IMPACT on their ability to function…?”, Dr Chin outlined two classes of conditions having the greatest impact on the Applicant: pseudo-seizures – conversion disorder, chronic headaches and anxiety (p.77) and central auditory processing disorder (p.80).
Dr Chin stated that the onset of the pseudo-seizures was approximately 2009, and that the clinical features of the condition were chronic headaches as well as being prone to seizures (pp.77-78). He further opined that the impact of this condition was involuntary loss of consciousness, altered consciousness and problems with coordination (p.79). Dr Chin stated that the condition was expected to persist for more than 24 months and within that period the impact on her ability to function was expected to remain unchanged (p.79).
As to the central auditory processing disorder, Dr Chin estimated that onset of this condition was 1997 (p.80) and had resulted in hearing impairment (p.81). The impact of the condition on the Applicant’s ability to function was stated to be concentrating, decision making, memory, problem solving affected and language delays (p.82). Again, Dr Chin was of the opinion that this condition would persist for more than 24 months and the impact on the Applicant’s ability to function was not expected to change in that time period (p.82).
Subsequently, the Applicant had a face to face interview with a JCA who produced a report dated 27 March 2015 – Exhibit 1 T9 p.91. It is worth noting that the JCA was a registered psychologist – Exhibit 1 T9 p.91. The JCA recommended the Applicant be awarded a total impairment rating of 10. The rationale for this recommended rating is as follows (p.96):
“Previous Job Capacity Assessment report dated 20/09/2010 was reviewed for this assessment. This past assessment allocated 20 points under Table 6, psychiatric impairment (old impairment tables) for the condition of Somatoform Disorder. The current assessment recommends that the conditions of Psychoseizures – conversion disorder/Chronic headaches – anxiety, are not full diagnosed, treated and stabilised at this time. The conditions have not been confirmed by a Psychiatrist or Clinical Psychologist, and psychiatric/psychological interventions, may assist with significantly improving this condition in the next 2 years. The current assessment indicated that there is a moderate impairment on Communication Function and allocated 10 points under table 8. This is consistent with the past assessment where a moderate impairment was recommended and 15 points were allocated under Table 9 using the old impairment tables. The past assessment has recommended a baseline work capacity of 0-7 hours per week, with a future work capacity with intervention of 8-14 hours per week. This differs from the current assessment as the baseline work capacity recommended is 8-14 hours per week, with a future work capacity with intervention of 15-22 hours per week.”
As previously stated, on 15 April 2015 the Department determined to cancel the Applicant’s DSP on the basis that she had been assessed as having an impairment rating of less than 20 points – Exhibit 1 T10 p.99. This decision was the subject of a review by an ARO who attempted unsuccessfully to contact the Applicant to discuss the review – Exhibit 1 T12 p.112. The ARO produced detailed reasons for affirming the Department’s decision. These are set out below (Exhibit 1 T12 pp. 113-114):
“From 1 January 2012, qualification for Disability Support Pension is reviewed using a new version of the Impairment Tables. These Tables assess impairment in relation to work and focus on what a person is able to do.
To remain qualified for Disability Support Pension you need to continue to have permanent conditions which can be assigned a rating of 20 points or more under the Impairment Tables. A permanent condition is one that has been fully diagnosed, treated and stabilised, is likely to continue for at least two years, and it is unlikely that there will be any significant functional improvement within that time. I will look at each of your medical conditions in more detail.
Endometriosis
The medical report by Dr Chin listed ‘probable endometriosis’ as a condition that is general well managed (sic) and causes limited or minimal impact on your ability to function. The Job Capacity Assessment dated 27 March 2015 states you are awaiting surgery and considered the condition to be temporary. I’m inclined to agree with this view and as a result, the condition cannot be assigned an impairment rating.
Asthma
The medical report completed by Dr Chin listed intermittent asthma as a condition that is general well managed (sic) and causes limited or minimal impact on your ability to function. The Job Capacity Assessor after discussing your asthma with you said the condition was chronic but well managed. The condition has been considered permanent in that it is fully diagnosed, treated and stabilised. Given the minimal impact on function, a zero point impairment rating applies.
Shoulder disorder
The medical report completed by Dr Chin refers to a left shoulder impingement. You provided an x-ray and ultrasound report from July 2014 however there is no evidence of further specialist intervention or treatment. As a result, the condition cannot be considered fully treated and stabilised and cannot be assigned an impairment rating.
Pseudo-seizures
Dr Chin listed this condition as pseudo-seizures, conversion disorder, chronic headaches and anxiety with onset in 2009. The medical report shows that you have been treated by Dr Swapna Sebastian (neurologist) and Lisa Pederzollo (psychologist). The Job Capacity Assessor considered these conditions as relating to mental health rather than being physical or organic in nature.
The impairment tables require conditions involving mental health to have a confirmed diagnosis from a psychiatrist or a clinical psychologist (‘clinical psychology’ is a separate endorsement on top of ‘psychology’). In the absence of a diagnosis from one of these practitioners I have had to conclude that the condition could not be regarded as having been fully diagnosed and cannot be assigned an impairment rating.
Auditory processing disorder
This condition has been considered permanent in that it is fully diagnosed, treated and stabilised given the longstanding history and extensive treatments undertaken. The Job Capacity Assessor assigned an impairment rating of 10 points under Table 8 citing a moderate functional impact on communication in the person’s main language. A ‘moderate’ impact is consistent with the assessment completed at your original claim for Disability Support Pension although under the previous version of the impairment tables 15 points was assigned.
Table 8 of the impairment tables tells us that for 20 points to be assigned the person must have ‘severe’ difficulty understanding day to day language in unfamiliar environments or relating to non-routine tasks even where a sentence or instruction includes only a single step.
There is insufficient evidence to satisfy me that your condition causes a severe degree of impairment, although I acknowledge you may not have the high degree of ease experienced by unaffected people. I have therefore decided that 10 points is the appropriate rating for this condition.”
The Applicant applied for a review of that decision, and her application was heard by AAT1 on 23 June 2015. Unlike the present review, AAT1 had the benefit of the Applicant giving evidence by telephone – Exhibit 1 T2 p.3. The Tribunal, having carefully considered all of the evidence before it, assigned the Applicant a total impairment rating of 10 points, and therefore upheld the decision to cancel her DSP.
THE LEGISLATION
To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairments is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Impairment Tables are located in the the Determination, which was made pursuant to section 26 of the Act and came into force on 1 January 2012.
Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clauses 5(2) and (3). Importantly, Clause 5(2) explains that the that the Tables are function based rather than diagnosis based (Cl 5(2)(b)), and describe functional activities, abilities, symptoms and limitations - Cl 5(2)(c). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions - Cl.5(2)(d).
The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).
An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).
To be a permanent condition it must be:
(a)fully diagnosed by a medical practitioner;
(b)fully treated;
(c)fully stabilised; and
more likely than not, to persist for more than two years – Cl 6 (4).
In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).
A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).
A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.
This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
CONSIDERATION
The central question to be determined by the Tribunal is whether the Applicant was qualified for the DSP on the day it was cancelled, namely 15 April 2015 and not at the time the cancellation decision was reviewed by the Tribunal – Freeman v Secretary, Department of Social Security [1988] FCA 294; 19 FCR 342 at [9] per Davies J.
In reaching its decision the Tribunal is not limited to considering the material that was presented to the original decision-maker. The Tribunal’s mandate is to stand in the shoes of the original decision-maker and consider the matter afresh and in so doing receive such evidence that is relevant and of value, including evidence produced after 15 April 2015 – Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ.
In particular, the Tribunal is at liberty to admit into evidence and consider medical reports prepared after 15 April 2015 provided that those reports relate to the Applicant’s medical condition at the time the original cancellation decision was made – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.
Does the Applicant suffer a physical, intellectual or psychiatric impairment?
The Respondent accepts that the Applicant suffers from physical and psychiatric impairments and therefore satisfies the requirements of s 94(1)(a) of the Act - SSFC para 34. Having regard to the evidence before the Tribunal, I agree that concession was properly made.
Do the Applicant’s impairments attract 20 points or more under the Impairment Tables?
1. Central Auditory Processing Disorder
The Respondent, appropriately, concedes that the Applicant’s central auditory processing disorder (CAPD) is fully diagnosed, treated and stabilised – SSFC para 35. It appears that the Applicant’s CAPD was first diagnosed in 1997 by Dr J Malouf, an ear, nose and throat specialist. The CAPD was confirmed by an audiologist, Dr Alison Jackson, in a lengthy report dated 2 October 2008, and when the Applicant was only in Grade 8 – Exhibit 1 T14 p.136.
The Respondent contends (SSFC para 36) that a rating of 10 points should be assigned under Table 8 of the Impairment Tables. Table 8 is to be used where a person has a permanent condition resulting in functional impairment affecting communication functions.
Dr Chin, in his medical report of 10 October 2014, noted that the Applicant had a CAPD which had resulted in hearing impairment – Exhibit 1 T7 p. 81. This condition impacted on the Applicant’s ability to concentrate, decision making, memory, problem solving and language (p.82). In a report dated 9 September 2015 Dr Chin expanded on his prognosis and said (Exhibit 2 ST8 p.185):
“CAPD since early childhood – central auditory processing disorder (CAPD), is an umbrella term for a variety of disorders that affect the way the brain processes auditory information. Individuals with CAPD usually have normal structure and function of the outer, middle and inner ear (peripheral hearing). However they cannot process the information they hear in the same way as others do, which leads to difficulties in recognizing and interpreting sounds, especially the sounds composing speech. It is thought that these difficulties arise from dysfunction in the central nervous system. This condition has hampered her journey through the education system and requires learning based strategies and changes to optimise learning.”

The Job Capacity Assessor noted that the Applicant told her that she had difficulty hearing with background noise, and interpreting information that she had heard – Exhibit 1 T9 p.92.
In her 2008 report, Dr Jackson outlined a number of tests that were performed. She concluded that the Applicant had difficulty with integration and auditory decoding, although she had essentially normal hearing levels in both ears (Exhibit 1 T14 p.136). Dr Jackson made the following observations (p.138):
“Rochelle’s performance in tests today in conjunction with reported observations from her mother and teachers, suggest a difficulty in integration. Rochelle may report significant difficulty hearing in noise and difficulty linking the linguistic content with the prosodic intent, leading to possible misunderstandings of the overall message, especially for sarcasm and similar communications in which the content and prosody differ…She may also experience problems with any task in which interaction between the two hemispheres of the brain is required, resulting in delayed responses. Another characteristic can be difficulty determining how to do a task, difficulty starting the task and needing a lot of extra time and practice to complete the task. It may also be associated with poor bimanual or bipedal coordination abilities, musical difficulties such as playing an instrument that requires significant bimanual coordination (e.g. piano), haring the lyrics of songs, or singing in time to a melody. Further functional weaknesses include greater difficulty when multimodality cues are added, significant difficulty taking dictation or notes; and difficulty drawing a picture from verbal or written descriptions or instructions...
A difficulty was also evident in Auditory Decoding. This is primarily a decrease in the ability of the auditory system to fill in missing parts of an auditory signal. She may often (but not always) report difficulty hearing in noise or with speakers who do not enunciate clearly; resulting in frequent requests for repetition. She may frequently ”mishear” and consequently misunderstand messages. She may process information in a way that is slow and inaccurate…”
At the AAT1 hearing, the Applicant advised the Tribunal that she did not use any alternative communication styles such as sign language and could understand straightforward instructions such as “put the glass on the table” – Exhibit 1 T2 p.7.
The Tribunal was also advised at the hearing that the Applicant is undertaking some part-time tertiary studies. Other material before the Tribunal suggests that the Applicant is obtaining credits and distinctions – Exhibit 2 ST17 p.221. At the hearing the Applicant’s mother said that her daughter’s CAPD had deteriorated in recent years, but it has not been professionally reassessed. She also said that her daughter’s capacity to attend and complete her tertiary studies was limited and that she received ongoing assistance from her family both in terms of assisting in taking notes, and also in terms of completing assignments.
In order to obtain a rating of 10 points under Table 8 of the Impairment Tables there must be a moderate functional impact on communication. The person, for example, must have some difficulty understanding day to day language, particularly where a sentence or instruction includes multiple steps or concepts, or need instructions repeated or broken down into shorter sentences. Other examples are where the person has moderate difficulty producing speech or coordinating speech movements or there is damage to speech structures which makes the speech slow and difficult for strangers to understand. The last example of using alternative or augmentative communication (such as sign language) is not applicable.
Clearly, from the evidence before the Tribunal, the Applicant’s CAPD has resulted in difficulty with integration and auditory decoding. The CAPD has resulted in a moderate functional impact on her communication skills.
Conversely the evidence does not permit awarding a rating of 20 points, which is where there is a severe functional impact on communication. In order that there is a severe functional impact, a person must have severe difficulty understanding day to day language in unfamiliar environments or relating to non-routine tasks. Alternatively the person must have severe difficulty producing speech, the speech is difficult for strangers to understand, has a vocabulary of less than 50 words or the speech is not used appropriately.
The evidence before the Tribunal suggests that while the Applicant’s CAPD has had a deleterious impact on her ability to communicate, it has not had the severe functional impacts that would result in a rating of 20 points. During the hearing, the Applicant’s mother informed the Tribunal that her daughter whilst having slow speech did not have a stutter or stammer. Further, while the Applicant mixes her words up she does not have a vocabulary of less than 50 words. Finally, the Applicant’s mother confirmed that her daughter did not use sign language, but in loud environments she frequently used lip reading.
In the absence of a more recent report from an audiologist, and not having had the benefit of hearing the Applicant give oral evidence, I am necessarily constrained by the uncontested evidence that has been presented. That evidence convincingly leads to the conclusion that the Applicant suffers from CAPD had results in a moderate functional impact as outlined in the Impairment Tables and she should be awarded 10 points under those Tables.
2. Pseudoseizures
The Respondent contends (SSFC para 39) that while the Applicant has experienced physical symptoms, no organic cause of these has been diagnosed. Consequently the Respondent contends that the pseudoseizures is the manifestation of a mental health condition, and as there has been no diagnosis by a psychiatrist or a clinical psychologist, the condition cannot be assigned a rating under Table 5 of the Impairment Tables.
The medical evidence before the Tribunal is consistent with the proposition that the Applicant’s psuedoseizures have no apparent organic cause. The starting point is a CT scan of the brain which was performed on 1 April 2009. The scan was at the request of Dr R Panda who referred the Applicant following recurrent headaches and dizziness. The scan disclosed no abnormalities, with the exception of “some global prominence of the ventricular system which is somewhat atypical for the patient’s age. Although this may be a normal variant further assessment with MRI is advised.” – Exhibit 2 ST1 p. 171.
An MRI, as recommended, was undertaken on 20 April 2009. Dr Yu-Ming Tang’s diagnosis was (Exhibit 2 ST2 p. 172):
“Mild ventriculomegaly. No MR evidence of acute hydrocephalus. No structural cause for this has been identified.”
A further MRI and MRA were undertaken on 18 June 2009. Again the conclusion reached was that there were no major organic abnormalities (Exhibit 2 ST2 p. 174):
“Persistent very mild ventriculomegaly.
No intracranial vascular lesion or structural abnormality.”
The next month the Applicant was examined by Dr Geoffrey Wallace, a paediatric neurologist. In his medical report of 6 July 2009 he made the following diagnosis (Exhibit 1 T13 p.129):
“Rochelle has had a headache since February this year associated with nausea and vomiting and more recently has developed an unusual gait. She has been thoroughly investigated by David and I suspect her headaches represent migraines. The gait does not conform with any organic pathology but I am sure will improve once the migraine is under control. I have commenced anti-migraine treatment.”
Two months later the Applicant was examined by Dr Richard Adams, a consultant neurologist. Dr Adams’ focus was mostly on the Applicant’s “serpentine gait”. It was described as follows (Exhibit 1 T13 pp. 125-126):
“She follows a snake like pattern across the room. There is a lot of swaying of the body from side to side. Nevertheless, she either misses objects or just supports herself on things like chairs and tables. She really demonstrates very good balance with this method of walking.”
The main conclusions reached by Dr Adams were (p. 126):
“I reviewed Rochelle’s various scans. She has had two MRI scans of the brain, one with MR angiography. I think these are normal. The ventricles are a little larger than average but the sulci and basal cisterns look normal. There is no abnormal signal in the brain around the ventricles. The MR angiography is normal. She has had a MRI scan of the whole spine which is normal.
Rochelle’s serpentine gait is definitely non-organic. She is demonstrating very good balance when she walks like this
She has chronic daily headache. It’s a bit hard to be more specific about the headache’s exact nature. I don’t really think it’s migraine. It’s definitely not due to any worrying cause.”
On 18 January 2010 the Applicant was admitted to the Mater Children’s Public Hospital, South Brisbane. She was discharged on 22 January 2010. During her time at the hospital the Applicant was again examined by Dr Wallace. His principal diagnosis was: “Non organic serpentine gait. Somatoform presentation” - Exhibit 1 T13 p. 127. Dr Wallace also diagnosed “Headaches – no abnormal neurology” - p.127.
Somatoform presentation refers to somatic symptom disorder, which was formerly referred to as somatoform disorder. It is a form of mental illness that causes one or more bodily symptoms, including pain.
Dr Wallace also commented: “CYMHS review – possible somatoform disorder. Patient and parents refused to engage into further treatment with CYMHS.” “CYMHS” is the abbreviation of Child and Youth Mental Health Services.
Finally, Dr Wallace noted (p.127):
“Neurological exam – normal except for meandering serpentine gait.
Review of investigations done showed no neurological cause/organic cause for symptoms.”
As time progressed the Applicant’s symptoms became more severe and intrusive. By 2010 she was presenting with nocturnal convulsions with associated vomiting and screaming on a bi or tri weekly basis. On 19 July 2010 she underwent an overnight sleep study together with a 28-channel (EEG) recording. The conclusion reached from this study was as follows (Exhibit 2 ST4 p.175):
“There were no pathological rhythms to be seen and in particular, there were no features of epilepsy.”
In 2014 Dr Chin referred the Applicant to Dr Swapna Sebastian, a Consultant Neurologist. In his report of 11 April 2014 Dr Sebastian dealt with the Applicant’s seizure problems. He made the following observations (Exhibit 1 T13 p. 119):
“…it appears as if these seizures were thought to be psychogenic non-epileptic seizures. No medication was recommended, however down the track she was put on Neurontin 100mg tds which says has significantly decreased the seizures. By this she means she has one nocturnal seizure every week. Minor seizures are described as episodes where she goes blank and during these episodes she can see flashes of light, her vision goes hazy, she can walk around in a daze, sometimes she sits, but there are no automatisms such as fluttering eyelids etc. Rachelle (sic) is partly aware of these episodes.”
Following her examination by Dr Sebastian, the Applicant was admitted to Royal Brisbane and Women’s Hospital on 15 August 2014. The hospital notes are as follows: “19 yo lady elective admission for VEEG for characterisation of ?SZ events – nocturnal and absence events vs ?non-epileptic activity” – Exhibit 2 ST7 p.182. The Applicant was discharged on 18 August 2014 and during the period of admission underwent various tests. One of the results of the tests was: “Nil SZ events captured”. Under “follow up arrangements” the entry was “Nil Entered”, under “Alerts”, “Nil Entered” and under “Recommendations to Patient” was “Nil Entered” – (p.183).
The most recent medical report from a neurologist is that of Dr Meenakshi Raj dated 23 March 2016. The Applicant informed Dr Raj that her headaches were getting worse and her seizures were increasing with episodes not being exclusively nocturnal but also during the day averaging two or three per week. Under the heading “Clinical Impression” Dr Raj made the following diagnosis (Exhibit 2 ST12 pp. 203-204):
“Clinically, the diagnosis is a bit confusing. The headaches are consistent with combination of tension and migraine headaches. These episodes of seizure like activities are really odd to explain. I had a long discussion with Rochelle. I suggest that she change her oral contraceptive pill to Depo injections. Obviously the pill can worsen the migraine headaches… I have sent her for various blood investigations. I have organised an inpatient prolonged EEG stay to evaluate this further. I will also request the results of previous investigations from her old neurologists.”
As recommended by Dr Raj, the Applicant undertook a two day (25-27 July 2016) 28 channel EEG test. Only 18 hours of data was recorded, but this was said to be of high quality. Dr Ventzi Bonev, neurologist, who supervised the tests provided this technical report (Exhibit 2 ST 14 p. 206):
“Five events were recorded during the entire 48-hour period, but only three events (including a ”seizure” and two ”pre-seizures”) were captured on the recording. These events were reported as “twitching”, preceded by a metallic taste with subsequent ”sleeping”. The EEG during these events showed movement and electrode artefact, but there were no epileptiform abnormalities seen.”
Finally, reference can be made to the report of Dr Chin of 9 September 2015 where he stated (Exhibit 2 ST8 p. 186):
“If Rochelle could accept that the underlying basis of much of her disability is emotional stress and treatment targets at restoring her emotional balance and engage with a psychiatrist, then her somtoform (sic) conditions would improve.”
I have set out at some length the various medical reports and test results that have been prepared over the past seven years. There is a thread with joins together each of these diagnoses, and that is that the Applicant’s seizures do not have an organic genesis. Somatic symptom disorder is a difficult, and somewhat controversial diagnosis. It is difficult because it is based on the inability to provide a medical explanation for actual, and often very painful, physical complaints. Insofar as it a diagnosis of exclusion, some caution needs to be exercised before accepting it. To misdiagnose a person with a psychiatric complaint when the genesis of their ailment may be a rare physiological complaint, could result in serious and tragic consequences for the misdiagnosed patient.
Dr Sandra Armstrong of the Health Professional Advisory Unit of the Department of Human Services, prepared a lengthy report for Ms Donna Smith for the purpose of this hearing. Dr Armstrong undertook an extensive desktop review of all the various medical reports and tests as well as speaking to various medical professionals. In particular, she spoke to Dr Chin and reported the following (Exhibit 2 ST17 p. 228):
“…he confirmed that Ms Conaghan’s seizures have no organic basis in our 3/11/16 phone conversation. Dr Chin also told me that her current prescription of anti-epileptics was as a placebo. Ms Conaghan and her parents are unwilling to accept that her seizures are not due to an organic disorder, although Dr Chin thought there were underlying psychological factors.”
The only contrary medical diagnosis to all of those mentioned above is that of Dr Elizabeth Quinn, clinical psychologist who saw the Applicant and provided a report dated 27 June 2015. Her assessment of the Applicant was as follows (Exhibit 1 T13 p.118):
“Rochelle does not appear to be suffering from longstanding or severe mental health difficulty. The heightened levels of stress she is experiencing are purely the result of managing her physical difficulties and the associated obstacles with these. I recommended that Rochelle’s physical difficulties are adequately assessed and considered in regards to her ongoing eligibility for the Disability Support Pension.”
Dr Quinn prepared an updated report which is dated 22 November 2015. In this report she made the following diagnosis (Exhibit 2 ST10 p. 197):
“Rochelle does not meet criteria for Munchausen Syndrome. In which an individual fabricates medical illnesses’ (sic) and creates them for attention. Rochelle is very genuine in the burden these seizures place on her. Rochelle’s parents and sisters can verify that her seizures are not “fabricated” as they have seen how these seizures are completely involuntary. It is very clear that Rochelle’s seizures do not have a psychological basis at all and therefore must have a physical basis.”
Both reports of Dr Quinn were prepared after the date of cancellation of DSP, but insofar as the Applicant’s pseudoseizures have existed since 1999, her diagnoses are of relevance and can be taken into account by the Tribunal in reaching its decision.
The reports of Dr Quinn, although intended to assist the Applicant, in fact have the opposite consequence. In definitely ruling out a psychiatric diagnosis and forming the view that the seizures have a physical basis, Dr Quinn necessarily requires the Tribunal to reach two conclusions.
The first conclusion is whether the Applicant’s seizures, based on the preponderance of medical evidence, are organic and not psychological. All of the various EEGs conducted over a long period of time failed to capture any epileptiform activity. All of the medical tests, since 1999 have produced no evidence of any organic origin of the seizure type condition of the Applicant. Accordingly, insofar as there is a difference of opinion between Dr Quinn and all of the other health specialists referred to above, I prefer the conclusion reached by the other medical professionals that the Applicant’s pseudoseizures do not have a physiological basis. Accordingly, the Applicant’s pseudoseizures must be dealt with as a psychiatric disorder and assessed pursuant to Table 5 of the Impairment Tables, namely a functional impairment due to a mental health condition.
Unfortunately, Dr Quinn’s second conclusion, namely that there is no psychological basis at all for the Applicant’s seizures undercuts the Applicant’s case when assessing her condition pursuant to Table 5 of the Impairment Tables. Certainly by ruling out a psychological basis for the pseudoseizures, no utility can be made of her reports to confirm a diagnosis for the purposes of Table 5.
The Applicant is currently being assessed by Dr Goran Stevans, a Sydney-based psychiatrist. Most of the medical material referred to above was forwarded to Dr Stevans by Ms Smith on 27 October 2016 – Exhibit 2 ST16 p.219. Dr Armstrong contacted Dr Stevans on 17 October 2016 after his first appointment with the Applicant. Dr Stevans was, understandably, not prepared to make a psychiatric diagnosis until after he had reviewed the previous medical reports and studies and had a further appointment with the Applicant – Exhibit 2 ST 17 p.228. At the time of the Tribunal hearing there was no further evidence presented on any conclusions or views reached by Dr Stevans.
Table 5 requires that there must be permanent condition resulting in functional impairment due to a mental health condition. The diagnosis of this condition must be made by an appropriately qualified medical practitioner, including a psychiatrist, with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist. Self-reporting of symptoms alone is insufficient.
The Respondent contends (SSFC para 50) that the impairment caused by pseudoseizures cannot be assigned points under Table 5 as the psychiatric diagnosis has not been confirmed by a psychiatrist.
The Respondent made a number of further submissions, but I do not need to deal with them. The threshold requirement for assigning points under Table 5 has not been met.
I accept and agree with the diagnosis of Dr Quinn that the Applicant is not suffering from Munchausen Syndrome: the evidence before the Tribunal is that the pseudoseizures suffered by the Applicant are real and disabling. There is absolutely no evidence or suggestion that the Applicant is fabricating her seizures or creating them for attention. On the contrary, the evidence suggests that the seizures have worsened over time, and the impact on the Applicant and her family has been devastating. What, however is unclear, is the exact cause of the psuedoseizures, other than they are of a psychiatric nature.

The missing link in this puzzle is a sound and empirically based psychiatric assessment. Fortunately the Applicant is now being seen by Dr Stevans, and this omission will soon be rectified. No blame can be placed on either the Applicant or her family for resisting attempts to have mental health intervention of this type earlier. They have exhausted all avenues for exploring a physical origin for the seizures. By its very nature, as mentioned earlier, somatoform disorder is diagnosed by exclusion; and in order to reach a sound conclusion as to whether a person is suffering from this disorder, care needs to be taken to exclude all reasonably possible physiological causes.
The Tribunal has dealt on many occasions with persons who have claimed to be suffering from somatoform disorder, e.g. Said and Secretary, Department of Family and Community Services [2002] AATA 951, Croker and Secretary, Department of Employment and Workplace Relations [2007] AATA 1224 and Berthlmawos and Secretary, Department of Social Security [2016] AATA 116. If Dr Stevans diagnoses the Applicant with this disorder, then on the basis of the Respondent’s concession that her condition is fully treated and stabilised (SSFC para 51), there is a good likelihood that a different result may ensue. However, what is currently incontrovertible, is that no points can be awarded under Table 5 until such time as a sound diagnosis by a psychiatrist is made. It is to be hoped, as noted, that this can occur as soon as is reasonably practicable.
Although it is not necessary for me to form an opinion, I do note that if the Applicant’s condition had been fully diagnosed, treated and stabilised, I would not have agreed with the Respondent’s contention that zero points be awarded.
Accordingly, no points can be awarded to the Applicant under Table 5.
3. Chronic Headaches
The Respondent has raised chronic headaches are as separate issue, and contends that they have been fully diagnosed, treated and stabilised, but no points can be assigned for their functional impact – SSFC para 55. The basis for this contention is that this condition is closely related to the Applicant’s pseudoseizures and accordingly no points can be assigned for the functional impairment caused by this condition.
It is not clear to the Tribunal that the Applicant’s chronic headaches can be separated from her overall somatoform disorder. There is no convincing medical evidence before the Tribunal that would allow a sensible diagnosis that the Applicant’s chronic headaches are a separate condition.
However, even if it were accepted that the chronic headaches were a separate condition with a different cause, the Tribunal agrees with the Respondent that there is no evidence presented that would allow the Tribunal to determine the level of functional impairment caused by the chronic headaches (SSFC para 59). Consequently, no points can be awarded for this condition.
4. Asthma
The Respondent concedes that the Applicant’s asthma condition is fully diagnosed, treated and stabilised but contends it should be assigned a rating of zero under Table 1 (Functions requiring physical exertion and stamina) – SSFC para 60.
In the Job Capacity Assessment Report of 27 March 2015, the following comments were made about the Applicant’s asthma condition (Exhibit 1 T9 p.93):
“The client reports episodic symptoms of shortness of breath.
Treatment: the client reports medications including Ventolin and Symbicort.
Prognosis: This condition was listed in the Medical Report of Dr Chin under ‘conditions that are generally well managed and that cause minimal impact on function’. The client confirmed that the condition is chronic, well managed and has minimal impact on function. It is therefore assessed as permanent and fully diagnosed, treated and stabilised.”
The Tribunal has admitted into evidence three medical reports of Dr Chin: 25 August 2010, 10 October 2014 and 24 April 2015. In the first two of those reports, Dr Chin reported the Applicant’s asthma condition in the section dealing with “medical conditions that are generally well managed and cause minimal or limited impact on ability to function” – Exhibit 1 T4 p.62 and T7 p.83. However, in his report of 24 April 2015, Dr Chin included the Applicant’s asthma condition in the section dealing with “conditions that have a significant impact on the patient’s ability to function”. He noted that the Applicant’s treatment for this condition was the use of an inhaler and the symptoms as “recurrent cough, shortness of breath and wheezing” – Exhibit 1 T11 pp.107-108.
Although the Applicant did not appear or give evidence, I have the benefit of the AAT1 Decision. The Applicant did appear at that hearing. Member Amundsen made the following observations (Exhibit 1 T2 p, 5):
“17. Mrs Conaghan disputed that Miss Conaghan’s asthma was generally well managed and caused minimal impact. She commented that Miss Conaghan plays ”quite a bit of sport” and that she suffers shortness of breath when she does so. In response to the tribunal’s question Miss Conaghan stated that she had difficulty walking to the local shops as they are about 15 to 20 minutes away and involve climbing steep hills. In response to the tribunal’s question about how long she could walk on flat terrain, Miss Conaghan responded ”five minutes”. The tribunal noted that that response seemed inconsistent with earlier evidence that she played quite a bit of sport. Miss Conaghan commented that it was the combined impact of Miss Congahan’s various conditions that limited her walking capabilities.
18. In response to the tribunal’s questions, Miss Conaghan advised that the sport she plays is tennis but she could not do so for 30 minutes at a time. She nominated 20 minutes as the amount of time that she could sustain such activity. She advised that she assists with work around the house such as hanging out the washing and doing the washing up.”
Having carefully considered the evidence before it and applying Table 1, the Tribunal concluded that no points could be assigned.
The Respondent contends that the Applicant cannot be assigned 5 points under Table 1. My attention was drawn to the evidence given to AAT1, in particular the capacity of the Applicant to play sport for 20 minutes and her capacity to walk to walk around a shopping mall. Moreover, it was contended that the Applicant’s asthma would not prevent her from performing most work-related tasks other than those involving heavy manual labour – SSFC para 64.
With the exception of Dr Chin’s report of 24 April 2015, the preponderance of evidence before the Tribunal, including two earlier reports of Dr Chin, suggest that the Applicant’s asthma condition is well managed and, in terms of the Impairment Tables, has a minimal impact on function.
Unfortunately I did not have the benefit of being able to pose questions to the Applicant which may have elucidated whether her condition has deteriorated since 2014, which would explain the difference in diagnosis of Dr Chin. Certainly the evidence provided by the Applicant to AAT1 on 23 June 2015 suggests that her asthma condition could not be assigned 5 points.
Consequently, on the basis of the evidence before the Tribunal, I cannot assign the Applicant any points under Table 1. I would respectfully suggest that if the Applicant applies for the DSP again she obtain an updated medical report if in fact her asthma condition has deteriorated.
5. Endometriosis
In his 2014 medical report, Dr Chin noted under “medical conditions that are generally well managed and that cause minimal or limited impact on ability to function” possible endometriosis – Exhibit 1 T7 p.83. Dr Chin did not refer to this condition in his 24 April 2015 report – Exhibit 1 T11 pp. 101-111.
The Applicant’s endometriosis condition was also discussed in the Job Capacity Assessment Report which followed a face to face meeting on 6 February 2015 at Tweed Heads. The JCA reported the Applicant stating that she was experiencing pelvic pain and was awaiting surgery which was due to occur on 27 February 2015. The JCA formed the view that the condition was temporary and not permanent based on the information then at hand – Exhibit 1 T9 p. 93.
The only other reference to this condition is in the decision of AAT1 (Exhibit 1 T2 p.9):
“42. Mrs Conaghan advised that Miss Conaghan had surgery for this condition in March 2015. Miss Conaghan was prescribed medication which she advised would require six months to be fully effective.”
The Respondent contends (SSFC para 66), and the Tribunal agrees, that this condition was not fully treated and stabilised at the date of cancellation and therefore cannot be assigned impairment points.
6. Left Shoulder Impairment
In his 10 October 2014 medical report, Dr Chin noted under “medical conditions that are generally well managed and that cause minimal or limited impact on ability to function” left shoulder impingement – Exhibit 1 T7 p.83.
In his 9 September 2015 report, Dr Chin, under the heading “Orthopaedic conditions”, noted (Exhibit 2 ST8 p.185):
“2009 cervical spinal pain and 2014 left shoulder problems as a consequence of having hurt herself during the pseudoseizures and falls from her unsteady gait.”
Dr Chin went on (p.186) to outline that the Applicant was receiving “chiropracty (sic) and physiotherapy” for this condition.
The Applicant informed the Job Capacity Assessor on 6 February 2015 that this condition caused her chronic pain and she had difficulty lifting. The Assessor was of the view that the condition was permanent and fully diagnosed, but not fully treated and stabilised. She considered that a physiotherapy and specialist review was likely to assist in significantly improving this condition over the next two years – Exhibit 1 T9 p.94.
In his September 2015 report, Dr Chin opined that the Applicant could be referred to an orthopaedic shoulder specialist for her left shoulder impingment – Exhibit 2 ST8 p.186. However, there is no information before the Tribunal as to whether or not such a referral was made, and, if so, what was the outcome of that consultation.
At the AAT1 hearing Mrs Conaghan advised the Tribunal that the Applicant had injured her shoulder during a seizure episode and had undergone X rays and physiotherapy sessions. Importantly she (Mrs Conaghan) “that Miss Conaghan needs to be keep doing her advised exercises but that otherwise the condition is fine.” – Exhibit 1 T2 p.9. I note that the Tribunal has not received any evidence of the Applicant participating in physiotherapy sessions, although it is alluded to in Mrs Conaghan’s evidence before AAT1.
The Respondent contends (SSFC para 67) that the shoulder condition is not fully treated and stabilised and, therefore, cannot be assigned impairment points. On the basis of the scant information presented to the Tribunal, this contention is the inescapable conclusion to be formed on the evidence available. Consequently, no impairment points can be assigned for this condition.
7. Irritable Bowel Syndrome
Dr Chin reported on 9 September 2015 that the Applicant suffered from “irritable bowel syndrome – a widespread condition involving recurrent abdominal pain and diarrhoea or constipation, often associated with stress, depression and anxiety” – Exhibit 2 ST8 p.185. He opined that strategies for dealing with this condition were: “dietary changes, exercise, stress reducing strategies” – p.186.
This condition has persisted for some time. In 2010, Dr Chin referred the Applicant to Dr Allen Lim, a Gastroenterologist and Hepatologist. Dr Lim’s diagnosis of the Applicant is contained in a medical report of 9 December 2010. Dr Lim stated (Exhibit 1 T15 p.141):
“Her symptoms continue and are overall of low grade. As you know, her gastroscopy and colonoscopy were normal as are the biopsies taken from various parts of the GI tract.
I have reassured them (the Applicant and her parents) of the lack of pathology. I suppose from here on, we manage her for her symptoms… At this stage I have discharged her from follow up.”
The Respondent contends, based on the relatively limited medical evidence available, that the irritable bowel syndrome has been fully diagnosed, treated and stabilised but cannot be assigned any points as the functional impact on the Applicant does not meet any of the criteria for 5 points under either Table 10 or 13 – SSFC para 68.
The Tribunal agrees with the Respondent’s contentions. Dr Lim diagnosed the condition as having symptoms that were “low grade”. In the absence of any evidence suggesting that this condition has deteriorated, no impairment points can be assigned.
Overall Impairment Rating
The Tribunal finds that the Applicant’s overall impairment rating is 10 points under the Impairment Tables and on that basis does not satisfy s 94(1)(b) of the Act.
Does the Applicant have a continuing inability to work?
As the Applicant’s impairments were not capable of being assigned a rating of 20 points or more under the Impairment Tables, it is not necessary for the Tribunal to address this issue.
DECISION
The decision under review is affirmed.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

............................[Sgd]............................................
Dated: 25 January 2017

Date of hearing: 7 December 2016

Advocate for the Applicant: Kylie-Jane Conaghan

Solicitors for the Respondent: Department of Human Services

[2017] AATA 64

25 January 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Standing

Statutory Construction

Date of hearing:	7 December 2016
Advocate for the Applicant:	Kylie-Jane Conaghan
Solicitors for the Respondent:	Department of Human Services