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

[2020] AATA 931

Fabretto and Secretary, Department of Social Services (Social services second review) [2020] AATA 931 (21 April 2020)

Division:GENERAL DIVISION

File Number:2019/6125          

Re:Ms Jenene Fabretto  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Belinda Pola, Senior Member

Date:21 April 2020

Place:Brisbane

The decision under review is affirmed.

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

Senior Member Belinda Pola

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 (Administration Act) Act 1999 (Cth)

Social Security Act 1991 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (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

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 46 FLR 409

Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810

Fanning and Secretary, Department of Social Services [2014] AATA 447

Faulkner and Comcare [2007] AATA 1541

Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REFERENCE MATERIAL

Social Security Guide, Department of Social Services, version 1.265 (released 3 April 2020),

REASONS FOR DECISION

Belinda Pola, Senior Member

21 April 2020

BACKGROUND

1. On 15 August 2018[1] the Applicant, Ms Jenene Fabretto, signed an Application for the Disability Support Pension (‘DSP’), which was received by the Department of Human Services (the ‘Department’) on 16 August 2018[2].

   [1]     Exhibit 1, T36, pages 254 to 286.

   [2]     Exhibit 1, T36, page 254.

2. On 28 December 2018[3], the Applicant was advised by the Department that their claim for DSP was rejected. The decision to reject the Applicant’s claim for DSP was again affirmed by an Authorised Review Officer (‘ARO’) after an internal review by the Department on          8 May 2019[4].

   [3]     Exhibit 1, T41, pages 306 and 307.

   [4]     Exhibit 1, T42, pages 308 to 312.

3. On 13 May 2019[5], the Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (the ‘Tribunal’) to review the Department’s decision to reject the claim for the DSP. The SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP on 8 August 2019[6].

   [5]     Exhibit 1, T43, pages 313 and 314.

   [6]     Exhibit 1, T2, pages 72 to 78.

4. The Applicant applied to the Tribunal for a second review of this decision on                    25 September 2019[7].

   [7]     Exhibit 1, T1, pages 1 to 6.

   JURISDICTION

5. This is an Application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.

6. The Applicant’s claim of 16 August 2018 has been reviewed in accordance with s135 of The Social Security (Administration Act) 1999 (Cth) (the ‘Administration Act’) by an ARO, and subsequently reviewed by the SSCSD of the Tribunal, in accordance with s179(1) of the Administration Act.

7. The Tribunal has jurisdiction to hear the Applicant’s DSP claim of 16 August 2018.

   ISSUES

8. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 16 August 2018, and ending 13 weeks later on 15 November 2018[8].

   [8]     The Qualification Period is discussed in later paragraphs of this Decision.

9. For the purposes of this Application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments during the Qualification Period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a)[9].

   [9]     Exhibit 2, page 6, paragraph 37.

10. The issue for the Tribunal to resolve in respect of the Applicant’s claim for DSP is:

    (a)whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) within the Qualification Period; and

    (b)if so, did the Applicant have a continuing inability to work?

    RELEVANT LEGISLATIVE PROVISIONS

11. The medical qualification criteria regarding eligibility for DSP are set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act:

    94 Qualification for disability support pension

    (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)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

    …

12. To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support (‘PoS’).

13. Section 26(1) of the Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

14. It is the Tribunal’s role to stand in the shoes of the original decision-maker[10] and determine whether the decision was the correct or preferable one on the material before the Tribunal[11]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

    [10]    Faulkner and Comcare [2007] AATA 1541 [27].

    [11]    Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.

15. Section 6 of the Determination provides that “[t]he impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[12]. Further, the Impairment Tables in the Determination 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[13].

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

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

16. An impairment rating may only be assigned to an impairment if[14]:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.

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

17. Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[15]:

    be fully diagnosed by an appropriately qualified medical practitioner; and

    be fully treated; and

    be fully stabilised; and

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

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

18. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[16]:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

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

19. A condition is considered fully stabilised if[17]:

    (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.

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

20. Reasonable treatment is a treatment that[18]:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

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

21. Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.

22. Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.

23. In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

24. While s11(1)(c) of the Determination provides that in assigning an impairment rating “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

25. As previously detailed in paragraph 10 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a “continuing inability to work”. Section 94(2) of the Act requires that:

    (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.

26. A severe impairment is defined in s94(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.

27. Section 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 this subsection.

28. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a PoS.

    QUALIFICATION PERIOD

29. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[19].

    [19]    Part 2, clause 4(1)(d) of the Administration Act.

30. For the purposes of this decision, the day which the Applicant’s claim for DSP was registered with Centrelink was 16 August 2018[20], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 15 November 2018.

    [20]    Exhibit 1, T36, page 254.

31. This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[21].

    [21]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [1]; Fanning and Secretary, Department of Social Services [2014] AATA 447 [31].

    CONSIDERATION

32. The Application was heard in Brisbane on 24 March 2018, with the Applicant (self‑represented) and the Respondent (represented by Mr Chris Murphy) both appearing by telephone. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).

    Section 94(1)(a) of the Act (Physical, intellectual or psychiatric impairment)

33. In the medical details section of the Applicant’s claim for DSP, received on  16 August 2018[22], the Applicant listed the following medical conditions, “PTSD [Post Traumatic Stress Disorder], Lower back injury, neck injury, stress, anxiety”[23]. In addition, evidence was submitted in relation to the Applicant being diagnosed with ‘Alcohol use disorder’[24] and a brain disorder. [Tribunal insertions for clarity]

    [22]    Exhibit 1, T36, page 254.

    [23]    Exhibit 1, T36, page 279.

    [24]    Exhibit 1, T1, page 15.

34. The Tribunal notes the first reference to alcohol use disorder was from Dr John Chalk, Psychiatrist (‘Dr Chalk’), in a letter of 28 September 2012 as part of court proceedings regarding insurance claims following the Applicant’s first car accident. In this letter, Dr Chalk further updated the District Court following his original report of 24 August 2012 regarding a clinical assessment on 21 August 2012 that[25]:

    “… I apologise for not replying earlier but this lady’s carbohydrate deficient transferrin was quite abnormal. She describes a history of essentially little in the way of alcohol consumption but these results at a level of 7.8% is high and suggestive of probably excessive alcohol intake. I contacted QML and asked them to repeat the results. They did and the elevated result was confirmed… Those results would not be inconsistent with a putative history of more alcohol consumption than she admits.”

    [25]    Exhibit 1, T7, page 154.

35. The second reference in the submitted materials to the Tribunal is contained in a Verification of Medical conditions(s) form of 19 September 2019, post-dating the Qualification Period for this Application. In this form, Dr Braj Raj Pande, General Practitioner, diagnosed the Applicant with “Alcohol use disorder”[26].

    [26]    Exhibit 1, T1, page 15.

36. Due to the lack of additional evidence regarding the Applicant’s alcohol dependency prior to or during the Qualification Period for this Application, with reference to the requirements set out in Table 6 - Functioning related to Alcohol, Drug and Other Substance Use of the Determination, the Tribunal is unable to consider this impairment as part of the Application[27].

    [27]    The Determination, page 28.

37. The Tribunal notes evidence was submitted postdating the Qualification Period in relation to a diagnosis regarding the Applicant’s brain condition. An MRI undertaken on                18 February 2019 by Dr H Carim, Radiologist, stated in their assessment of the Applicant’s MRI, “1. There is global age inappropriate atrophy. The aetiology of this global atrophy is uncertain. Neurology review is required here. 2. No evidence of previous trauma and no evidence of acute haemorrhage or infarction”[28].

    [28]    Exhibit 1, T45, page 414.

38. Further submitted evidence postdating the Qualification Period includes a letter of                23 August 2019 from the TPCH Specialists Clinic at The Prince Charles Hospital, notifying the Applicant that their referral from Dr P Sharma, the Applicant’s treating General Practitioner (‘Dr Sharma’), had been received regarding an appointment with the Neurology Clinic[29]. The letter went on to advise the Applicant that they were a classified as a Category 3 on the waitlist, and may be expedited to another hospital should an appointment become available.

    [29]    Exhibit 1, T45, page 437.

39. As the evidence before the Tribunal relating to the Applicant’s brain condition postdates the Qualification Period for the Application, the Tribunal is unable to consider this impairment as part of this Application.

40. The Tribunal is satisfied after review of the evidence before it, that the Applicant suffered impairments during the Qualification Period pursuant to s94(1)(a) of the Act, a point which has been accepted by the Respondent[30]. The Tribunal finds the following impairments relevant to this Application:

    (a)Spinal condition; and

    (b)Mental health condition.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

    [30]    Exhibit 2, page 6, paragraph 37.

41. The Tribunal will consider each impairment identified in the above paragraphs of this Decision in accordance with s94(1)(b) of the Act, in particular whether they meet the relevant provisions contained within the Determination.

    (a) Spinal condition

42. Evidence submitted to the Tribunal confirms that the Applicant was involved in two separate car accidents on 25 July 2011, and 1 March 2012[31]. Following this, the Applicant reported a range of sustained injuries. A number of medical reports were submitted to the Tribunal in relation to subsequent legal proceedings and a Worker’s Compensation claim by the Applicant. From this, the Tribunal notes the following submitted evidence in relation to the Applicant’s spinal condition:

    (a)A report from Dr Scott F Campbell, Neurosurgeon (‘Dr Campbell’), of 3 August 2012, diagnosing the Applicant with, “Plain x-ray cervicothoracic spine, dated 25 August 2011: Reported as showing no fractures... 1. Chronic soft tissue musculo-ligamentous injury to the cervical spine. 2. Chronic soft tissue musculo-ligamentous injury to the lumbar spine”. Dr Campbell then went on to give a prognosis of the Applicant’s condition, “At 13 months since the onset of symptoms [the Applicant’s] condition has reached maximum medical improvement. It is unlikely there will be any significant alteration of her symptoms in the future”[32].

    (b)A medical report of Dr Paul Pincus, Orthopaedic Surgeon (‘Dr Pincus’), an Independent Medical Examiner, of 24 October 2012, stated in relation to the Applicant:

    “Her entire spine was examined. There is not visible deformity. There is no tenderness. There is no muscle spasm. Neurological examination of the upper and lower limbs was within normal limits. She demonstrated a full symmetrical range of movement in the cervical, thoracic and lumbar sacral spine without any restriction or apparent discomfort. She was able to heel walk and toe walk… I am of the opinion that the claimant is at maximum medical improvement… In my opinion the claimant is not a candidate for treatment for any musculo skeletal injury. This young lady has unfortunately been in four motor vehicle accidents at only 32 years of age and understandably is anxious regarding driving. She likely requires psychological help... The injuries in the first accident necessitated a couple of days of work and then she returned to some sort of duties though was not employed at the end of her probation period. She is currently looking for work and is expecting to be able to return to work in the sort of office type duties that she has done in the past. I would not expect her to have any problems with doing this… I would expect her to be able to return to all of her activities of daily living”[33].

    [31]    Exhibit 1, T1, page 40.

    [32]    Exhibit 1, T4, page 129; refer also a further letter of 18 December 2012, Exhibit 1, T11, page 194 and 195.

    [33]    Exhibit 1, T9, pages 170 to 172.

1. The Tribunal refers to the following more recent evidence that was submitted in relation to the Applicant’s spinal condition:

   (a)A letter of 2 August 2016 from Dr Krishani R Perera, General Practitioner (‘Dr Perera’), stated in relation to an examination of the Applicant, “… on the 28/04/2016 with regard to her back pain and neck pain. As per her history Lower back pain since accident. tested and had physiotherapy by her previous GP noted cervical and lumbar involvement. some days she is good and some days it is bad. Examination, tender lower cervical region, tender upper lumbar region, normal neck and back movements. I have not investigated her as she has once tested also I havenot got any test results”[34].[sic]

   (b)A Job Capacity Assessment Report undertaken on 13 March 2018 by a Rehabilitation Counsellor, stating, “While it is recognised that claimant’s condition is fully diagnosed, treated and stabilised, objective evidence of the degree of the claimant’s impairment in the last 2 years was conflicting with past GP indicating ongoing functional impact and the current GP indicating no functional impact…In the absence of updated functional information an accurate rating could not be applied on the tables, Due to this, an impairment rating of 0 points was allocated”[35].

   (c)An Additional Medical Evidence for Disability Support Pension Record completed by a Rehabilitation Counsellor on 19 April 2018, which states in relation to the Applicant’s spinal condition, “Dr Cook stated in his opinion the claimant does not have any ongoing physical impairment, specifically in the nature of ‘musculoskeletal, orthopaedic or neurological’ (brain impairment) relating to the past motor vehicle accidents… Dr Cook reported the claimant has been a patient at the medical centre for the last 10 months”[36].

   (d)A Medical Certificate of 16 August 2018 by Dr Charles Hur, General Practitioner (‘Dr Hur’), stating, “Presents to me today seen for the first time todate at this clinic by me. I have read the history from the chart

   as per examination today -- 1.claims neck pain on over head activities, upon examination, she feels raising the arm above shooulder level causes neck pain. 2.able to move neck without moving her trunk –lateral rotation slight limited, able to 45 degrees.3.able to move objects on the desk -- claims easily fatigued 4. can remain seated for 10 min plus”[37]. [sic]

   (e)A Job Capacity Assessment Report undertaken on 30 October 2018 by a Rehabilitation Counsellor, stating, “Past JCA, 13/03/2018 notes: Nerurosurgeon, Dr Campbell (03/08/2012) two motor vehicle accidents in July 2011 and March 2012 resulting in physical and psychological injury and subsequent job loss as an executive assistant… The condition is considered fully diagnosed, treated and stabilised, however as there is contradictory medical information, therefore no impairment rating is able to be applied”[38].

   (f)A Medical Certificate of 30 October 2018 by Dr Ian Kwoh-Gain, General Practitioner (‘Dr Kwoh-Gain’), stating in relation to the Applicant, “… has no capacity to return to administrative work because of her physical and mental impairment. She sustained lower back and neck injury from 2 MVAs and mentally suffers depression, anxiety and PTSD”[39].

   [34]    Exhibit 1, T17, page 208.

   [35]    Exhibit 1, T31, page 241 and 244.

   [36]    Exhibit 1, T30, pages 237 and 238.

   [37]    Exhibit 1, T35, page 187.

   [38]  Exhibit 1, T1, page 60 and 61; and T40, page 295. The Tribunal notes the report was published on 28 December 2018, but the report relates to the assessment undertaken on 30 October 2018, consideration was given on this basis. Refer to Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (16 November 2011) [28]. 

   [39]    Exhibit 1, T38, page 290.

2. The Tribunal accepts that the Applicant suffered from an impairment relating to a spinal condition at the time of, and for some period following the Applicant’s motor vehicle accidents which occurred in 2011 and 2012. This is clearly evidenced in the opinions given by Dr Campbell and Dr Pincus in the submitted evidence relating to the Applicant’s legal proceedings following the motor vehicle accidents. These reports, however, are now more than seven years old.

3. The Tribunal notes that past submitted medical reports focus on the Applicant’s musculo‑skeletal injury to the cervical and lumbar spine, and that the Applicant is more recently seeking treatment for neck and lumbar pain.

4. The Tribunal notes the conflicting opinions from General Practitioners which have provided the Applicant with Medical Certificates. Dr Cook, who had seen the Applicant on 15 separate occasions during the period of 26 June 2017 to 12 September 2018[40], provided evidence that in his opinion the Applicant did not have any ongoing physical impairment, specifically in the nature of ‘musculoskeletal, orthopaedic or neurological’ (brain impairment) relating to the past motor vehicle accidents’[41].

   [40]    Exhibit 3, Medicare Report, pages 7 to 9.

   [41]    Exhibit T30, pages 237 and 238.

5. Whereas Dr Hur had only treated the Applicant on one occasion being 16 August 2018 (as indicated in the evidence in the above paragraphs)[42]. The Tribunal notes that Dr Perera, who had treated the Applicant in 2016, qualified their diagnosis, “I have not investigated her as she has once tested also I havenot got any test results”[43].[sic]

   [42]    Exhibit 3, Medicare Report, page 9.

   [43]    Exhibit 1, T17, page 208.

6. The Applicant gave oral evidence to the Tribunal that they were still able to perform overhead activities such as washing their hair[44].

   [44]    Transcript, page 9, line 25; and page 15, line 25.

7. The Tribunal notes that there is no medical evidence to confirm that the Applicant had received treatment for ongoing pain associated with their spinal condition. Further, there was no medical evidence submitted to support a more recent diagnosis of the Applicant’s claimed spinal condition in accordance with Table 4 – Spinal Condition of the Determination[45].

   [45]    The Determination, page 20.

8. The Tribunal finds the Applicant’s spinal condition was not fully diagnosed prior to or during the Qualification Period for this Application, the Tribunal, therefore, is unable to assign an Impairment Rating for the Applicant’s spinal condition.

   (b) Mental health condition

9. Table 5 – Mental Health Function of the Determination[46] expressly stipulates that the diagnosis of a mental health condition (or impairment) “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”. [emphasis added]

   [46]    The Determination, page 22.

10. Submitted evidence to the Tribunal from Dr Jan Parr, Clinical Psychologist, (‘Dr Parr’) of                 20 April 2018, confirms a diagnosis of depression, anxiety and stress, and PTSD[47]. The Tribunal is satisfied, based on submitted evidence, that the Applicant’s mental health condition was fully diagnosed prior to the Qualification Period of this Application.

    [47]    Exhibit 1, T32, page 250.

11. The Tribunal notes the following submitted evidence regarding the Applicant’s mental health condition:

    (a)A Medical Assessment Tribunal Decision in relation to a Worker’s Compensation claim following a car accident in March of 2012, stated in a finding on 13 February 2013 that the Applicant had, “Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood in partial remission”[48].

    (b)A General Practitioner Mental Health plan of 4 March 2016 stated that the Applicant was not on any medication, whilst detailing the extent of the Applicant’s mental health condition[49].

    (c)A Job Capacity Assessment Report undertaken on 13 March 2018 by a Rehabilitation Counsellor, stated, “Dr Morris recommended a low dose of antidepressant medication however, at assessment claimant stated that she does not wish to take psychotherapeutic medication…”[50].

    (d)Dr Parr’s letter of 20 April 2018, stating the Applicant, “… is currently attending psychology sessions and in the past has accessed medication and psychological treatment. I believe that [the Applicant] has undertaken reasonable treatment that is available for her condition. It is unlikely that any further reasonable treatment will result in a significant functional improvement within the next 2 years, as [the Applicant] condition is chronic”[51].

    (e)A Job Capacity Assessment Report undertaken on 30 October 2018 by a Rehabilitation Counsellor, stated, “The condition/s are assessed as permanent, they have been diagnosed by a clinical psychologist, however the customer has only engaged in a total of 8 (eight) psychological sessions since late 2017, with the most sessions, six (6) only over the last six months since April 2018. Furthermore, historical medical evidence of specialist medical reports for compensation have recommended psychiatrist review/intervention and pharmacotherapy treatment, however there is no corroborating medical evidence to indicate such e.g. psychiatrist review or a trial of pharmacotherapy to indicate whether there would be functional improvement in symptoms. The conditions are assessed as fully diagnosed, but no fully treated and stabilised under the Social Security Legislation”[52].

    [48]    Exhibit 1, T1, page 42.

    [49]    Exhibit 1, T13, page 202.

    [50]    Exhibit 1, T31, page 242.

    [51]    Exhibit 1, T32, page 250.

    [52]    Exhibit 1, T1, page 63.

12. The Tribunal notes that the Applicant’s Pharmaceutical Benefit Scheme (‘PBS’) records indicate that there has been no trial of antidepressant medication from the period of the submitted report, being 18 June 2012 to 4 November 2019[53]. The Tribunal notes that the submitted PBS records of the Applicant do not corroborate with the submitted evidence of Dr Parr in her letter of 20 April 2018, where Dr Parr stated that the Applicant had “accessed medication”, as referenced in the above paragraph of this Decision[54].

    [53]    Exhibit 3, Pharmaceutical Benefits Record, pages 1 and 2.

    [54]    Exhibit 1, T32, page 250.

13. The Tribunal notes a letter of 30 July 2019 (postdating the Qualification Period) from Dr Sharma stating that the Applicant was on 50 milligrams of ‘ZOLOFT Tablet (Sertraline (as hydrochloride))’, with a script issued for 30 July 2019[55]. The Tribunal notes that Zoloft is prescribed as an anti-depressant, and despite this having been prescribed to the Applicant, the PBS records of the Applicant indicate that this has not been dispensed[56].

    [55]    Exhibit 1, T1, page 43.

    [56]    Exhibit 3, Pharmaceutical Benefits Record, pages 1 and 2.

14. Further, the Tribunal was not presented with any compelling reason for the Applicant to have refused such treatment. The Tribunal notes the Social Security Guidelines in relation to Reasonable treatment & compelling reasons for not undertaking reasonable treatment, which state[57]:

    “The person's views (the subjective test) and all available information on treatment options, risks etc. (the objective test) must be considered by the assessor in such situations.

    If a person has not had reasonable treatment due to factors that are not of a compelling nature (e.g. lack of personal motivation that is not due to their medical condition), then their condition would not be considered permanent for DSP purposes, as it is not fully treated and stabilised. Consequently, the Tables must not be applied and the impairment rating must not be assigned.”

    [57]    Social Security Guide, Department of Social Services, version 1.265 (released 3 April 2020),

15. The Tribunal is of the view that pharmacological intervention under the treatment of a relevant specialist would be considered “reasonable treatment” consistent with s6(7) of the Determination[58] and the Applicant did not provide the Tribunal with any compelling reason to have refused such treatment. The Tribunal agrees with the Respondent’s contention that “there has been no objective consideration of the cost, availability, success rates, risks and potential functional improvement associated with the proposed low dose trial of antidepressant medication”[59].

    [58]    The Determination, pages 7 and 8.

    [59]    Exhibit 2, page 11, paragraph 52.

16. Therefore, the Tribunal finds that the Applicant had not undertaken reasonable treatment as prescribed in the Determination for their mental health condition prior to or during the Qualification Period for this Application.

17. The Tribunal finds that the Applicant’s mental health condition was not fully treated and not fully stabilised during the Qualification Period for this Application, in accordance with the Determination. Therefore, the Tribunal does not have authority to assign an Impairment Rating for the Applicant’s mental health condition.

18. The Tribunal notes that a letter of 8 July 2019 postdating the Qualification Period from the Applicant’s current treating Clinical Psychologist Ms Margaret McDonald, stated the following[60]:

    “Cognitively [the Applicant] cannot concentrate very well and often becomes confused. A recent MRI result indicated that [the Applicant] has extensive global atrophy present… which is inappropriate for this age group. [The Applicant] presents as a person who is highly distractible and finds it difficult to organise her life.

    This client needs Neuropsychological assessment but given the long wait in the public system and her inability to pay privately for this testing, it is difficult to determine the nature of her global atrophy. Consultations with a Neurologist can also take time to occur in the public system.

    There are several conditions which could apply to [the Applicant] and it appears that the cause of her global atrophy is related to her motor vehicle accidents. Further investigation is warranted but the MRI scan presents physical evidence of cognitive decline.”

    [60]  Exhibit 1, T1, pages 51 and 52.

19. The Tribunal is of the view that the recent diagnosis of the Applicant’s brain atrophy, further supports the Tribunal’s position that the Applicant’s mental health condition is not fully treated or fully stabilised. The Tribunal agrees with the Respondent’s contention that[61]:

    “The recent diagnosis of global atrophy suggests there may be an underlying cause of the Applicant’s mental health impairments and her mental health conditions could not be considered fully treated and stabilised until such a time that any possible brain function condition could be either ruled out or separately assessed under the Impairment Tables.”

    [61]    Exhibit 2, page 10, paragraph 47.

20. The Tribunal has found that none of the Applicant’s identified impairments can be assigned impairment ratings under s94(1)(b) of the Act.

21. As the Tribunal has found that none of the Applicant’s impairments can be assigned Impairment Ratings under s94(1)(b) of the Act, there is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.

    DECISION

22. The decision under review is affirmed.

    I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola

    ……………[SGD]….…………

    Associate

    Dated: 21 April 2020

    Date of hearing:  24 March 2020

    Applicant:  Ms Jenene Fabretto (via telephone)

    Solicitor for Respondent:       Mr Chris Murphy (via telephone)
      Services Australia

    “ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit

Number

Description

1

Section 37 T Documents, pages 1 to 515, received 24 October 2019.

2

Respondent’s Statement of Facts, Issues and Contentions, including Attachments A and B, pages 1 to 14, received 13 December 2019.

3

Respondent’s further submissions, Medicare Records (pages 1 to 13), and Pharmaceutical Benefits Scheme Records (pages 1 to 2), received 20 March 2020.

4

Applicant’s further submissions, Reports dated 8 July 2019, 29 July 2019, 23 September 2019, 30 September 2019 and 12 March 2020.