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

Flenady and Secretary, Department of Social Services (Social services second review) [2019] AATA 2478 (9 August 2019)
Division:GENERAL DIVISION
File Number: 2018/5048
Re:Kim Flenady
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:9 August 2019
Place:Brisbane

The Tribunal affirms the decision under review.
.............................[SGD]..........................................
Member D K Grigg
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 – whether continuing inability to work – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Pignat and Secretary, Department of Social Services (Social Services Second Review) [2017] AATA 2745
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
REASONS FOR DECISION
Member D K Grigg
9 August 2019
INTRODUCTION

On 23 October 2017 Ms Kim Flenady (“Ms Flenady”) lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as:[1]
·pernicious anaemia
·diabetes – type II
·peripheral neuropathy
·degenerative spinal disease
·fibromyalgia
·adjustment disorder with depression and anxiety superimposed on a longer history of dysthymic disorder
·gallbladder disease
·welts and swollen body parts
[1] Exhibit 1, T Documents, T6, pages 74 – 103, Ms Flenady’s Claim for DSP dated 23 October 2017.
In November 2017 the Department of Human Services (“Centrelink”) obtained an assessment of Ms Flenady’s medical conditions from a psychologist in order to ascertain Ms Flenady’s eligibility for the DSP. The psychologist assessor recommended that:[2]
(a)in relation to the possible peripheral neuropathy resulting from pernicious anaemia, further assessment by a job capacity assessor was warranted;
(b)in relation to the fibromyalgia, there was only a recent diagnosis and therefore the condition could not be considered fully treated and stabilised;
(c)in relation to the back pain, the condition was not fully treated or stabilised as Ms Flenady had only recently been referred to a pain clinic; and
(d)in relation to her mental health conditions, further specialist treatment had been recommended including a medication review and therefore the condition could not be considered permanent.
[2] Exhibit 1, T Documents, T21, pages 188 – 190, Assessment Services Recommendation for Disability
Support Pension medical eligibility dated 22 November 2017.
In December 2017 a job capacity assessment (“JCA”) was undertaken pursuant to the psychologist recommendations. The JCA found that:[3]
(a)the spinal condition was not fully treated and stabilised as there was no evidence of specialist orthopaedic review or neurological review to address the nerve condition or disc bulge, and because Ms Flenady had only recently been referred for pain management;
(b)in relation to the pernicious anaemia:
(i)the condition was fully diagnosed, treated and stabilised given that Dr Danielle Andreussi had reported that her B12 levels were optimal and well-managed;
(ii)a zero point impairment rating was appropriate on the grounds that it was not clear whether this condition was resulting in the left-sided neuropathy and reported symptoms of fatigue were not consistent. The JCA considered that the symptoms experienced by Ms Flenady may also be related to other conditions such as her mental health and/or morbid obesity;
(c)in relation to the mental health condition, a clinical psychologist had reported that Ms Flenady would benefit from regular ongoing visits to the psychiatrist and clinical psychologist and may benefit from pharmacological assessment and interventions. As a result, the JCA considered that Ms Flenady’s mental health condition could not be considered fully treated or stabilised.
[3] Exhibit 1, T Documents, T22, pages 191 – 207, Job Capacity Assessment Report dated 24 January 2018.
Based on the psychologist’s and JCA’s assessments, Centrelink rejected Ms Flenady’s claim for DSP on 24 January 2018.[4]
[4] Exhibit 1, T Documents, T7, pages 104 – 105, Letter from Centrelink dated 24 January 2018.
Claim History
Ms Flenady sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that other than Ms Flenady’s pernicious anaemia and adjustment disorder, her other medical conditions were not fully diagnosed, treated and stabilised and that her permanent conditions only attracted a 5 point impairment rating and not the requisite 20 impairment points.[5]
[5] Exhibit 1, T Documents, T8, pages 106 – 115, Decision of Authorised Review Officer dated 7 June 2018.
Ms Flenady lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Ms Flenady’s claim and affirmed the ARO’s decision on 20 August 2018.[6]
[6] Exhibit 1, T Documents, T2, pages 4 – 23, SSCSD’s Decision and Reasons for Decision dated 20 August 2018.
Ms Flenady has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1 – 3, Ms Flenady’s Application for Review of Decision dated 4 September 2018.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (“the Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Flenady must have a physical, intellectual or psychiatric impairment;
(b)Ms Flenady’s impairments must be of 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 (Cth) (“Determination”).[8]
(c)Ms Flenady must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Flenady meets the Section 94 Requirements is the date of the claim (in this instance as at 23 October 2017), unless Ms Flenady becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[9] Therefore, in order to qualify for DSP Ms Flenady must have met the Section 94 Requirements between 23 October 2017 and 22 January 2018 (“Qualification Period”).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Flenady’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[10]
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[11] They are function based[12] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[13]
[11] Determination, ss 4(2) and 5(2)(a).
[12] Determination, ss 5(2)(b) and (c).
[13] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[14]
(a)Ms Flenady’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[14] Determination, see s 6(3).
Ms Flenady’s condition/s can only be permanent for the purposes of the Determination if the following conditions are satisfied:[15]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[15] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[16] the following must be considered:[17]
(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] For the purposes of ss 6(4)(a) and (b) of the Determination.
[17] Determination, see s 6(5).
A condition is fully stabilised[18] if:[19]
(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:
(iii)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;[20] or
(iv)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[18] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[19] Determination, see s 6(6).
[20] For reasonable treatment see s 6(7) of the Determination.
Reasonable treatment is treatment that:[21]
(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.
[21] Determination, see s 6(7).
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
DID MS FLENADY HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT(S) DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A) OF THE ACT?
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[22]
Ms Flenady’s Medical Conditions
[22] Determination, s 3.
Spinal Condition
In July 2016 an MRI of Ms Flenady’s spine showed spinal degeneration in the cervical region. Dr Jia-Haur Tho, Staff Specialist at the Neurology Clinic at the Royal Brisbane and Women’s Hospital, reported that:[23]
(a)Ms Flenady reported a long list of symptoms including headaches, dizziness, weakness and insomnia and he wondered whether it was due to her pernicious anaemia; and
(b)he suspected Ms Flenady could have central and peripheral nervous system disturbance from B12 deficiency and had suggested she take Endep.
[23] Exhibit 1, T Documents, T12, page 146, Report of Dr Jia-Haur Tho dated 29 July 2016.
In April 2017 Dr Andreussi, General Practitioner, reported that:[24]
(a)an MRI and CT of Ms Flenady’s spine showed minor disc bulges in the lumbar spine which was causing minor compression on the exiting nerve on the left-hand side, but that it was unclear if this was directly causing neuropathy;
(b)Ms Flenady had had multiple trials of managing her back pain including assisted weight loss management, referral physiotherapy and various trials of analgesia and has been referred to the persistent pain clinic at the Royal Brisbane and Women’s Hospital;
(c)Ms Flenady’s morbid obesity is very likely contributing to her current condition; and
(d)Ms Flenady had not had a surgical review.
[24] Exhibit 1, T Documents, T15, pages 164 – 165, Report of Dr Danielle Andreussi dated 22 April 2017.
In May 2016 Ms Flenady was referred to the neurology clinic. Dr Amit Sidana reported that there were mild degenerative changes in the cervical lower thoracic and lumbar vertebrae and that he had advised Ms Flenady to lose weight to manage her back pain.[25]
[25] Exhibit 1, T Documents, T17, page 172, Letter by Dr Amit Sidana dated 23 May 2016.
In August 2017 Dr Andreussi reported that the planned treatment for Ms Flenady’s spinal condition was exercise physiology, pain relief and weight loss.
In January 2018 Ms Flenady reported that she had been attending an exercise physiologist and had lost some weight.
In March 2018 Dr Sangeetha Mony, General Practitioner, reported that Ms Flenady has left lumbar radiculopathy and cervical spine degeneration and she was currently awaiting pain clinic review.[26]
[26] Exhibit 1, T Documents, T23, pages 208 – 230, Basic Rights Queensland questionnaire responses dated 26 March 2018.
At the SSCSD hearing Dr Mony gave evidence that Ms Flenady was still on a waiting list for a multi-disciplinary in-patient treatment and that the multidisciplinary team at the pain clinic included a dietician, a psychologist, a physiotherapist and others.
Diabetes
Although referred to in Ms Flenady’s DSP application, there is no medical evidence before the Tribunal regarding this condition. Ms Flenady told the Tribunal at the hearing that she no longer has this condition and is not relying on it for the purpose of this DSP application.
Pernicious Anaemia/Megaloblastic Anaemia
Ms Flenady was diagnosed with megaloblastic anaemia, a type of pernicious anaemia, in March 2015 by the haematology clinic at the Rockhampton Base Hospital.
In April 2017 Dr Andreussi reported that:[27]
(a)it was unclear if the megaloblastic anaemia had resulted in left-sided neuropathy;
(b)pernicious anaemia requires lifelong supplementation of vitamin B12 and is permanent and irreversible but can be managed with injections; and
(c)the condition is being optimally treated and shall continue to undergo management vitamin B12 injections every 3 months.
[27] Exhibit 1, T Documents, T15, pages 164 – 165, Report of Dr Danielle Andreussi dated 22 April 2017.
In March 2018 Dr Mony reported that Ms Flenady had had all reasonable treatments for her anaemia condition which would be likely to result in significant functional improvement. Ms Flenady continues to have B12 injections and folic acid and has ongoing chronic fatigue.[28]
[28] Exhibit 1, T Documents, T23, pages 208 – 230, Basic Rights Queensland questionnaire responses dated 26 March 2018.
Dr Mony reported in March 2018 that Ms Flenady’s pernicious anaemia condition warranted a rating of 20 points under Table 1.[29]
[29] Exhibit 1, T Documents, T23, pages 208 – 230, Basic Rights Queensland questionnaire responses dated 26 March 2018.
Peripheral Neuropathy
In April 2017 Centrelink referred Ms Flenady to the Health Professional Advisory Unit (“HPAU”) for an opinion. The HPAU officer reported that the peripheral neuropathy was possibly resulting from the megaloblastic anaemia, but the cause remains unclear.[30]
[30] Exhibit 1, T Documents, T16, pages 166 – 171, Health Professional Advisory Unit Opinion dated 28 April 2017.
At the SSCSD hearing Dr Mony gave evidence that Ms Flenady still required neurological investigation in relation to her neuropathy and that the underlying cause was still not known.[31]
[31] Exhibit 1, T Documents, T2, pages 4 – 23, SSCSD’s Decision and Reasons for Decision dated 20 August 2018.
Urticaria
In October 2017 Dr Mony reported that Ms Flenady suffered from recurrent urticaria which was under investigation by a dermatologist.[32]
[32] Exhibit 1, T Documents, T20, page 185, Report of Dr Mooney dated 16 October 2017.
Dr Ganeev Malhotra, Rheumatology Relieving Registrar, reported on 9 October 2017 that the dermatological testing undertaking had so far been negative.[33]
[33] Exhibit 4, Report of Dr Ganeev Malhotra dated 9 October 2017.
Gall Bladder Condition (Biliary Colic)
In March 2018 Dr Mony reported that Ms Flenday has biliary colic which was currently awaiting further investigations and specialist review to ascertain whether she required surgery and that the condition was not yet fully treated, diagnosis and stabilised.[34]
[34] Exhibit 1, T Documents, T23, pages 208 – 230, Basic Rights Queensland questionnaire responses dated 26 March 2018.
At the hearing Ms Flenady informed the Tribunal that she had had her gall bladder removed in May 2019 and that she was not relying on this condition for the purpose of this DSP application.
Fibromyalgia
Dr Malhotra that Dr Paul Kubler, Rheumatologist, was of the impression Ms Flenady had fibromyalgia and that she should have a multidisciplinary approach to managing her symptoms.[35]
[35] Exhibit 4, Report of Dr Ganeev Malhotra dated 9 October 2017.
In March 2018 Dr Mony reported that Ms Flenady was currently awaiting pain clinic review.[36]
[36] Exhibit 1, T Documents, T23, pages 208 – 230, Basic Rights Queensland questionnaire responses dated 26 March 2018.
In January 2018 Ms Flenady reported that the rheumatologist had advised her to lose weight, diet, and exercise and engage in an active, healthy lifestyle.
In February 2019, a year after the Qualification Period, Dr Mony reported that Ms Flenady was consulting a specialist for her fibromyalgia.[37]
[37] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 24 April 2019, Attachment A.
Mental Health
In September 2017 Dr Johan Schoeman, Clinical Psychologist, reported that:[38]
[38] Exhibit 1, T Documents, T19, pages 181 – 184, Report of Dr Johan Schoeman dated 13 September 2017.
(a)he had interviewed Ms Flenady on 10 occasions;
(b)“Ms Flenady presents with a significant disturbance in mood. She would therefore be considered to be a person suffering from a mental illness as per the Mental Health Act 2016”;
(c)Ms Flenady is unlikely to be a mentally ill person warranting voluntary admission to a psychiatric unit;
(d)there are no reasonable grounds to believe that Ms Flenady suffers from a developmental disability or severe cognitive impairment;
(e)Ms Flenady suffers from signs of cognitive deterioration which would need to be monitored;
(f)Ms Flenady would benefit from regular ongoing interviews with a the psychiatrist and clinical psychologist and will need ongoing regular reviews in terms of her current psychiatric medication;
(g)Ms Flenady was being treated optimally from a psychological perspective;
(h)Ms Flenady’s condition is stable but not in remission and is significantly affected by her complex medical conditions; and
(i)all indications are that Ms Flenady will be unable to function in the open labour market in the foreseeable future.
In October 2017 Dr Mony reported that Ms Flenady suffered from adjustment disorder with anxiety and was seeing a psychologist regularly.[39]
[39] Exhibit 1, T Documents, T20, page 185, Report of Dr Sangeetha Mony dated 16 October 2017.
In March 2018 Dr Schoeman confirmed that that Ms Flenady was diagnosed with adjustment disorder with anxiety and depression superimposed on a history of dysthymic disorder and that she had had psychotherapy and psychotropic medications. In Dr Schoeman’s opinion the condition was having a mild to moderate impact on Ms Flenady’s ability to function but that it was having a severe functional impact in terms of her ability to attend work or training.[40]
[40] Exhibit 1, T Documents, T23, pages 221-229, Basic Rights Queensland questionnaire responses dated 26 March 2018.
Conclusion on Impairment

Considering the above medical evidence the Tribunal finds that during the Qualification Period Ms Flenady suffered physical and mental impairments and that the requirement in section 94(1)(a) of the Act has been met. This is not disputed by the Secretary.[41]
[41] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 24 April 2019, para 29.
In relation to the gall bladder condition and urticaria condition, it is clear from the evidence outlined above that these conditions were not fully treated by the Qualification Period.
In relation to the diabetes condition, there is no medical evidence before the Tribunal and as a result it cannot be considered for the purpose of this application.
In relation to the neuropathy condition, the Tribunal considers that the evidence indicates that this condition has not yet been fully diagnosed or treated and therefore the condition cannot be considered permanent and no impairment rating can be assigned.
DOES MS FLENADY’S SPINAL CONDITION AND FIBROMYALGIA CONDITION ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
Are Ms Flenady’s Spinal Condition and Fibromyalgia Condition permanent and likely to persist for at least 2 years?
As at the Qualification Period Ms Flenady was still waiting on pain clinic review and treatment. As a result, these conditions are not permanent as defined by the Act and no impairment rating can be assigned. This is understandable in relation to the Fibromyalgia Condition as it had only been diagnosed in October 2017, just prior to Ms Flenady lodging her DSP application.
Ms Flenady told the Tribunal she had received some physiotherapy in December 2017, but only commenced pain clinic treatment (which involved counselling, exercise physiology and diet treatment, among other things) in early 2018. As a result, these conditions cannot be considered fully treated during the Qualification Period and no Impairment Rating can be assigned.
DOES MS FLENADY’S MENTAL HEALTH IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
Is Ms Flenady’s Mental Health Condition permanent and likely to persist for at least 2 years?
The medical evidence of Dr Schoeman establishes that Ms Flenady’s mental health impairment was permanent during the Qualification Period.
The Secretary accepts that Ms Flenady’s Mental Health Impairment is permanent and that an Impairment Rating can be assigned.[42]
[42] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 24 April 2019, para 47.
An Impairment Rating using the Impairment Tables can now be assigned.
Using the Impairment Tables
The level of impact of Ms Flenady’s Mental Health Impairment has to be assessed against the descriptors[43] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[44]
[43] Determination, see ss 3 and 5(3).
[44] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed based on what the person can, or could do, not based on what the person chooses to do or what others do for the person.[45]
[45] Determination, see s 6(1).
The Determination requires that the following information must be considered in applying the Tables:[46]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[46] Determination, see s 7.
The following information must not be taken into account in applying the Tables:[47]
(a)symptoms reported by Ms Flenady in relation to her condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Flenady’s local community.
[47] Determination, see s 8.
Which Tables are appropriate is determined by:[48]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[48] Determination, see s 10(1).
If an impairment is considered as falling between two impairment 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.[49]
[49] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[50]
[50] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[51]
[51] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·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).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The Secretary submits the evidence supports a finding that during the Qualification Period Ms Flenady has at most a mild functional impact resulting from her Mental Health Impairment.[52]
[52] Exhibit 2, Secretary's Statement of Facts and Contentions dated 24 April 2019, para 48.
In order to assign an Impairment Rating of 5 points, the evidence would need to show that there is a mild functional impact on activities involving mental health function.
The descriptors for an Impairment Rating of 5 points are:
There is a mild functional impact on activities involving mental health function.
(1)       The person has mild difficulties with most of the following:
(a)         self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b)         social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c)         interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d)         concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e)         behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f)          work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
The descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities involving mental health function.
(1)       The person has severe difficulties with most of the following:
(a)         self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)         social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)         interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)         concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)         behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)          work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Evidence Identifying the Loss of Function
In March 2018 Dr Schoeman’s opinion was that Ms Flenady’s mental health impairment was having a mild to moderate impact on Ms Flenady’s ability to function but that it was having a severe functional impact in terms of her ability to attend work. He reported against Table 5 the following:[53]
·self-care and independent living - mild impact;
·social/recreational activities and travel - mild impact;
·interpersonal relationships - moderate impact;
·concentration and task completion - moderate impact;
·behaviour, planning and decision making - mild impact; and
·work/training capacity- severe impact.
[53] Exhibit 1, T Documents, T23, pages 221-227, Answers to Basic Rights Queensland questionnaire completed by Dr Johan Schoeman on 26 March 2018.
Where a rating falls between two impairment 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.[54]
[54] Determination, see s 11(1).
The appropriate impairment rating to be assigned for Ms Flenady’s mental health impairment under Table 5 of the Impairment Tables is 5 points.
Dr Schoeman provided a further report in April 2019, where he indicates that Ms Flenady’s mental health condition has deteriorated and that her mental health conditions are now having a severe impact on her ability to function.[55] This report may be of benefit to Ms Flenady’s new DSP application, but it does not assist here. This opinion is based on Ms Flenady’s condition a year after the Qualification Period, it also appears that subsequent to the Qualification Period Mr Schoemann diagnosed Ms Flenady with the additional conditions of moderate depressive disorder and cluster C personality traits.
[55] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 24 April 2019, Attachment B.
At the hearing Ms Flenady acknowledged that the evidence available during the Qualification Period supported a 5 point rating. Ms Flenady told the Tribunal her mental health impairment had deteriorated since the Qualification Period and she has recently lodged a new DSP claim.
Is Ms Flenady’s Anaemia Condition permanent and likely to persist for at least 2 years?
The evidence indicates that Ms Flenady’s anaemia condition was permanent and that an Impairment Rating can be assigned. This is not disputed by the Secretary.
The issue is what functional impact the anaemia is having on Ms Flenady’s ability to work.
The Secretary contends the condition cannot be rated because the symptoms relating to the conditions of the pernicious anaemia, the degenerative spine and the fibromyalgia overlap, and it is impractical to isolate the contribution of the anaemia alone.
In July 2016 Dr Tho reported that Ms Flenady reported a long list of symptoms including headaches, dizziness, weakness and insomnia and he wondered whether it was due to her pernicious anaemia.[56] At that stage, it was not clear whether the symptoms related to Ms Flenady’s spinal condition or were due to anaemia or some other condition.
[56] Exhibit 1, T Documents, T12, page 146, Report of Dr Jia-Haur Tho dated 29 July 2016.
In March 2018 Dr Mony reported that Ms Flenady’s pernicious anaemia warranted a rating of 20 points under Table 1.[57] However, at the SSCSD hearing Dr Mony’s evidence was that the impact of the pernicious anaemia, the spinal condition, neuropathy and fibromyalgia all overlap.
[57] Exhibit 1, T Documents, T23, pages 208 – 230, Basic Rights Queensland questionnaire responses dated 26 March 2018.
The Tribunal has found that the spinal condition, neuropathy and fibromyalgia are not permanent conditions because they have not yet been fully treated.
It is not possible on the evidence to ascribe any symptom solely, or significantly, to Ms Flenady’s anaemia condition.
The Secretary referred the Tribunal to the matter of Pignat and Secretary, Department of Social Services (Social Services Second Review) [2017] AATA 2745 where Deputy President Bernard J McCabe said:
[21] I accept that, at least in some cases, it will be impractical to isolate the contribution of a particular condition towards an impairment when a number of other conditions also contribute to that impairment. I also accept this is beneficial legislation. In those circumstances, I accept a permanent medical condition need not be the only contributor to impairment before that impairment can be assessed, at least in cases where it would be practically impossible to isolate the contribution made by a permanent condition as opposed to another, non-permanent condition. But how significant must the contribution of the permanent condition be relative to the non-permanent conditions before the impairment can be said to result from the permanent condition?
To assign an impairment rating to a condition which is not the sole contributor to a functional impairment, the permanent condition must be a significantly contributing condition.
Dr Mony told the SSCSD that she was unable to comment on the impacts the anaemia was having on Ms Flenady’s ability to function.
As a result of the available evidence, no Impairment Rating can be assigned.
DID MS FLENADY HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I) OF THE ACT?
As Ms Flenady’s permanent impairments only attracted a 5 point Impairment Rating, it is unnecessary for me to consider whether Ms Flenady had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
CONCLUSION
Ms Flenady did not satisfy the Section 94 Requirements during the Qualification Period and therefore did not qualify for DSP at the date of her claim.
DECISION
The decision under review is affirmed.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.............................[SGD]......................................
Associate
Dated: 9 August 2019

Date of hearing: 30 July 2019

Date reserved: 30 July 2019

Applicant: By telephone

Advocate for the Respondent: Ms Jasmine Forsyth

Solicitors for the Respondent: Department of Human Services

appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

[2019] AATA 2478

9 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	30 July 2019
Date reserved:	30 July 2019
Applicant:	By telephone
Advocate for the Respondent:	Ms Jasmine Forsyth
Solicitors for the Respondent:	Department of Human Services