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

[2017] AATA 2587

Goodsall and Secretary, Department of Social Services (Social services second review) [2017] AATA 2587 (11 December 2017)

Division:GENERAL DIVISION

File Number:           2017/1935

Re:Leanne Goodsall

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:11 December 2017

Place:Brisbane

The decision under review is affirmed.

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

Senior Member T. Tavoularis

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the Relevant Period –various conditions affecting physical exertion and stamina and mental health - whether the Applicant’s conditions had an impairment rating of 20 or more points – conditions not fully diagnosed, treated and stabilised during Relevant Period – no impairment points could be assigned – decision under review is affirmed.

Legislation

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

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Secondary Materials

The Guide to Social Security Law

REASONS FOR DECISION

Senior Member T. Tavoularis

11 December 2017

INTRODUCTION

1. On 3 November 2015, Ms Leanne Goodsall (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) which was rejected because she did not have conditions that were fully diagnosed, treated and stabilised which were rated 20 or more impairment points.

2. The issue before the Tribunal is whether the Applicant qualified for DSP at the date of her claim, 3 November 2015, or within 13 weeks thereafter, that being up until 2 February 2016.

3. The Tribunal notes that the Applicant made a second claim for DSP in December 2016. That claim was granted upon review in August 2017 and back paid to the date of claim. So this matter will essentially affect the Applicant’s entitlement to approximately an extra year of back pay.

   HISTORY OF THE MATTER

4. On 3 November 2015, the Applicant lodged a claim for Disability Support Pension (“DSP”) listing her medical conditions as “severe costochondritis with constant unbearable chest pain not responding to normal pain killers, and depression which has lately flared up due to stresses she had.”[1]

   [1] Exhibit 4, T documents, T25, p 161.

5. The Applicant lodged a medical evidence checklist on 16 December 2015 and requested it to be considered as her amended claim. She noted the further conditions of “Thyroid disorder – underactive, Costiochronditis, depression, asthma, sleep apnoea.”[2]

   [2] See Exhibit 4, T documents, 27, p 170. 

6. On 24 February 2016, the Applicant attended a face-to-face assessment with a Job Capacity Assessor (“JCA”) who subsequently produced a report dated 18 March 2016.[3] The JCA assessed the Applicant’s conditions as follows:

   [3] Exhibit 4, T32, pp 204 – 209.

   (a)Respiratory Disorder - other

   ·     Verified by medical evidence, fully diagnosed (but not fully treated or stabilised).

   ·     Diagnosis: Costochonditis, Chronic Obstructive Pulmonary Disease (COPD), and Obstructive Sleep Apnoea.

   ·     The conditions were not considered fully treated and stabilised as medical evidence indicated that the Applicant ceased CPAP 18 months earlier and was currently experiencing COPD exacerbations every 1-2 months. The Applicant had not received any further treatment for her Costochonditis. 

   ·     This condition could not attract any impairment points.

   (b)Depression

   ·     Verified by medical evidence (not fully diagnosed, treated or stabilised).

   ·     Diagnosis: major depression and anxiety, verified by Applicant’s General Practitioner (”GP”).

   ·     This condition could not be considered fully diagnosed, treated and stabilised because there was no corroborating medical evidence from a clinical psychologist or psychiatrist to verify the diagnosis.

   ·     This condition could not attract any impairment points.

   The total impairment rating recommended by JCA for all reported conditions was nil points as none of the conditions propounded were considered fully diagnosed, treated and stabilised.

   The JCA assessed the Applicant’s Baseline Work Capacity as 15-22 hours per week with a predicted capacity of 23-29 hours per week within 2 years with intervention.

7. On 26 March 2016, the Department wrote to the Applicant advising her that her application for DSP had been rejected on the basis she did not have an impairment rating of 20 points or more.[4]

   [4] See Exhibit 4, T47, p 266.

8. On 14 April 2016, the Applicant contacted Centrelink requesting a review of that decision.[5]

   [5] See Exhibit 4, T48, p 274. 

9. On 17 June 2016, the Applicant attended a telephone assessment with another JCA, and a report was subsequently produced on 20 June 2016.[6] That JCA assessed the Applicant’s conditions as follows:

   [6] See Exhibit 4, T37, pp 221 – 229.

   (a)Musculo-skeletal Disorder – other

   ·     Verified by medical evidence (not fully diagnosed, treated or stabilised)

   ·     Diagnosis: Costochonditis (inflammation of cartilage connecting ribs to sternum)

   ·     The JCA noted that symptoms had only commenced several months ago and concluded that there was insufficient medical evidence to consider this condition as permanent.

   (b)Bursitis; Capsulitis & Tendonitis

   ·     Verified by medical evidence (not fully diagnosed, treated or stabilised)

   ·     Diagnosis: right hip pain / tronchantic bursitis

   ·     The JCA noted symptoms commenced six months earlier and there was insufficient medical evidence to consider the condition as permanent.

   (c)Fibromyalgia

   ·     Verified by medical evidence, fully diagnosed (but not fully treated and stabilised)

   ·     The JCA noted the condition was recently diagnosed and no there was no verification of reasonable treatment. Therefore it was not considered fully treated at the time.

   (d)Psychological/Psychiatirc Disorder - Other

   ·     Verified by medical evidence (not fully diagnosed, treated or stabilised)

   ·     Diagnosis: major depression and anxiety, verified by Applicant’s GP

   ·     The JCA concluded that the condition could not be considered fully diagnosed because there was no verification of the diagnosis from a psychiatrist or clinical psychologist at the time.

   ·     This condition could not attract any impairment points.

   (e)Chronic Obstructive Airways Disease

   ·     Verified by medical evidence, fully diagnosed, fully treated and fully stabilised.

   ·     Diagnosis: Chronic Obstructive Pulmonary Disease (COPD), (Applicant reported childhood onset of asthma)

   ·     The recommended impairment rating was 5 points, as the condition had a mild functional impact on activities requiring physical exertion or stamina (under Table 1).

   (f)Respiratory Disorder - Other

   ·     Verified by medical evidence, fully diagnosed, fully treated and fully stabilised.

   ·     Diagnosis: obstructive sleep apnoea

   ·     The recommended rating was 0, because there was nil impairment due to the condition being well managed. It did not appear to have a functional impact on physical exertion and stamina (under Table 1).

   The total impairment rating recommended by JCA for all reported conditions was 5 points.

   The JCA noted a temporary work capacity of only 8-14 hours per week, but assessed the Applicant’s Baseline Work Capacity as 15-22 hours per week with a predicted capacity of 23-29 hours per week within 2 years with intervention.

10. On 11 August 2016, an Authorized Review Officer (“ARO”) affirmed the decision under review.[7] The ARO upon review of the JCA report and additional other relevant evidence provided to the Department, made the following findings of fact:

    “Findings of Fact

    After careful consideration of the evidence, I have made these key findings:

    ·     You have the following permanent conditions: chronic obstructive airways disease (COAD) and obstructive sleep apnoea.

    ·     Your conditions of costochondritis, trochanteric bursitis, fibromyalgia and anxiety and depression are not accepted as being permanent as they have not been fully treated and stabilised.

    ·     Your total impairment rating is 10 points.

    ·     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.”[8]

    [7] Exhibit 4, T39, pp 232-238.

    [8] Exhibit 4, T39, p 233.

11. On 17 October 2016, the Applicant requested further review of the decision by the Social Services and Child Support Division of this Tribunal (“AAT1”). In support of her application for review the Applicant produced additional medical reports. [9]

    [9] Exhibit 4, T2, p 4.

12. On 27 February 2017, at first review, this Tribunal (“AAT1”) affirmed the decision under review but did not agree with the JCA or ARO. Instead, the AAT1 found that none of the Applicant’s conditions were fully diagnosed, treated and stabilised, and as such no impairment points could be assigned.[10]

    [10] Exhibit 4, T2, pp 3 -13.

13. On 3 April 2017, the General Division of the Administrative Appeals Tribunal (“this Tribunal”) received an Application for Second Review of Decision.[11]

    [11] See Exhibit 4, T1.

LEGISLATIVE FRAMEWORK

1. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

2. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 3 November 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[12]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 3 November 2015 and 2 February 2016 (“the Relevant Period”).

   [12] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

3. It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.  This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

   “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”. 

   [my underlining]

4. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[13] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations.  They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[14]  The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[15]

   [13] See s 26(1) of the Act.

   [14] See s 5(2) of the Determination.

   [15] See s 6(1) of the Determination.

5. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned 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 two years.[16] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[17]

   [16] See s 6(3) of the Determination.

   [17] See s 6(4) of the Determination.

6. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to 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 is planned in the next two years.[18]

   [18] See s 6(5) of the Determination.

7. A condition is “fully stabilised” if:

   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.[19]

   [19] See s 6(6) of the Determination.

8. “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.[20]

   [20] See s 6(7) of the Determination.

9. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. 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.  A rating cannot be assigned in excess of the maximum rating specified in each Table.[21]

   [21] See s 11(1) of the Determination.

10. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.

    ISSUES FOR THE TRIBUNAL

    24.The issues for me to consider are:

    (i)whether the Applicant’s medical condition(s) were fully diagnosed, treated and stabilised during the Relevant Period;

    (ii)whether the Applicant’s condition(s) warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

    (iii)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table; or if not,

    (iv)whether the Applicant completed a Program of Support; and

    (v)whether the Applicant has a continuing inability to work.

    CONSIDERATION

    Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

11. The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and thus the Applicant did not satisfy s 94(1)(b), nor did she satisfy s94(1)(c) of the Act as she did not meet the requirements of a continuing inability to work.[22]

    [22] See Exhibit 3, Respondent’s Statement of Issues, Facts and Contentions, [25].

12. I accept that the Applicant had impairments for the purpose of s 94(1)(a) of the Act. I propose to deal with the calculation of impairment points by reference to each of the Applicant’s various medical conditions.

    Sleep Apnoea

13. The Respondent’s contention is that this condition is fully diagnosed but not fully treated or stabilised during the Relevant Period. As such, the Respondent contends that an impairment rating cannot be assigned to it.

14. I think the contention is fairly made. It is clear from the material that the Applicant has not complied with stipulated treatment recommendations for this condition. It was noted in an Employment Services Assessment Report, done by the Department, that the Applicant reported she does not like or want to use her CPAP machine, but attempts to treat this condition by propping herself up with pillows and having a fan blow on her.[23]

    [23] See Exhibit 4, T21, pp 127 – 128.

15. This theme of non-acceptance of the CPAP machine was identified by Dr Lawton who was the locum physician at the Rockhampton hospital. In his report of 3 December 2015 Dr Lawton noted that the Applicant stopped using the CPAP machine some 18 months prior to December 2015 and that she had not used it since because she found it uncomfortable. Dr Lawton also noted that the Applicant tries to remediate this condition by taking an afternoon nap which, according to the Applicant “manages her problems adequately.”[24]

    [24] See Exhibit 4, T26, p 166.

16. At the hearing before me the Applicant sought to ameliorate this evidence of not using the CPAP machine by saying it had the potential to interfere with her capacity to responsibly care for her minor son, who is an asthmatic. As I understood the Applicant’s evidence, her reluctance to use the CPAP machine derives from a fear that it might distract her or cause her not to hear and deal with any distress or danger presented to her son following a serious asthma attack.

17. While I appreciate the Applicant’s obvious concern for the wellbeing of her son, this reason for not using the CPAP machine is simply not borne out in the evidence. As outlined above, she has self-reported her obstructive sleep apnoea symptoms to at least two medical practitioners who have both identified her rejection of that device as a therapeutic tool. Importantly, neither of the doctors have a record of her telling them that the reason for the rejection is based on the welfare of her son. One would have thought either or both medical practitioners would have identified this medical reason for the Applicant’s non-use of the CPAP machine. Unfortunately for the Applicant, neither of them does so.

18. There is no doubt that using a CPAP machine constitutes “reasonable treatment” for the purposes of s 6(7) of the Determination. The device clearly meets the elements of that subsection because it is a device already owned by the Applicant, is of a low risk nature, and were she to use the machine as prescribed, substantial improvement could be reliably expected.

19. While I note the Applicant’s evidence about her son’s asthmatic condition, I cannot find that her refusal to use the CPAP machine during the Relevant Period was due to a medical or other compelling reason. This is because the reason put forward by the Applicant is not verified or borne out in the medical or other evidence. The further point to be made is that if the Applicant had mentioned her predicament to the doctors, for apparently not using the CPAP machine, it is conceivable that her doctors may have prescribed a different treatment modality to her.

1. I find that this condition has been fully diagnosed but remained not fully treated and not fully stabilised during the Relevant Period. Accordingly, no impairment points can be allocated to this condition.

   Chronic Obstructive Airways Disease (“COAD”) / Chronic Obstructive Pulmonary Disease (“COPD”)[25]

   [25] The Tribunal notes that COPD and COAD have been used interchangeably throughout these proceedings.

2. Once again, the Respondent’s contention is that this condition was fully diagnosed but not fully treated or stabilised during the Relevant Period. On this basis says the Respondent, no impairment rating can be assigned to it.

3. The report of Dr Prasathnayagam dated 15 June 2016, notes that the Applicant’s COPD was diagnosed in 2010 by her GP. He further noted that the Applicant is on regular medications but that it is poorly controlled resulting in the Applicant experiencing symptoms on a daily basis comprising shortness of breath and a limitation of her daily activities.[26]

   [26] See Exhibit 4, T36, p 219.

4. There seems to have been some confusion about the diagnosis of this condition. Apparently, in the preceding seven years before her claim, doctors had thought this condition was asthma. The Applicant’s asthma was consistently described as causing minimal or limited impact on her ability to function.

5. The symptoms were then identified as a COAD condition in an X-ray of the Applicant’s chest on 9 October 2015, which was less than a month before the Applicant lodged her claim. The accompanying radiology report noted “the lungs show changes of COAD and chronic bronchial inflammation with increased marking pattern.” [27]

   [27] See Exhibit 4, T23, p 134.

6. Aside from her use of a Ventolin inhaler during exacerbations of the symptoms,[28] there is no evidence of the Applicant receiving reasonable treatment for this condition. This is consistent with Dr Prasathnayagam’s observation that the condition is “poorly controlled”.

   [28] See Exhibit 4, T34, p 213.

7. In addition, as noted by the JCA report of 18 March 2016, there is no evidence the Applicant “has received any further treatment (allied health treatment or respiratory rehabilitation) which may improve symptoms and functioning.”[29]

   [29] See Exhibit 4, T32, p 205.

8. I agree with the Respondent’s contention that the trend of the medical evidence is that the Applicant’s symptoms relating to her COPD/COAD have, if anything, deteriorated following the Relevant Period. While the initial level of occurrence of her symptoms was in the order of “every one to two months”,[30] her general practitioner’s report relatively shortly after the Relevant Period noted that symptoms arose “on a daily basis with short of breath (sic) and limiting her daily activities.”[31]

   [30] Exhibit 4, T28, p 197 and T34, p 213.

   [31] Exhibit 4, T36, p 219.

9. To my mind, the Applicant has further difficulty in demonstrating full treatment and stabilisation of this condition during the Relevant Period because there are clearly further treatment recommendations made to her outside that Relevant Period. As noted by the Applicant in her evidence at the AAT1 hearing, the new treatment modalities for this condition had given her some relief. This new treatment regime involved new medication and a “Novartis” breathing aid device.[32]

   [32] Exhibit 4, T2, p 7.

10. In these circumstances, I find that this condition was fully diagnosed but during the Relevant Period was not fully treated and not fully stabilised. Accordingly, no impairment points can be allocated to this condition.

    Costochondritis

11. As per its position on the previously discussed conditions, the Respondent’s contention is that this condition was fully diagnosed but not fully treated or stabilised during the Relevant Period. As such, no impairment points can be assigned to it.

12. There is also confusion about the identification or categorisation of this condition. It is clear that Costochondritis is a temporary condition where a patient generally experiences improvement only a few weeks after diagnosis. The Respondent submits that due to its recurring nature, it may well be the case that the Costochondritis condition may have formed part of the Applicant’s pain syndrome, which was later diagnosed as fibromyalgia.  There is evidence that the Applicant may have had this condition as far back as 2010. The important point for present purpose is that there is no evidence to demonstrate her Costochondritis symptoms were unlikely to significantly improve within two years.

13. In terms of treatment the Applicant received for this condition, it seems whatever treatment she did receive commenced at the time she lodged this claim for DSP. In his report of 15 October 2015, Dr Wilson describes a detailed treatment/management regime for these symptoms. He also made a recommendation to the Applicant’s local GP to further review the Applicant at the end of that regime and to implement an additional treatment regime if the first one was not successful.[33]

    [33] See Exhibit 4, T24, p 135.

14. The medical evidence further indicates that the Applicant was also reviewed by Dr Bontula on 28 January 2016 to rule out other causes of the chest pain about which she had been complaining. Extensive investigations were conducted which revealed nothing in the way of ischaemic heart problems or anything related to her chest.[34]

    [34] See Exhibit 4, T29, p 199.

15. The treatment of this condition continued to evolve beyond the Relevant Period. The Applicant’s GP continued to moderate her regime of medication.[35] This process continued well into the middle part of 2016.[36]

    [35] See Exhibit 4, T36, p 219.

    [36] See Exhibit 4, T28, p 197; T33, p 210; and T34, pp 213 - 214.

16. I find that this condition was fully diagnosed during the Relevant Period but was not fully treated and not fully stabilised. It seems quite clear that different regimes of medication were being proposed by her treating doctors well past the Relevant Period. It cannot be said that the condition was in anyway fully treated and stabilised during the Relevant Period.  Accordingly, no impairment points can be allocated to this condition.

    Fibromyalgia

17. This condition can be dealt with in relatively short compass. It was not diagnosed until about six weeks after the Relevant Period. The diagnosis first appears in the report by the Applicant’s GP, Dr Farajollahi, on 22 March 2016. He opines that the Applicant “has been diagnosed with Fibromyalgia lately.” [37]

    [37] See Exhibit 4, T33, p 210.

18. As noted by the Respondent there is no evidence suggesting that this condition was diagnosed within or prior to the Relevant Period, nor is there any evidence of her having undertaken reasonable treatment prior to or during the Relevant Period.

19. Accordingly, I cannot be satisfied this condition was fully diagnosed, or treated and stabilised during the Relevant Period and no impairment points can be assigned.

    Mental Health Conditions

20. The Respondent’s position on these conditions is more stringent. The Respondent contends that the Applicant’s mental health condition(s) cannot be considered fully diagnosed, treated and stabilised because there was no verification of the diagnosis by an appropriately qualified medical professional during the Relevant Period.

21. The Applicant obviously has a confirmed history of depression. It appears in Centrelink’s medical records from as far back as November 2011, April 2012 and November 2012. There is further evidence from a psychologist Ms Theresa Mayne in the form of a letter dated 19 August 2010, in which she opines that: “In my assessment [the Applicant] is suffering from depression and anxiety...”[38] 

    [38] See Exhibit 4, T7, p 73.

22. Similarly, the psychologist, Ms Jennifer Reinikka, in her report of 24 April 2012, confirms she had been treating the Applicant since April 2011. She notes the Applicant appears to have long term depression and anxiety of a high and unstable nature.[39]

    [39] See Exhibit 4, T14, p 106.

23. Whilst I acknowledge the Applicant’s evidence that she has been consulting with psychologists for a number of years prior to the Relevant Period, there is for present purposes a definitional problem with the diagnosis. It arises because the Introduction to Table 5 of the Impairment Tables provides that “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).”

24. At first blush, the report of the clinical psychologist, Dr Keen, dated 27 April 2016, meets that diagnostic threshold. Dr Keen makes a diagnosis under the DSM-V of Major Depressive Disorder, recurrent episode with psychotic features.[40] The critical, and probably fatal, aspect for the Applicant is that she did not commence treatment with an appropriately qualified health care practitioner (psychiatrist or clinical psychologist) until almost three months outside the Relevant Period. Her initial consultation with Dr Keen, the clinical psychologist, was on 27 April 2016.[41] The report containing his diagnosis was contemporaneous with that consultation.

    [40] See Exhibit 4, T35, p 218.

    [41] See Exhibit 4, T35, p 215.

25. The further point to be made regarding the Applicant’s mental health condition is that neither its treatment nor stabilisation occurred during the Relevant Period. Dr Keen, in his report of April 2016, makes recommendations for the ongoing treatment and management of these symptoms. He clearly speaks of “psychological treatment/intervention” and of sessions involving techniques of psychotherapy. There is undeniable evidence of Dr Keen’s continued involvement with the Applicant beyond April 2016 – for a period of more than six months after the Relevant Period.[42]

    [42] See Exhibit 4, T44, p 255.

26. Mention should also be made of the Applicant’s referral to Dr Kaul, a consultant psychiatrist. Dr Kaul saw her on 12 December 2016 and provided a detailed treatment plan including medication, and further cognitive behaviour therapy.[43] Of course, this is 10 months outside the Relevant Period.

    [43] See Exhibit 4, T42, pp 242 – 247.

27. It is clear then that there is no evidence of these mental health symptoms having been diagnosed by a psychiatrist or a medical practitioner with evidence from a clinical psychologist, prior to or during the Relevant Period. Therefore, there cannot be a valid diagnosis of this condition and no impairment points can be allocated under Table 5 (Mental Health Function).

    Other Conditions

28. Other conditions are referred to in the evidence. They include lumbar and joint pains, a thyroid disorder, and trochanteric bursitis. There is no evidence the Applicant was receiving treatment for these conditions, or any evidence detailing her prognosis if she were to undertake reasonable treatment prior to or during the Relevant Period.

29. I find that there is insufficient medical evidence about these other conditions for them to be considered fully diagnosed, fully treated and fully stabilised during the Relevant Period, and I cannot assign any impairment ratings to them.

    Summary of Impairment Points

Condition	Table	Points Assigned
Sleep Apnoea	Table 1 – Functions requiring physical exertion and stamina	Fully diagnosed, but not fully treated and stabilised. No impairment rating assigned.
COAD / COPD	Table 1 – Functions requiring physical exertion and stamina	Fully diagnosed, but not fully treated and stabilised. No impairment rating assigned.
Costochondritis	Table 1 – Functions requiring physical exertion and stamina	Fully diagnosed, but not fully treated and stabilised. No impairment rating assigned.
Fibromyalgia	Table 1 – Functions requiring physical exertion and stamina	Not fully diagnosed, treated or stabilised. No impairment rating assigned.
Depression & Anxiety	Table 5 – Mental Health Function skin	Not fully diagnosed, treated or stabilised. No impairment rating assigned.
Other Conditions	Various	Not fully diagnosed, treated or stabilised. No impairment rating assigned.
Total Points =		Nil

1. As I have not been able to assign the Applicant any impairment points during the Relevant Period for this DSP claim, it follows that she did not have a total rating of 20 or more points under the Impairment Tables. Accordingly, she does not satisfy the requirement under section 94(1)(b) of the Act and therefore does not qualify for DSP via her 2015 claim.

2. Given the Applicant does not reach 20 points or more during the Relevant Period, it is not necessary for me to consider whether she satisfies the remaining criteria for DSP.

3. I note that the Applicant re-applied for DSP in December 2016 and was successfully granted the DSP through that claim in August this year.

   DECISION

4. The decision under review is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

...........................[sgd]......................................

Associate

Dated: 11 December 2017

Date of hearing:	8 December 2017
Applicant:	By telephone
Solicitors for the Respondent:	C. Campbell, DHS - FOI and Litigation Team