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

Fauvette and Secretary, Department of Social Services (Social services second review) [2017] AATA 2746 (15 December 2017)
Division:GENERAL DIVISION
File Number(s): 2016/4526
Re:Mark Fauvette
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Date:15 December 2017
Place:Sydney

The decision under review is affirmed.
.....................[sgd]...................................................
Professor R McCallum AO, Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Depression – Post Traumatic Stress Disorder (PTSD) – arthritis in right hand – arthritis in left knee – whether conditions fully diagnosed, treated and stabilised – whether impairments rated 20 points under the Impairment Tables – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s37
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Ulukut and Secretary, Department of Social Services [2014] AATA 399
REASONS FOR DECISION
Professor R McCallum AO, Member
15 December 2017
INTRODUCTION

The Applicant, Mr Mark Fauvette is aged in his forties.
In 1993 when he was a teenager, he was seriously injured in a motorcycle accident where his best friend died. His injuries necessitated a knee reconstruction.
Mr Fauvette currently lives with his parents.
Mr Fauvette lodged a claim for Disability Support Pension (DSP) on 16 November 2015.
On 4 February 2016, Mr Fauvette attended a face to face Job Capacity Assessment (JCA).
On 5 February 2016, the JCA assessor submitted a report.
The assessor held that Mr Fauvette’s conditions of depression and post-traumatic stress disorder (PTSD), and arthritis in relation to the right hand and left knee were fully diagnosed. However, none of these conditions were fully treated and stabilised.
The JCA report assessed Mr Fauvette’s future work capacity within two years with intervention as 13-29 hours per week.
On 5 February 2016, the Department of Human Services which is better known as Centrelink, refused Mr Fauvette’s claim for DSP on the basis that he did not have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).
Mr Fauvette Seeks Reviews
On 5 May 2016, Mr Fauvette sought review from an Authorised Review Officer (ARO), however, on 18 June 2016 the ARO affirmed the original decision.
Mr Fauvette sought review from the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT) which is known as an AAT first review (AAT1).
On 11 August 2016, the AAT1 held that Mr Fauvette’s depression and PTSD were fully diagnosed treated and stabilised. The AAT1 assessed this impairment as having a moderate effect on Mr Fauvette warranting 10 points under Table 5 of the Impairment Tables. Table 5 is titled “Mental Health Function”.
The AAT1 commented upon Mr Fauvette’s depression and PTSD as follows:
14Therefore, the Tribunal is satisfied that the condition is permanent for the purposes of social security law and so proceeded to assign an impairment rating under Table 5, which relates to mental health function. Taking into account the medical evidence and Mr Fauvette’s oral testimony I am satisfied that he is able to meet his self-care and independent living needs. He goes out alone infrequently and is not actively involved in social events. Mr Fauvette describes himself as a “family person”. He is able to travel alone to unfamiliar locations, such as going fishing or for a drive. He has difficulties in initiating and sustaining friendships, and is currently subject to two AVO’s and has no contact with his children. He finds it difficult to concentrate, but can follow complex instructions. Mr Fauvette does have difficulties in behaviour, planning and decision-making, and in particular has difficulties in managing his anger. It is also accepted that Mr Fauvette has often experienced interpersonal conflicts in his personal life and when working.
15Section 11 of the Determination states that if an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. On balance I was not persuaded that the adverse functional impact on activities can be described as severe and therefore assigned an impairment rating of 10 points from Table 5.
The AAT1 further held that Mr Fauvette’s arthritis in relation to the right hand and left knee was fully diagnosed, but was not fully treated and stabilised.
As Mr Fauvette‘s impairments did not attain a rating of 20 points under the Impairment Tables, the AAT1 affirmed the above decision.
On 24 August 2016, Mr Allan Anderson, a psychologist who has been treating Mr Fauvette, on behalf of Mr Fauvette, applied for review to the General Division of the AAT which is known as an AAT second review (AAT2).
THE RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are to be found in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
The criteria for DSP are set forth in section 94 of the SS Act. In Mr Fauvette’s circumstances section 94(1) relevantly provides:
(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;
…
Put simply, I must be satisfied, first, that Mr Fauvette has one or more physical, intellectual or psychiatric impairments. Second, that these impairments are rated at least 20 points under the Impairment Tables. Finally, I must be satisfied that Mr Fauvette has a continuing inability to work.
The phrase "continuing inability to work" is defined in subsection 94(2) of the SS Act. In Mr Fauvette’s circumstances, it relevantly provides as follows:
(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)...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.
…
“Work” is defined in subsection 94(5) as follows:
“Work” means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
These definitions are complex, but in essence, unless a person has a severe impairment, the person must have participated in a program of support.
Mr Fauvette has participated in a program of support and has complied with all of the requirements.
Finally, Mr Fauvette’s impairments must be sufficient to prevent him from doing any work independently of a program of support for 15 hours a week within the next 2 years.
Two other matters require explanation. They are the 13 week qualifying period and the application of the Impairment Tables.
THE 13 WEEK QUALIFYING PERIOD
Section 94 of the SS Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. It is not necessary to set out this clause, suffice to write the following. Clause 4(1) is worded in a complex manner, however, it sets out by implication a 13 week qualifying period for DSP. The effect of this provision is that I am required to determine Mr Fauvette’s eligibility for DSP in the 13 week period commencing on the day on which Mr Fauvette’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. Therefore, I must determine whether Mr Fauvette qualified for DSP between 16 November 2015 and 15 February 2016.
The date of the AAT2 hearing was 23 November 2017 which is more than 21 months after the end of the claim period.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, Member Breen said at [34]:
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 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 proffered 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.
In Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley said:
In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time”.
The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.
THE IMPAIRMENT TABLES
Section 94(1)(b) of the SS Act obliges me to decide whether the impairments of Mr Fauvette are worth 20 points under the Impairment Tables. This requires a few words of explanation.
In Ulukut and Secretary, Department of Social Services [2014] AATA 399 Senior Member Isenberg helpfully explains the operation of the Impairment Tables in the following words which I gratefully reproduce here. Senior Member Isenberg states:
The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
The Tables may only be applied after the person's medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Importantly, impairments can only be assigned ratings under the Impairment Tables when the medical condition is permanent within the meaning of the term in the Impairment Tables and the impairment resulting from the condition is likely to persist for more than two years. The Impairment Tables provide at subsection 6(4) that the condition is considered to be permanent if it has been fully diagnosed, treated, stabilised and is likely to persist for more than two years.
Subsection 6(5) of the Impairment Tables provides that when considering whether a condition is fully diagnosed and treated one must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.
Subsection 6(6) provides, in part, that a condition is fully stabilised where a 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 two years.
It is also important to appreciate that under subsection 10(5), if two or more conditions cause a common or combined impairment, then “a single rating should be assigned in relation to that common or combined impairment under a single Table”. However, subsection 10(6) goes on to provide that in assessing two or more conditions which cause a common or combined impairment, “it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once”.
Subsection 11(1)(c) of the Impairment Tables provides that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.”
Finally, where a person claims that she or he is suffering from depression etc., the introduction to Table 5 of the Impairment Tables, which is titled “Mental Health Function”, provides:
The diagnosis of the condition 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).
THE MEDICAL REPORTS
The Tribunal has before it a number of medical reports. Some are contained in the documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (Cth) which are colloquially known as the ‘T documents’. Other medical reports are set out in the supplementary documents.
Dr T J Amor who is a Psychiatrist, wrote two letters detailing his medical assessment of Mr Fauvette.
Dr Amor’s letter dated 3 May 2016, reads in part as follows:
Mr Fauvette was seen for the first time by me on Thursday 28^th April. His main reason for seeking the appointment was to clarify his diagnosis and for me to give him an opinion regarding his application for the DSP. Most of my notes will be kept on file here, but I would agree that Mr Fauvette does fulfil the diagnostic criteria for PTSD, in that he was involved in a bad motorcycle accident in 1991, when he was 17. He was the pillion passenger on a bike driven by his best friend. His friend was killed when they hit a truck. Mark was badly injured and spent one month in hospital with severe injuries to his left leg. He was not knocked out and says that he remained conscious throughout the accident and has vivid memories of the bike exploding and catching on fire on impact. Since that date he has had ongoing traumatic memories and nightmares of the accident. Day time memories can especially be triggered by being in close proximity to any fire. He also has withdrawn socially and knows that he is constantly on alert for signs of danger. He has difficulty in getting off to sleep and is often woken in the middle of the night by his dreams. He definitely experiences a feeling of being cut off and detached from family and friends.
The only cluster of symptoms of PTSD that he doesn't really identify with is avoiding any reminder of the event in that he has been able to get back to riding a motorcycle and doesn't experience any great problems in doing this.
These symptoms of PTSD are further complicated by what I would probably label as a rather antisocial personality disorder in that he has had a temper problem from childhood onwards, frequently getting into fights when he feels anybody is disrespecting him or looking down on him. This has tended to get worse after the accident and has caused further problems in his life, especially in retaining employment ever since.
As well as PTSD symptoms, he has features of both depression and anxiety linked to numerous deaths he has experienced in the years after his motorcycle accident.
…
It is further complicated by the fact that he has used Cannabis intermittently over many years and smoked methamphetamine for four years up until eight months ago. When using the Ice, he identifies (in retrospect) that he became angrier still and he is now the subject of two AVO's, taken out by his ex-wife and his subsequent partner for threats and alleged aggression to both of them over the last year or so.
Since the accident he has had great difficulty in holding down any kind of employment for any length of time as he always tends to fall out with work colleagues and is either dismissed for fighting or walks out of the job having become angry with someone at work for criticising his way of doing things.
He is now living with his parents' in the Forster area and is receiving Newstart. He would like to be able to return to work as a Sheet Metal worker/Aluminium Welder but has so far not been able to do so.
He believes that treatment with Escitalopram (Lexapro) 20mg a day over the last eight months has helped him control his temper more and has somewhat lessened his anxiety and has helped him in giving up the Ice use. He has also benefited from psychological input and feels more in control of his temper and anxiety symptoms. However, despite these improvements, he has still not been able to contemplate a return to work and I believe from talking to him that it would be highly unlikely that he would be able to sustain employment at present.
My suggestion is that he should continue to take the Lexapro 20mg indefinitely and also continue to see a Psychologist to work on cognitive behavioural lines to address the symptoms of PTSD and also his anger/aggression. However, realistically, given the length of time that he has had his problems (25 years) it is unrealistic to expect any major change in him over the next two years. For that reason, although there may be a hope of him being able to return to work at some point in the future, I would currently support his application for DSP. He will need much support from an employment agency in order to be able to return to the work force at some point in the future.

In a subsequent letter dated 27 September 2016, Dr Amor wrote in part as follows:
I saw Mr Fauvette again on Monday 26^th September at his request.
Nothing seems to have changed since I last saw him in April (see my letter dated 3^rd May). It seems that the Lexapro is working to some extent, but it still leaves him with the functional deficits that I outlined in that letter. My belief is that he still fulfils the criteria for PTSD and that he would fulfil the criteria to score 10 on … Table 5 of the Social Security Tables for the Assessment of Work Related Impairment 2011.
I have advised him to come back to see you and pursue further physical assessment to see whether his orthopaedic problems would be assessed as sufficient to gain the other 10 points required for DSP.
Mr Allan G Anderson, who is a psychologist and who treated Mr Fauvette, wrote a series of reports which are before the Tribunal.
In his letter dated 7 September 2017, Mr Anderson assessed Mr Fauvette under Table 5 of the Impairment Tables.
Mr Anderson wrote in part as follows:
I need to say that I am well aware of Table 5. I frequently in my own practice use the Psychiatric Impairment Rating Scale (PIRS) and I can see that Table 5 is closely related to the above mentioned scale for which I am very familiar.
Mr Mark Fauvette in terms of 1a: "Self-care and Independent living” — at that time was definitely in need of close support from family members, namely his two parents. Mr Fauvette lived with them, having come to the Forster area specifically to be with his parents and to be looked after. He did not have much of a degree of self-care or independent living. At that time, (things have not changed dramatically even since) he could hardly venture out from the family's rural property out of Forster. He did come to meetings with me but this was very difficult for him.
In terms of self-care other that driving it was my understanding at the time that he had meals prepared by his mother, that he had his laundry and other aspects of cleanliness dealt with by his parents. As far as I can remember back then he was not able to clean the house or his room.
I believe as far as I am aware that he did shower himself and change clothes. However I would have been under the belief that such activity was also prompted by parents.
1b: "social/recreational activities and travel' — the answer to this is quite straight forward and within my limitations of my memory. Mark Fauvette did not socialise at that time. He did not have any recreational activates outside the home. He tried to 'potter" around his parent's property and tried to assist in simple maintenance tasks. However he was not capable of making decisions and the tasks that he did complete would be categorized as being quite simple in nature. Mark Fauvette certainly did not go out of his way to attend social or recreational events without support.
In terms of being able to travel to and from unfamiliar environments I would say again from the knowledge that I had of Mr Fauvette at the time, that he did not undertake any such travel.
1c: "interpersonal relationships"— it was absolutely clear to me at the time i.e. 2015/2016 as it is today that Mark Fauvette had great difficulty in forming relationships and sustaining such. As far as I was aware then and as far as I am aware today no such relationships have been entered into.
1d: "Concentration and task completion"— I would say that Mark Fauvette, because of the possible cognitive damage that he had incurred in accidents had very poor concentration. Such concentration as today is still very limited. As stated above he could only perform simple tasks that did not need a great deal of concentration.
He was certainly not able, again reading from Table 5 to enter into a training or educational course or qualification.
1e; "Behaviour, planning and decision making"— At the time in Question, again as it is today Mark Fauvette had great difficulty in making decisions and had very poor ability to plan ahead in any way. He had almost a complete block when it came to making decisions about anything more complex than driving into town to an appointment with a treating professional.
1f: Working/training capacity"— I saw Mr Fauvette at the time as I still do today as being unable to return to the workforce in any capacity he has very limited concentration, very short attention span, he has physical issues which include moderate to severe pain, and he generally speaking could not adhere to a work program of any kind.
So in all of the above I would rate Mr Fauvette as being in the moderate to severe category of the rating scale.
…
Dr Sandra Armstrong wrote a report for the Health Professional Advisory Unit. Dr Armstrong did not meet with Mr Fauvette, however, she did review the medical evidence.
Dr Armstrong wrote in part as follows:
The 27/9/16 letter by Dr Amor indicates that Mr Fauvette would fulfil the criteria for 10 points on table 5, although he does not elaborate further.
However in our 27/7/17 phone conversation Dr Amor told me that he was familiar with the impairment tables and elaborated on his functional deficits in relation to the table 5 descriptors. I disagree with the 20 point rating assigned in a 27/4/17 JCA, as the assessor did not have the benefit of speaking to Dr Amor. I agree with the 11/8/16 AAT1 decision and the 27/9/16 letter by Dr Amor that the appropriate impairment rating on table 5, as of the relevant period is 10 points, as I consider descriptors a, b, d and f are met at this level, descriptor c is met at the severe level and the impact in the area of descriptor e lies between the moderate and severe levels, as follows:
…
Dr Armstrong details her assessment of moderate, however, for the purposes of this decision it is not necessary to reproduce these comments.
THE HEARING
Mr Mark Fauvette attended the hearing by telephone.
Mr Fauvette gave evidence by affirmation over the telephone. I find that Mr Fauvette did his best to assist the Tribunal.
Mr Fauvette recounted that he had come to live with his parents about two years ago.
Mr Fauvette said that he has no difficulties showering and shaving etc. Mr Fauvette said that his Mum usually cooks the meals, but that he sometimes cooks.
Mr Fauvette said that his Mum does the laundry, but that he has taken the clothes off the line and he can do his own washing.
Mr Fauvette said that he can go to job agencies by himself. He also said that he can ride his dirt bike, and that he last rode it about six months ago. He said that he can drive a car, certainly for one hour.
Mr Fauvette said that he stopped taking drugs in September 2016, and that he no longer drinks alcohol. He has a mobile phone number and he can look up information online. He has an email address and he is on Facebook.
Mr Fauvette says that he doesn’t like many people.
In relation to his left knee, Mr Fauvette said that he has had pain in the knee since the 1993 motorcycle accident.
In relation to his right hand, Mr Fauvette said that he lost the tips of a couple of his fingers. He has trouble bending some of the fingers, and can only do so half way down. However, Mr Fauvette said that he can weld with his right hand and can use a computer.
Mr Fauvette said that his dream goal is to have his own mobile welding business and work for himself. He said that although he dropped out of high school, about ten years ago he qualified as a tradesperson in the sheet metal field.
Mr Fauvette said that he last worked fulltime in 2012.
Mr Fauvette said that he now has good relations with his two older children. They visited him during a recent school holiday and they are coming to stay at Christmas.
In cross-examination Mr Fauvette was taken to a letter dated 4 October 2016 from Dr Hyde Page who is an orthopaedic specialist. After examining Mr Fauvette’s left knee, Dr Hyde Page recommended that Mr Fauvette should undertake hydrotherapy and an exercise program to strengthen his left knee.
Mr Fauvette said that he had not undertaken hydrotherapy or a gymnasium-based exercise program.
Mr Allan Anderson, who it will be recalled is a psychologist, gave evidence by affirmation over the telephone.
In his evidence, Mr Anderson said that he had seen Mr Fauvette on several occasions before 24 October 2015. However, he could not point to any written records of prior occasions detailing visits by Mr Fauvette. Mr Anderson was only able to produce two pages of notes on Mr Fauvette’s conditions dated 24 October 2015. Mr Anderson said that these may be the only notes which he has taken about Mr Fauvette.
Given the lack of clinical notes, I do not give much weight to Mr Anderson’s evidence about Mr Fauvette’s psychological condition.
Mr Anderson was taken to his letter dated 7 September 2017 which is quoted in part above. In that letter, Mr Anderson said that Mr Fauvette was “… in the moderate to severe category of the rating scale.” Mr Anderson was asked whether Mr Fauvette fulfilled the criteria for moderate or severe under Table 5 of the Impairment Tables. Mr Anderson said that Mr Fauvette fulfilled the moderate criteria under Table 5.
CONSIDERATION
At the hearing, The Respondent accepted that Mr Fauvette suffered from the impairments of depression and PTSD, and also from the impairments of arthritis in his left knee and right hand.
Having regard to the evidence before me, I find that Mr Fauvette suffered from depression and PTSD, and arthritis of the left knee and right hand during the claim period.
Therefore, the first issue which I am required to decide is whether any of these impairments were fully diagnosed, treated and stabilised during the claim period. If so, I am required to assess them under the Impairment Tables.
The second issue which I am required to decide is whether Mr Fauvette has a continuing inability to work within the meaning of section 94(1(c)(I) and attendant provisions of the SS Act.
Arthritis of the Left Knee and Right Hand
There is very little evidence before the Tribunal on the treatment of arthritis in the left knee and right hand either during or subsequent to the claim period. Mr Fauvette did visit Dr Murray Hyde Page in late September or in early October 2016. It will be recalled that Dr Murray Hyde Page is an orthopaedic specialist whose letter is dated 4 October 2016, that is more than seven months after the end of the claim period.
Dr Hyde Page recommended hydrotherapy and an exercise program. In his evidence, Mr Fauvette said that he did not undertake hydrotherapy or an exercise program. In other words, Mr Fauvette did not undertake the recommended treatment for his left knee.
In these circumstances, I find that the arthritis in the left knee was fully diagnosed, but that it was not fully treated and stabilised during the claim period.
There is very little evidence before the Tribunal about the arthritis or impairment of Mr Fauvette’s right hand. There was no evidence before the Tribunal of Mr Fauvette visiting a medical specialist either before, during or after the claim period.
In his evidence before the Tribunal, Mr Fauvette said that he can weld with his right hand and use a computer.
Given the limited evidence before the Tribunal, I find that Mr Fauvette’s arthritis or impairment of the right hand was not fully diagnosed, treated and stabilised during the claim period.
Depression and PTSD
Having regard to the medical evidence before me, I find that Mr Fauvette’s depression and PTSD were fully treated and stabilised during the claim period. This means that I am required to assess these impairments under Table 5 of the Impairment Tables.
It will be recalled that Table 5 is titled “Mental Health Function”. It contains six descriptors from (a) to (f). There are specific examples under each descriptor for mild (5 points), moderate (10 points) and severe (20 points). I am required to decide whether or not the mental impairments of Mr Fauvette give him mild, moderate or severe functional impact on activities giving him “… difficulties with most of the following”. Thus, I must determine whether Mr Fauvette has mild, moderate or severe difficulties with at least four of the six descriptors.
The medical evidence before the Tribunal is unanimous. Dr T J Amor who it will be recalled is Mr Fauvette’s treating psychiatrist, assesses him as moderate under Table 5. I give great weight to his evidence.
Dr Sandra Armstrong also assesses Mr Fauvette as moderate under Table 5. Although Dr Armstrong has not treated Mr Fauvette, I give weight to her medical evidence.
In his evidence, Mr Anderson said that he also assesses Mr Fauvette as moderate under Table 5.
I shall now turn to the six descriptors:
(a)Self-care and independent living
Mr Fauvette now lives with his parents. He does much of his own self-care. Having regard to the medical evidence, I find that he would have difficulties with self-care if he lived on his own. I assess this descriptor as moderate.
(b)Social/recreational activities and travel
Although Mr Fauvette does travel to job interviews by himself, again guided by the medical evidence he does have some difficulties with social and recreational activities.
Not without some hesitation, I assess this descriptor as moderate.
(c)Interpersonal relationships
I am clearly of the view that Mr Fauvette does have severe difficulties with personal relationships. He has very few friends, he said in his evidence that he doesn’t like most people, and he has had anger management problems. Accordingly, I assess this descriptor as severe.
(d)Concentration and task completion
Again, I am guided by the medical evidence. It is clear that Mr Fauvette does have some difficulties in concentrating over lengthy periods. However, he can use a computer, can look up information and is on Facebook. I am of the view that this difficulty is between mild and moderate. Therefore pursuant to section 11(1)(c) of the Impairment Tables, I assess this descriptor as mild.
(e)Behaviour, planning and decision-making
Having regard to the medical evidence, Mr Fauvette does have some behavioural difficulties which impact on his ability to plan. I assess this descriptor as moderate.
(f)Work/training capacity
Not without some hesitation, and having regard to the medical evidence, I find that Mr Fauvette does have difficulties with work and planning. I assess this descriptor as moderate.
Therefore, as only one descriptor is mild (d), as four descriptors are moderate (a) (b) (e) and (f), and as one descriptor is severe (c), Mr Fauvette has a moderate rating, giving him 10 points under Table 5 of the Impairment Tables.
FINDINGS
I find that as Mr Fauvette’s impairments are only rated at 10 points under the Impairment Tables, Mr Fauvette does not fulfil the criteria specified in section 94(1)(b) of the SS Act and does not qualify for DSP.
Therefore, it is not necessary for me to determine whether Mr Fauvette has a continuing inability to work pursuant to section 94(1(C)(I) and attendant provisions of the SS Act.
DECISION
The decision of the AAT1 dated 11 August 2016 is affirmed.

I certify that the preceding 84 (eighty -four) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member

......................[sgd]..................................................
Associate
Dated: 15 December 2017

Date(s) of hearing: 23 November 2017

Applicant: By phone

Solicitors for the Respondent: Dr S Thompson and Mr J Kim, Department of Human Services

[2017] AATA 2746

15 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date(s) of hearing:	23 November 2017
Applicant:	By phone
Solicitors for the Respondent:	Dr S Thompson and Mr J Kim, Department of Human Services