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

Fern and Secretary, Department of Social Services (Social services second review) [2019] AATA 1773 (11 July 2019)
Division:                  GENERAL DIVISION
File Number:2017/5892
Re:Vicki Fern
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:11 July 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[SGD]............................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
11 July 2019
INTRODUCTION

On 15 July 2016, Ms Vicki Fern (the Applicant) lodged a claim for disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T26, pages 103-133, DSP claim form.
The claim was rejected on 10 August 2016,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 11 April 2017.[3]
[2] Exhibit 1, T Documents, T30, pages 147-148, Centrelink Notice: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T33, pages 152-158, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on

23 August 2017.[4]
[4] Exhibit 1, T Documents, T2, pages 5-11, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 29 September 2017.[5]
[5] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 16 May 2018, a Hearing was held for this application. At the Hearing, the Applicant was self-represented, appeared by telephone and gave evidence under affirmation.
On 2 May 2019, Executive Deputy President Dr P McDermott RFD reconstituted the Tribunal[6] so that the matter would be determined by Member Mitchell. On 22 May 2019, a Directions Hearing was held. The parties did not wish to make further submissions.
[6] Section 19D of the Administrative Appeals Tribunal Act 1975 (Cth).
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of her claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s claim for DSP form[7] she lists the following disabilities, illnesses or injuries:[8]
[7] Exhibit 1, T Documents, T26, pages 103-133, DSP claim form.
[8] Exhibit 1, T Documents, T26, page 129, DSP claim form.
-Psychosis
-Major Depression and Anxiety
-Fibromyalgia
-Disc Protrusion C6-7 Spine
-Chronic Otitis Externa/Media
-Lesion Frontal Lobe Brain
-Osteo Arthritis Knees, (R) Hip
-Facet Joint Dysfunction Lumbar Spine
-Hypertension
-Hyperlipidaemia [sic]
-Hiatus Hernia
-Past History Melanoma
-Tendon Tear (L) Shoulder
On 8 August 2016, the Applicant attended a face to face Job Capacity Assessment (JCA) with an Assessor, whose professional discipline is listed as ‘Registered Nurse’. The Assessor issued a JCA report with contributions from two additional Assessors whose professional disciples are listed as ‘Physiotherapist’ and ‘Registered Psychologist’. On the basis of the available medical evidence and the interview with the Applicant the Assessors made the following recommendations: [9]
[9] Exhibit 1, T Documents, T29, pages 137-146, JCA report.
-The Applicant’s chronic paranoid schizophrenia was fully diagnosed, fully treated and fully stabilised and caused a mild impairment rating 5 points under Table 5 of the Impairment Tables;[10]
[10] Exhibit 1, T Documents, T29, page 143, JCA report.
-The Applicant’s depression and anxiety was fully diagnosed but not fully treated or fully stabilised as the condition is currently exacerbated due to very recent loss and grief;[11]
[11] Exhibit 1, T Documents, T29, page 138, JCA report.
-The Applicant’s cervical and lumbo-sacral spondylosis/chronic pain was fully diagnosed but not fully treated as the Applicant had not undertaken all reasonable and available treatment including an attendance with a specialist;[12]
-The Applicant’s pain and infection in both ears was considered a temporary condition and likely to show significant improvement;[13]
-The Applicant’s keratosis and skin tumours had minimal functional impact on the Applicant’s day to day functioning;[14]
-The Applicant’s bilateral knee degeneration was fully diagnosed but not fully treated as the Applicant had not yet undertaken all reasonable and available treatment including an attendance with a specialist;[15]
-The Applicant’s morbid obesity was fully diagnosed but not fully treated as the Applicant had not yet undertaken all reasonable and available treatment including an attendance with a specialist;[16]
-The Applicant’s Fibromyalgia was fully diagnosed but not fully treated as the Applicant had not yet undertaken all reasonable and available treatment including an attendance with a specialist;[17]
-The Applicant’s left shoulder tendinopathy and supraspinatus tendon tear was fully diagnosed but not fully treated as the Applicant had not yet undertaken reasonable and available treatment including an attendance with a specialist;[18]
-The Applicant’s hypertension was fully diagnosed but not fully treated as the Applicant had not yet undertaken all reasonable and available treatment including an attendance with a specialist;[19]
-The Applicant’s chronic sinusitis was considered a temporary condition and likely to show significant improvement;[20]
-The Applicant had a capacity to work 15-22 hours per week within 2 years with intervention.[21]
[12] Exhibit 1, T Documents, T29, page 139, JCA report.
[13] Exhibit 1, T Documents, T29, page 139, JCA report.
[14] Exhibit 1, T Documents, T29, page 140, JCA report.
[15] Exhibit 1, T Documents, T29, page 140, JCA report.
[16] Exhibit 1, T Documents, T29, page 141, JCA report.
[17] Exhibit 1, T Documents, T29, page 141, JCA report.
[18] Exhibit 1, T Documents, T29, page 141, JCA report.
[19] Exhibit 1, T Documents, T29, page 142, JCA report.
[20] Exhibit 1, T Documents, T29, page 142, JCA report.
[21] Exhibit 1, T Documents, T29, page 144, JCA report.
A decision was made to reject the Applicant’s claim for DSP on 10 August 2016, on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[22]
[22] Exhibit 1, T Documents, T30, pages 147-148, Centrelink Notice: Rejection of DSP claim.
The decision to reject the Applicant’s claim for DSP was confirmed on 29 August 2016 after considering further medical evidence provided by the Applicant in support of her application for review.[23]
[23] Exhibit 1, T Documents, T31, pages 149-150, Centrelink Notice: Rejection of DSP claim.
The Applicant sought review of the decision.
On 11 April 2017, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[24]
·You have the following permanent conditions: schizophrenia and major depression and spinal spondylosis.
·Your conditions of fibromyalgia, recurrent ear infections, bilateral knee degeneration, morbid obesity, left shoulder tendinopathy and supraspinatus tendon tear, hypertension, chronic sinusitis, keratosis and skin tumours are not accepted as being permanent as they have not been fully treated and stabilised.
·Your total impairment rating is 5 under the Impairment Tables.
·You do not have an impairment rating of 20 points or more.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
[24] Exhibit 1, T Documents, T33, page 153, Authorised Review Officer Decision and Notes.
On 21 April 2017, the Applicant sought review of the DSP refusal decision by the SSCSD.[25] On the 23 August 2017, the SSCSD affirmed the decision under review.[26]
[25] Exhibit 1, T Documents, T34, pages 159-160, Referral to Social Services and Child Support Division.
[26] Exhibit 1, T Documents, T2, pages 5-11, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[27]
2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[28] and
3.Does the Applicant have a continuing inability to work?[29]
[27] Section 94(1)(a) of the Act.
[28] Section 94(1)(b) of the Act.
[29] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[30] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[31] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[32]
[30] Section 6(1) of the Determination.
[31] Section 6(2) of the Determination.
[32] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[33]
[33] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[34]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[34] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and, whether treatment is continuing or planned in the next two years.[35]
[35] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[36]
(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.
[36] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[37]
[37] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; then identify the correct impairment rating.[38] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[39] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[40]
[38] Section 10 of the Determination.
[39] Sections 10(3) and (4) of the Determination.
[40] Sections 10(5) and (6) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[41]
[41] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[42]
[42] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[43]
[43] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 15 July 2016, being the date the Applicant lodged her claim for DSP, and ending 13 weeks later on 14 October 2016. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[44] The Respondent considers the Applicant’s impairments include mental health,[45] spine,[46] ear infection,[47] keratosis and skin tumours,[48] knee condition,[49] fibromyalgia [50] and shoulder[51] conditions.
[44] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 6, paragraph 29.
[45] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 7-9, paragraphs 31-36.
[46] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 9-10, paragraphs 37-39.
[47] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 10, paragraphs 40-42.
[48] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 10-11, paragraphs 43-45.
[49] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 11, paragraphs 46-48.
[50] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 11-12, paragraphs 49-51.
[51] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 12, paragraphs 52-54.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Directions Hearing on 22 May 2019, the Applicant advised the Tribunal that she had made a subsequent claim for DSP which had been granted.
The circumstances surrounding the subsequent granting of DSP by the Respondent to the Applicant is not before the Tribunal.
The Tribunal has before it in this matter:
-Exhibit 1 – section 37 T Documents (pages 1-184) and section 38AA Supplementary T Documents (pages 1-362)
-Exhibit 2 – Secretary’s Statement of Issues, Facts & Contentions dated 14 March 2018 (including attachments)
-Exhibit 3 – Letter from the Applicant dated 30 December 2017 and attached Report of Dr Braganza dated 3 August 2016
-Exhibit 4 – Letter from the Applicant dated 20 January 2018 and attached report of Dr Braganza dated 14 December 2017
-Respondent’s written submissions dated 13 June 2018
-Applicant’s written submissions dated 25 July 2018
-Transcript of Proceedings – Hearing by telephone conducted on 16 May 2018
At the Hearing the Applicant told the Tribunal that she really only wanted to pursue her claim in relation to her mental health and ear pain conditions.[52] The Applicant indicated she understood that the other claimed conditions were not fully treated and fully stabilised at the Relevant Period.[53] This concession is consistent with the contentions of the Respondent.[54] Consequently I find that the Applicant’s spine, keratosis and skin tumours, knee, fibromyalgia and shoulder conditions (collectively ‘other conditions’) were not fully treated and fully stabilised during the Relevant Period. As such the Applicant’s other conditions could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign an impairment rating for the conditions.
[52] Transcript, page 7.
[53] Transcript, pages 7, 9 and 10.
[54] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 6-7, paragraph 30.

The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s mental health and ear pain conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[55] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[56] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[57] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[58]
[55] Section 6(3) of the Determination.
[56] Section 6(4) of the Determination.
[57] Section 6(2) of the Determination.
[58] Section 8(1) of the Determination.
Mental Health Conditions
There is a large amount of medical evidence before the Tribunal in relation to the Applicant’s Chronic Paranoid Schizophrenia and Chronic Major Depression Disorder associated with anxiety conditions. Further Dr M.C. Braganza, the Applicant’s treating Psychiatrist provided evidence at Hearing by telephone under affirmation.
Of relevance Dr Braganza also provided two letters in support of the Applicant’s claim for DSP dated 3 August 2016[59] and 14 December 2017.[60] It is noted that the letter dated 14 December 2017 has been provided well outside the Relevant Period and does not clearly refer to the Applicant’s functional impairments during the Relevant Period. As such the letter dated 14 December 2017 is of no assistance in the current matter.[61]
[59] Exhibit 1, T Documents, T28, pages 135-136, Letter from Dr Braganza.
[60] Exhibit 4, Letter from Dr Braganza dated 14 December 2017.
[61] Gallacher and Secretary, Department of Social Services [2015] FCA 1123.
In the letter dated 3 August 2016, which was provided during the Relevant Period, Dr Braganza confirmed the Applicant’s diagnosis and in relation to her Chronic Paranoid Schizophrenia he indicated the Applicant had been treated by different antipsychotics since 10 February 2005 to which she either did not respond well or they were to no avail. At that time, she had been taking Solian 100 mg a day which he opined ‘appears to be keeping her symptoms under control, but just. However whenever she is under stress, however trivial, the symptoms of her illness seems to be aggravated.’ In relation to the Applicant’s Major Depression Disorder associated with anxiety, Dr Braganza said the symptoms had been ongoing and she has been battling with them. He advised that the Applicant had been on different antidepressant medication but to no avail. Dr Braganza advised that the Applicant had undergone psychotherapy in addition to her medications and she continues to have bouts of depression and continues to be easily anxious.[62]
[62] Exhibit 1, T Documents, T28, pages 135-136, Letter from Dr Braganza.
In relation to the functional impacts of these conditions Dr Braganza in his letter of 3 August 2016 provided:[63]
Her conditions have, in my opinion severe impact on her activities in that she cannot socialize, she is socially isolated, she hardly has any friends to associate with, she has problems concentrating and has a tendency to move from task to task, she is slow in her movements and reactions due to her illnesses and the effect of the medications, she has difficulty making decisions and she has no capacity for any work or training due to her chronic illnesses.
[The Applicant] will be having ongoing treatment by me for an indefinite time.
[63] Exhibit 1, T Documents, T28, pages 135-136, Letter from Dr Braganza.
The Applicant contended at Hearing that she believes her depression and anxiety were fully treated and fully stabilised during the Relevant Period and she relies on the letters of Dr Braganza.[64]
[64] Transcript page 7.
At Hearing, on cross-examination the Applicant told the Tribunal:
·She was first diagnosed with schizophrenia when she was 26 years old;
·She was currently taking Solian 200 milligrams and was seeing Dr Braganza for psychotherapy;
·She agreed she had told the JCA in August 2016 that she was not experiencing any current symptoms from her schizophrenia, however did experience some fatigue because of the medication;
·She started to see Dr Braganza in 2003;
·She has had drug treatment for her depression and anxiety;
·Her father passed way in April 2016;
·She was her father’s primary carer since 1999 up until he passed away and during this period she was cooking meals, taking him to his appointments, doing his washing, helping with his medication;
·She had organised her Father’s funeral and was an executor of his will;
·She now lives alone in the family 3-bedroom home;
·She drives her car to the shops and appointments; and
·She does not read unless she has to but does watch television.[65]
[65] Transcript pages 15-19.
The Applicant also provided evidence in relation to her self-care, social activities and past work and training history.[66]
[66] Transcript pages 19-25.
At Hearing Dr Braganza provided quite in-depth evidence by telephone, under affirmation.[67]
[67] Transcripts pages 26-45.
As a result of Dr Braganza’s evidence the Respondent in their post hearing written submissions changed their contention in relation to the Applicant’s Chronic Paranoid Schizophrenia condition, subsequently contending that this condition was fully diagnosed however not fully treated and fully stabilised at the Relevant Period. The Respondent contended that the Applicant’s Chronic Major Depression Disorder with associated anxiety was fully diagnosed and fully treated, however was not fully stabilised at the Relevant Period.[68]
[68] Secretary’s Written Submissions dated 13 June 2018, pages 1-3.
The Respondent set out their contentions in their post hearing submissions as follows:[69]
[69] Secretary’s Written Submissions dated 13 June 2018, pages 1-3.
Permanency of the Applicant’s mental health conditions
5.The Secretary submits that the Applicant’s paranoid schizophrenia condition was not fully treated or fully stabilised during the qualification period. The Secretary understands Dr Braganza’s evidence at hearing to be:
(a)In relation to the Applicant’s schizophrenia, her symptoms are largely limited to somatic symptoms and these were under control ‘most of the time’.
(b)The Applicant has bene on various medication for her schizophrenia including Zyprexa, Mianserin and now on Solian 200mg. She was put on a higher dose of Solian on 19 April 2018.
(c)In October 2016, Dr Braganza increased the Applicant’s Solian to also treat the Applicant’s increase in anxiety and increase in delusions. Dr Braganza gave evidence that he had wanted the Applicant to be on 200mg of Solian, being the maximum dosage, but the Applicant only agreed to that dosage recently.
6.Although Dr Braganza gave evidence that the somatic symptoms of the Applicant’s schizophrenia were under control ‘most of the time’, the Secretary contends this condition was not fully treated or fully stabilised given Dr Braganza’s evidence that optimal pharmacological treatment of the Applicant’s schizophrenia was always 200mg of Solian, but that dosage only commenced in April 2018.
7.The Secretary contends that the Applicant’s major depressive disorder with anxiety was not fully stabilised. The Secretary understands Dr Braganza’s evidence at hearing to be:
(a)The Applicant had been on various medication for her depression including Effexor, Zoloft and currently Cymbalta. She has been on the same level of Cymbalta for some time.
(b)The Applicant is also treated with counselling, cognitive behavioural therapy and ‘reassurance’.
(c)There was an increase in sessions between June - July 2016 (3 times in 2 months) and this was because she was grieving for her father. Prior to her father’s passing, the Applicant saw Dr Braganza 1-2 times per year and the Applicant determined how often she would see Dr Braganza.
(d)The nature of major depressive disorder is that it worsens when there is a ‘bout of depression’ and symptoms become worse. Dr Braganza agreed that grief could trigger a ‘worsening’ of the Applicant’s symptoms and a period of worsening depended on the Applicant’s response to counselling and medication.
(e)Dr Braganza agreed that the passing of the Applicant’s father would have had an impact on the Applicant’s functioning. He said that he would expect functional improvement but could not confirm whether that functional improvement would be significant given that ‘only time will tell’.
8.The Secretary accepts that the Applicant had undertaken reasonable treatment for the condition and this is evident from her longstanding relationship with Dr Braganza and the consistency of Dr Braganza’s methods of treatment including counselling, medication and reassurance.
9.However, given the Applicant’s period of grief following her father’s passing which required an increase in counselling sessions, increase in pharmacological treatment (increase to Solian to treat the Applicant’s anxiety) and a worsening of the Applicant’s symptoms, the Secretary maintains that the Applicant’s major depressive disorder with anxiety was not fully stabilised during the qualification period. Dr Braganza agreed that the passing of her father would have had an impact on the Applicant’s functioning and grief could trigger a worsening of the depressive symptoms.
10.When determining whether a condition is fully stabilised, paragraph 6(a) of the Rules to the Impairment Tables provides that a condition can be fully stabilised if the person has undertaken reasonable treatment for the condition [and] sic 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.
11.When asked whether Dr Braganza considered that significant functional improvement could be expected following the worsening of symptoms following the passing of her father, Dr Braganza responded that ‘only time will tell’. Although the Secretary notes Dr Braganza’s candor, the Secretary contends that this Tribunal cannot be reasonably satisfied that it was unlikely that the further treatment the Applicant was undertaking soon after the passing of her father, would not result in significant functional improvement enabling Applicant to undertaken work in the next 2 years. This is particularly so given the evidence that the Applicant has a demonstrated work history, followed by a significant period of time (16 years) where she was the primary carer for her father. Her role as carer demonstrates an ability to function within the community despite the presence of her mental health conditions. The Secretary contends that the evidence suggests that further reasonable treatment is not unlikely to result in significant functional improvement to a level enabling her to work in the next 2 years.
The Respondent’s understanding of the evidence provided by Dr Braganza is consistent with that of the Tribunal’s having reviewed the transcript of the Hearing. There is no benefit to the Applicant in outlining Dr Braganza’s evidence in full in this decision.
Based on the evidence before the Tribunal I find that:
(a)The Applicant’s Chronic Paranoid Schizophrenia condition was fully diagnosed, however was not fully treated and fully stabilised at the Relevant Period as her pharmacological treatment was not at the optimal dosage and her condition was under control only most of the time throughout this period.
(b)The Applicant’s Chronic Major Depression Disorder associated with anxiety condition was fully diagnosed and fully treated, however was not fully stabilised at the Relevant Period as she was experiencing an exacerbation of her condition and I am not satisfied that at the Relevant Period further reasonable treatment would have been unlikely to result in significant functional improvement.
As I have found that the Applicant’s Chronic Paranoid Schizophrenia and Chronic Major Depression Disorder conditions were not fully treated and fully stabilised during the Relevant Period, the conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the conditions.
Ear Pain Conditions
The Respondent accepts that the Applicant’s severe pain and recurrent infection in both ears was fully diagnosed at the relevant period, however contends that it was not fully treated or fully stabilised. The Respondent relied on the following evidence:[70]
(a)The Applicant’s reporting to the JCA that she had not had specialist review or treatment for her ear condition since 2013 (T29, p139).
(b)The Applicant’s reporting to the ARO that her ears give her a lot of trouble and she has to use drops twice a day every day (T33, p154).
[70] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 10, paragraph 40.
At Hearing the Applicant told the Tribunal that she had a comedone removed from her right ear 7 years ago, but it had not settled and that during the Relevant Period Dr Allison was her treating ear, nose and throat specialist.[71]
[71] Transcript pages 7-9.
In her post hearing submissions, the Applicant provided:[72]
A)Between 21^st January 2013 and July 2016 I attended ENT specialist Dr Allison at least five times. Evidence of these appointments can be seen in my case notes under the Medicare Claims History or file number ‘A’. I do not have reports of Dr Allison to hand.
[72] Applicant’s Final Submissions dated 25 July 2018.
The only report of Dr Allison available to the Tribunal was dated 21 January 2013 and notes that further review and treatment was required.[73]
[73] Exhibit 1, T Documents, T19, page 96, Report from Dr Allison.
While I accept that the Applicant has an ear pain condition that was fully diagnosed at the Relevant Period, in the absence of evidence in relation to the treatment of this condition since 2013 and the Applicant’s evidence that her ear pain condition has not yet settled I find that the condition was not fully treated and fully stabilised at the Relevant Period.
As I have found that the Applicant’s ear pain condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Continuing inability to work
As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
It is important to keep in mind that the Tribunal is limited to considering the Applicant’s conditions during the Relevant Period. In this case the Relevant Period is between
15 July 2016 and 14 October 2016. This limitation relates to the diagnosis of the conditions, progress of treatment and how the conditions impacted upon the Applicant at that time. I accept that the Applicant’s conditions have stabilised since the date of her initial claim and that she has had ongoing treatment for her conditions, however the Tribunal is limited to looking at the situation during the Relevant Period.
I find that the Applicant’s Chronic Paranoid Schizophrenia condition was fully diagnosed, however was not fully treated and fully stabilised at the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s Chronic Major Depression Disorder associated with anxiety condition was fully diagnosed and fully treated however was not fully stabilised at the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s ear pain and other conditions were not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
I find that the Applicant’s impairments do not attract 20 points or more under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...........................[SGD]..............................
Associate
Dated: 11 July 2019

Date of hearing: 16 May 2018

Applicant: By phone

Advocate for the Respondent:
Ms Jacky Vetter

Solicitors for the Respondent: Department of Human Services

[2019] AATA 1773

11 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	16 May 2018
Applicant:	By phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Department of Human Services