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

Greentree and Secretary, Department of Social Services (Social services second review) [2020] AATA 659 (24 March 2020)
Division:GENERAL DIVISION
File Number: 2019/3918
Re:Ms Tasmyn Greentree
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO Member
Date:24 March 2020
Place:Melbourne

The Tribunal affirms the decision under review
............[sgd].....................................
Ms Anna Burke AO Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – conditions of vestibular neuritis and depression – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms Anna Burke AO Member
24 March 2020
INTRODUCTION

Ms Greentree (the Applicant) is seeking a second tier review of the decision made by the Secretary of the Department of Social Services (the Respondent). The decision refused to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the Department of Human Services.
Ms Greentree lodged a claim for DSP on 26 November 2018. On 8 December 2018, an employee of Centrelink decided that Ms Greentree was not entitled to a DSP as she did not meet the requirements of the Act. On 11 March 2019, an Authorised Review Officer (ARO) of Centrelink affirmed the decision made. Ms Greentree sought review of the decision by the ARO at the Social Services and Child Support Division of this Tribunal (Tier 1), which affirmed the decision on 5 June 2019.
The application was heard on 21 February 2020. Ms Greentree was self-represented and Ms Shauna Roeger, of the Australian Government Solicitor, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Roeger.
THE ISSUES IN CONTENTION
The issues in contention are whether Ms Greentree:
(a)has a physical, intellectual or psychiatric impairment(s);
(b)has a fully diagnosed, treated and stabilised condition or conditions which result in impairments attracting 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)has a continuing inability to work.
In accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999, Ms Greentree’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 26 November 2018 to 25 February 2019 (the qualifying period).
BACKGROUND
Ms Greentree is 23 years of age and currently lives with her partner. She completed year 12, undertook a diploma in specialist make-up studies and beauty therapy and is currently studying pharmaceutical sciences part-time at RMIT University. Ms Greentree worked as a beauty therapist from August 2016 until she ceased in September 2017, reportedly as a result of her vertigo condition.
On 26 November 2018, Ms Greentree made an application for DSP, citing her medical conditions as vestibular neuritis.
On 3 December 2018, a Centrelink officer conducted an eligibility assessment recommendation of Ms Greentree’s claim and determined she was manifestly medically ineligible as her conditions were not fully diagnosed, treated and stabilised.
On 11 March 2019, on internal review, an ARO of the Department affirmed the earlier Centrelink decision determining Ms Greentree’s health conditions were not fully treated and stabilised. The ARO stated:
However, there is insufficient current medical evidence to indicate you have engaged in, and completed, a block of vestibular physiotherapy as recommended by your specialists. In addition, as mentioned above, your mental health issues impact this condition and have not been adequately addressed as recommended by your specialists. Your condition of vestibular neuritis is not optimally treated and there is insufficient evidence to accurately ascertain the current level of impairment. Therefore, it cannot be considered for an impairment rating.
On 5 June 2019, Tier 1 affirmed the decision of the ARO to reject Ms Greentree’s DSP claim. Tier 1 concluded that none of Ms Greentree’s medical conditions attracted an impairment rating as they were not considered to have been fully treated and stabilised at the time she made her claim.
On 1 July 2019, Ms Greentree sought a review of the Tier 1 decision by this division of the Tribunal, stating in her application:
It was claimed that my condition was ‘not fully diagnosed, fully treated and fully stabilised’ but no evidence to this was put forward or even which of these three concerns was violated by my condition or if it was all three. I have supplied extensive documentation showing my diagnoses as well as all of the extensive treatment I have under gone to stabilise the condition. My condition is complicated and I am aware that it can cause some confusion in terms of my claim, but I firmly believe that I am eligible for disability support pension and was so at the time I lodge my claim in November 2018. I have cooperated at every turn supplying more and more documentation but I am at the point where I do not know what more I have to do to plead my case. My condition affects every facet of my life and I am heartbroken every single day over the knowledge that I cannot return to work at the job I love. I am willing to continue to working with representatives openly to help them reach a decision that they feel is mutually beneficial for all.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for DSP if:
(a)       the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)       one of the following applies:
(i)        the person has a continuing inability to work;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(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.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) 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.
For the purposes of s 6(7) of the Impairment Tables, reasonable treatment is treatment that:
(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.
The determinative issue in this review is whether, during the qualifying period, Ms Greentree suffered an impairment(s) that can be assigned 20 points or more under the Impairment Tables; and, if so, whether she had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
When assessing whether someone has a continuing inability to work, Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) sets out a number of exemptions to the general requirements that a person must participate in a Program of Support (POS) for at least 18 months in cases where a person does not have a severe impairment,. A person’s impairment is considered severe if their impairment is of 20 points or more under a single impairment table
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4)This subsection is satisfied in relation to a person and a program of support if:
(a)The program of support was terminated before the end of the relevant period; and
(b) The program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5)This subsection is satisfied in relation to a person and a program of support if:
(a)At the end of the relevant period, the person is participating in the program of support; and
(b)The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, additional medical reports, a medical appointment diary and a written statement lodged by Ms Greentree.
DOES MS GREENTREE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.
The Respondent accepts that Ms Greentree is suffering from vestibular neuritis and depression. The Tribunal finds that Ms Greentree was living with impairments during the qualifying period and therefore meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MS GREENTREE HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Vestibular neuritis
On 22 September 2017, Ms Greentree was admitted to the neurological unit of Western Health after suffering vertigo symptoms for four weeks that had not responded to medication prescribed by her general practitioner, the principal diagnosis was of vertiginous migraine. Ms Greentree’s summary of treatment indicates she was reviewed by a clinical psychologist, who noted: impression that it was likely some compenent of anxiety/stress was contributing to ther symptoms [sic]. Ms Greentree was discharged home on 28 September 2017 with medication and a follow-up appointment made with the acute neurology clinic.
Dr Daniel Ong, neurological registrar, reviewed Ms Greentree on 7 February 2018 in the Acute Neurological Clinic of Western Health. He noted she was formerly a well individual who has been particularly disabled by ongoing vertigo since September 2017. He observed that Ms Greentree had a previous diagnosis of vertiginous migraine, but despite treatment she had not improved much. In his report he notes:
She was Romberg’s negative. There were no cerebellar signs. Power, tone reflexes in all four limbs were normal. Her coordination was also normal. Head impulse test was negative and there was no nystagmus.
Clearly Tasmyn has been impacted significantly by these ongoing symptoms. She has gone from being an active and financially independent beauty therapist to being unable to work from most the last five months. She is currently on the waitlist for the Dizzy Day Clinic which we feel is very appropriate. Having discussed and reviewed the patient with Dr Victor Chong we found that it is unlikely that there is an anatomical or intrinsically neurological cause for these symptoms as the vertigo history is very atypical.
If all tests are negative then we have advised her that the most likely course of action would be ongoing vestibular rehab to reset her sense of balance. We also discussed her previous psychological assessment and diagnosed the borderline personality disorder. We recognise that the fall patterns and borderline personality disorder are not particularly compatible with the uncertainty and the prospect of slow recovery that faces Tasmyn at the moment. We feel therefore that if possible she should access ongoing psychological input as this may help achieve a better outcome.
Dr Martin Short, neurologist, reviewed Ms Greentree on 9 April 2018 regarding her vertigo at Western Health. In his report he noted:
Neurological examination:
Tasmyn appeared well, although frustrated with her symptoms. She has slow and unsteady gait. Romberg’s tested negative (with eyes open and closed). She had full range of eye movements with no nystagmus. Pupils were equal and reactive to light. Other cranial nerves including hearing were normal. Tone, power and reflexes were normal in upper and lower limbs. Coordination was normal in the arms and planters were downgoing in the feet. She had normal temperature and vibration sensation in both arms. There was reduced temperature sensation in both feet but normal vibration sensation bilaterally.
Clinical impression:
Tasmyn’s history is consistent with vestibular neuritis. This can take some time to heal. Maybe being exacerbated by her erratic sleep patterns and psychological factors.
Management plan:
Vestibular neuritis - … I have strongly encouraged vestibule physiotherapy as mainstay of treatment and I have referred her back to Sunshine Hospital physiotherapy department for this.
Psychological factors - I have strongly recommended seeing a psychologist as I suspect the frustration she has with her symptoms could progress to depression that may exacerbate her symptoms and slow recovery.
Dr Erika Tomlinson, general practitioner, in a Centrelink medical report for assessor dated 25 May 2018 diagnosed the Applicant with vestibular neuritis, with an onset of September 2017. The symptoms reported included dizziness, disequilibrium, difficulties with concentration and difficulty with walking (requires a cane). The treatment was described as physiotherapy for management and ongoing neurological review. Dr Tomlinson reported Ms Greentree was unable to work.
Dr Richard Yitong Shao, Neurology Hospital Medical Officer, reviewed Ms Greentree on 18 July 2018 at Western Health. He stated it appeared to him that physiotherapy had not improved her symptoms and noted the management plan as follows:
Despite being persistently symptomatic, her diagnosis is still more consistent with vestibular neuritis due to investigations are all negative so far. The most important management advised for her is to be seen in the Vestibular Physiotherapy Department…
We wonder whether there are any psychological precipitating factors of her ongoing symptoms such as her history of depression. I understand that she has been referred to a mental health practitioner for psychological counselling. We wonder whether she should be referred to a psychiatrist for pharmacological management.
Dr Tomlinson in a referral letter dated 24 July 2018 states:
She has chronic vertigo for which she has had many investigations with a neurologist with no cause found. Myself and the neurologist both believe that vestibule physiotherapy is very appropriate and have done a GPMP and assigned 3 visits so far to yourselves.
Dr Tomlinson’s referral letter to Sunshine Adult Clinics – Physio CBR of 3 August 2018 states:
I believe she was supposed to be referred to you many months ago by the neurology team, but it appears sadly that referral was never made as I found out when I called today.
You will be able to see on the Western Health system/Sunshine that there is no cause found for her vertigo. I have attached her most recent letter, but she has had lots of investigations, including 2 x normal MRI brain.
She has daily vertigo, walks with a SPS and is presently unable to work due to this debilitation illness.
The neurologist and myself are very keen for physio (neuro/vestibule) input, she is unable to get to the Broadmeadows for their physio and still has not received any documentation about the referrals sent.
Dr Michael O’Malley, general practitioner, in a letter dated 14 January 2019 states:
I have been her GP since August 2018, but she has been a patient of this practice since March 2018.
She suffers from a condition known as vestibular neuritis. The key symptoms are constant dizziness, nausea and headaches, which are severely debilitating, impacting Ms Greentree’s mobility (she is now using a walking stick).
The treatment she is undergoing (physiotherapy, occupational therapy, hydrotherapy, and therapeutic psychology) is NOT curative in nature i.e. we do not expect to cure the issue, but is instead intended simply to alleviate symptoms and help her to better manage with her condition.
The condition is likely to persist, and should be treated as a permanent condition.
Western Health’s Community-Based Rehabilitation Unit final discharge summary of 21 June 2019 reported the reason for referral was one year of vertigo with unclear cause and unable to work. The Community-Based Rehabilitation Unit reported on the goals and outcomes they had attempted with Ms Greentree. This included working with an occupational therapist, physiotherapist and psychologist to provide education regarding pain and fatigue management to find mechanisms to better manage her fatigue and dizziness. These mechanisms included pacing techniques and a general reconditioning fitness program. It recommended that:
Tasmyn capitalise on the stability she has managed to achieve despite her symptoms and continue to seek mental health support in a non medical/physical rehabilitation setting to address longer-term psychiatric concerns that may indirectly impact on her experience of physical/functional symptoms.

Dr Meredith Moodie, general practitioner, in a report dated 18 November 2019 based on Ms Greentree’s medical file and her own account stated:
vestibular neuritis or vestibular migraine
… experiencing symptoms and undergoing investigations since September 2017.
In April 2018 the clinical impression was vestibular neuritis.
Since 25 February 2019 Ms Greentree has been reviewed by the Otoneurology Clinic at Alfred Hospital and it has been proposed (but not confirmed) that Ms Greentree has Persistent Postural Perceptual Dizziness or Chronic Subjective Dizziness. Ms Greentree is having ongoing review at this clinic.
Ms Greentree provided a written statement to the Tribunal chronicling the onset of her vertigo condition from September 2017 until the present day. In her statement, she describes the functional impact of her condition and the extensive range of treatments she has undergone to stabilise her condition. In part the report states:
On Tuesday the 5^th September 2017 I arrived at work to open the store. Moments after doing so I was struck by an intense wave of vertigo and nausea…
My symptoms at this point were: intense dizziness; inability to walk in a straight line; inability to stand unsupported; constant and severe nausea; intense headaches that ringed my entire skull; blurred vision to the point where I could not see more than a metre in focus; shaking predominantly in my hands but also through my wider body at times; facial muscle twitches; severe fatigue and body ache; difficulty concentrating or focusing on what was at hand.
Part way through that course of steroids I experience the worst day I had had since falling ill….As I was unable to do anything for myself, my partner called an ambulance and I was taken to Sunshine Hospital.
After seven days I was discharged from hospital. It was determined that I may be suffering from a form of vestibular neuritis, however no form of treatment was working. I was discharged simply because the neurologists deemed that there was nothing more they could do to help me. I left with a prescription to ondansetron, a drug to help manage my constant nausea.
…
Between October 2017 and May 2018, I continued to explore treatment options. In this time I: met with multiple neurologists, a kinesiologist, a naturopath, a chiropractor, a physiotherapist, an eye specialist and an ENT specialist; trialled numerous further medications; underwent a second MRI; and moved homes under the theory that the condition of our present home may be causing or exacerbating the condition. I saw no change within this time and retained all the same symptoms.
…
This vestibular testing revealed no major findings or improvements in my condition. I was referred to a vestibular physiotherapist to see if that would offer me any relief.
After a number of mis-starts where my referral was lost, ignored or sent to the wrong place, I was finally admitted to NeuroRrehab physiotherapy in August 2018. Here I underwent 3 physiotherapy sessions. During these sessions I underwent more testing and tried a number of exercises and therapies before it was determined there was nothing they could do to improve my condition. At this time one physiotherapist told us that my condition was permanent and that we needed to stop looking for a cure or answer to the problem and instead focus on trying to live a proper life again.
After this we were accepted into the Community Based Rehabilitation program at Sunshine Hospital in late August 2018. While there I met with a vestibular physiotherapist and an occupational therapist. Their intention was to attempt to teach me how to lead a semi-ordinary life and adapt my living conditions and actions to suit this need. I was taught how to pace myself and not over exert myself, how to alter activities to allow me to attempt them and how to alter our living environment to assist me in moving around.
During this time I experienced no change in my condition, all of my symptoms remaining constant and ever present. I did however manage to alter my lifestyle enough that I could manage one task per day, averaging at one hour of activity. This task could have been the folding of the washing, writing a document, simple cooking or other similar small activities.
After three months of therapy, in November 2018 it was decided that I had reached the best that my condition would allow me to be. At this time I ceased regular appointments with my occupational therapist, as is documented. At my request we continued scheduling physio appointments so that I could use the modified gym equipment on a semi-regular basis as I had none to use at home and could not afford a gym membership or similar. These further appointments would not improve my condition or my quality of life dealing with condition, but were a futile attempt on my part try to regain some of the strength I once had.
It was also at this time, in November 2018 that I lodged my first claim for Disability Support Pension. We decided to do this at this time as any form of treatment had stopped, my condition had reached the best it was going to be, without any chance of improvement, and I now knew that it would be permanent.
The Respondent accepts that Ms Greentree’s condition of vestibular neuritis was fully diagnosed during the qualifying period based on the significant medical evidence. However, they contended the condition was not fully treated and stabilised as Ms Greentree had not been discharged from her recommended vestibular physiotherapy treatment until 10 May 2019, as evidence by the Sunshine Hospital Community Based Rehabilitation discharge summary.
Ms Greentree advised the Tribunal that during the qualifying period her condition presented the following symptoms and resulted in impaired functionality:
·constant severe vertigo and dizziness;
·instability - requiring use of single-point walking stick;
·could not walk in a straight line;
·needed to lean on furniture surface if she did not have her walking stick;
·could not stand unaided;
·had constant headaches, ringing in the head;
·constant nausea (regularly taking anti-nausea medications);
·fatigue and exhaustion;
·deep body ache, with heavy limbs;
·poor concentration, little memory function, constant brain fog, limited ability to write or complete tasks; and
·shaking hands, whole body but hands in particular (this resulted in her inability to perform any work in her previous profession as a beauty technician).
Ms Greentree contended that during the qualifying period her condition was fully diagnosed, treated and stabilised as she had completed all her recommended treatment in November 2018. Ms Greentree provided the Tribunal with her appointment diary from the Community Based Rehabilitation centre at Sunshine Hospital which she contended indicated her treatment had concluded in November 2018. Ms Greentree argued that her impairment was neurological in function and should be assessed as severe under Table 7 – Brain Function of the Impairment Tables.
At the hearing, Table 7 – Brain Function was explored in respect of the impact of Ms Greentree’s vestibular neuritis, with a focus on whether she had a possible severe impairment:
There is a severe functional impact resulting from a neurological or cognitive condition.
(1)The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:
(a)       memory;
Example 1: The person is unable to remember routines, regular tasks and instructions.
Example 2: The person has difficulty recalling events of the past few days.
Example 3: The person gets easily lost in unfamiliar places.
(b)       attention and concentration;
Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.
Example 2: The person is easily distracted from any task.
(c)       problem solving;
Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.
(d)       planning;
Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).
(e)       decision making;
Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.
(f)        comprehension;
Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.
(g)       visuo-spatial function;
Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).
(h)       behavioural regulation;
Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.
(j)        self awareness.
Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.
Ms Greentree advised the Tribunal that during the qualifying period:
·her memory was terrible and previously it had been very good. She stated that her condition ruined her memory completely. She had put in an application to RMIT University as she was hopeful her condition would improve and she would be able to study, but had not been able to commence until 2019 with a great deal of assistance;
·her concentration was terrible, she struggled to finish tasks and all her treatment focused on her being able to complete one task a day such as folding the washing but even this was a struggle;
·her ability to problem-solve was terrible; she had little ability to do anything new or complex – explaining by way of example that her physiotherapist would give her exercises to complete at home but she would be unable to work out how to actually perform the exercises once she got home;
·whilst her planning capability was not great, she could utilise a calendar for all her appointments and manage things; she did not believe this function was that applicable to her condition;
·her decision-making was terrible, she had no perspective on her condition and was unaware how bad she was. She again cited the example of folding the washing which she said can take her hours to finish, advising she gets frustrated that she cannot get the clothes folded completely right and continues at this task for hours even though it is detrimental to her health and well-being;
·she used to pride herself on her comprehension and being present in the moment. However, now she has to constantly ask where she is; what she is doing and struggles with understanding even simple instructions and needs assistance from her partner to complete most tasks;
·her visuospatial function has been greatly impacted by her disorder and this was and continues to be a major concern, as she is constantly walking into door frames and struggles with stairs;
·she had no difficulty with behavioural regulation, observing that this functionality did not apply to her condition; and
·her self-awareness was horrible and her partner was the only one keeping her going most days. She stated that he regularly had to assist her with bathing and on numerous occasions has had to carry her around the house.
Whilst the Respondent did not concede that the condition was fully diagnosed, treated and stabilised during the qualification period, they argued that if the Tribunal made a finding that the condition could be assessed under the Impairment Tables, the condition would attract 10 points under Table 11 - Hearing and other Functions of the Ear and 5 points under Table 7 - Brain Function.
The Tribunal, looking at all the evidence, did not find that Ms Greentree’s functional impairment could be assessed under Table 11 of the Impairment Tables. There was no report from a medical specialist such as an Ear Nose and Throat specialist or neurologist confirming that the diagnosis of her condition was associated with hearing impairment. The report of the University of Melbourne’s Ontological Clinic Balance Disorders Unit found that Ms Greentree’s hearing was normal, bilateral and all other tests of peripheral vestibule function were normal. The report went on to say that oculomotor results may raise suspicion of central pathology, however, other contributing factors such as attention and anxiety, cannot be ruled out. Given there was no corroborating medical evidence that Ms Greentree’s symptoms were associated with the functions of the ear, the Tribunal did not consider Table 11 relevant.
The Tribunal, having considered all the medical evidence and the written and oral testimony of Ms Greentree, concurs with her succinct summary of her condition as complicated, and causing some confusion in terms of her claim for DSP. Ms Greentree’s condition is indeed complicated, with no known cause, cure or definitive diagnosis. The Tribunal relied upon the referral letter of Dr O’Malley of 1 February 2019 where he stated:
Tasmyn has been suffering from persistent, constant vertigo since September 2017, the aetiology of which remains unclear. There was no illness or injury preceding the onsent of vertigo, and it was quite sudden in onset. It is severe enough to affect her day-to-day life quite significantly, and causes near constant nausea. Her mobility is affected to the point She has gained no benefit from medications with the exception of ondansetron, which helps with her nausea.
She has been seen and investigated by the neurology service at Western Health, but this far no clear diagnosis has been made. All investigations have been normal…
Related to the issue, Tasmyn has been suffering from persistent low mood. This I believe is largely as a result of the loss of independence, but also the personal setbacks she has suffered – she has had to take time off studying, and has suffered a financial burden as well. She is accepting that this condition may be permanent, and is seeing a psychologist to help manage her mood and expectations.
Her past medical history is unremarkable; particularly there is no history of ear conditions, operations or trauma.
After my most recent discussion with the neurologists at Western Health, they feel that there is little more they can do and have suggested that you may be able to help.
Ms Greentree advised the Tribunal that she could not identify the cause of her debilitating vertigo, but did not perceive it was related to trauma or psychological factors. Ms Greentree was adamant that the causation of the vertigo was neurological and she considered her brain just gave up, suffering a vestibular event. Ms Greentree advised the Tribunal that her condition was permanent and had been stabilised through treatment. Ms Greentree contends that treatment had not and could not improve her functionality, but had provided her with techniques through which she could manage to live as independently as possible.
Although the Tribunal noted that the diagnosis of Ms Greentree’s condition had been variously described as vestibular neuritis, vestibular migraine and most recently as persistent postural perceptual dizziness, a report by Dr Naimah Mohd Saleh, Neurological Registrar at Western Health dated 15 July 2019 stated ‘our impression at the moment is persistent postural perceptual dizziness (PPD)”. The Tribunal on balance found Ms Greentree’s condition had been fully diagnosed during the qualifying period.
The Tribunal on balance, considering all the medical evidence together with information provided by Ms Greentree, found the condition had been fully treated and stabilised during the qualifying period. The Tribunal noted Ms Greentree had undertaken regular physiotherapy, occupational therapy and psychological review and treatment at Sunshine Hospital from August 2018 after being discharged from the clinic in February 2019. Whilst the Tribunal noted this treatment ceased after the qualification period, the Tribunal considered the treatment was for the management of her condition and not for assistance gaining functionality, noting the discharge report of the Sunshine Hospital Community Based Rehabilitation.
Based upon the medical evidence supplied to the Tribunal and the additional evidence provided by Ms Greentree at the hearing, the Tribunal has awarded 10 points under Table 7 of the Impairment Tables in respect of this condition. The Tribunal finds that Ms Greentree’s constant vertigo is having a moderate impact on her brain functionality. Given the nature of Ms Greentree’s condition, the Tribunal determined Table 7 correlated to her specific impairment. Whilst Ms Greentree advised the Tribunal she considered herself as having severe difficulties with memory, attention and concentration, problem solving, decision-making, comprehension, visual-spatial function and self-awareness, the medical evidence before the Tribunal indicated that she was having moderate difficulties with some tasks. The Tribunal relied upon the discharge report of Sunshine Hospital Community Based Rehabilitation, which states:
Client reported has implemented pacing strategies with success and is now able to complete housework, cooking and other occupations on a weekly basis with reduce fatigue and able to better manage her dizziness experienced daily.
While reported dizziness is the same, there has been improvement in gait and balance outcome measures and Tasmyn has increased her participation in daily tasks.
Client reported has been sleeping better finding it easier to fall asleep.
Tasman has returned to University part-time and is independently managing her dizziness with pacing and problem-solving within the busy environment.
Depression
Dr Robert Potter, clinical psychology registrar at the Community Based Rehabilitation centre of Sunshine Hospital, in an undated report indicated that Ms Greentree had attended nine clinical sessions from 21 January 2019 to 10 May 2019. During these sessions she had reported historic diagnosis of panic disorder, obsessive-compulsive disorder and borderline personality disorder, including periods of self-harm disorder. He observed in the current assessment that she endorsed symptoms of major depressive disorder secondary to adjustment to her vertigo condition and social anxiety due to her fear of being judged negatively on various personal characteristics. He noted treatment largely involved introducing psychological strategies to reduce levels of stress as it was understood that stress was exacerbating her symptoms of vertigo. He noted her engagement was concurrent to a physiotherapy treatment plan aimed at increasing her balance and tolerance of vertigo symptoms. The report indicated it was highly recommended that Ms Greentree engage in further psychotherapy to continue to build her awareness of, and ability to respond effectively to, emotional disturbances and patterns of negative thinking, which in turn exacerbate her symptoms of vertigo.
Ms Greentree advised the Tribunal that she had been recommended psychological counselling not to deal with the causation of her vertigo symptoms, but as treatment to assist her deal with her emotions to assist her accept and adapt to her normal life, recognising that she has a permanent debilitating condition. She had not undertaken any additional psychological treatment as she had no financial means to pay for treatment. She stated that the mental health plan was in place to provide her with coping strategies and was not addressing any underlying mental health condition.
The Respondent accepted that Ms Greentree’s psychological disorder had been diagnosed by an appropriately qualified medical practitioner in the qualifying period, but contended it had not been fully treated or stabilised as Dr Potter had recommended ongoing further treatment to assist with her condition.

The Tribunal, based upon the medical evidence supplied, including the report of Dr Moodie dated 18 November 2019 stating Ms Greentree told me that she has requested to have the diagnoses of anxiety and depression removed from her Disability Support Claim, so I have not addressed these conditions in this report, finds that this condition had not been fully treated and stabilised during the qualifying period. Therefore, no points could be awarded to this condition.
IMPAIRMENT RATING
The Tribunal has found that Ms Greentree has an overall impairment rating of 10 points, having awarded her 10 points under Table 7. Therefore, Ms Greentree does not satisfy s 94(1)(b) of the Act.
DOES MS GREENTREE HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP, Ms Greentree must not only satisfy the requirement that she has impairments that can be assigned 20 points or more under the Impairment Tables, she must also demonstrate that she has a continuing inability to work. Ms Greentree would be considered to have a continuing inability to work if she has actively participated in a POS within the meaning of s 94(3C) of the Act prior to her claim for DSP, and her impairment is, of itself, sufficient to prevent her from improving her capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a POS. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the POS requirement, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
Ms Greentree has not been found to have a severe impairment of 20 points under a single table and therefore she must have participated in a POS for the requisite 18 months prior to her claim. The Respondent provided evidence in its materials of a POS calculation which indicated that Ms Greentree had not participated at all in such a program within the required timeframe and contended she had not satisfied s 7(1) of the POS Determination. The Tribunal accordingly found Ms Greentree had not completed a POS and therefore does not satisfy s 94(3C) of the Act.
The Respondent contends that Ms Greentree had a continuing ability to work as there was no evidence that solely as a result of her impairment, arising from her conditions, she was prevented from undertaking work or training in the next two years to enable her to work. They cited her current participation in her University course as evidence that she was capable of undertaking training.
A Job Capacity Assessment undertaken on 17 January 2018 determined that Ms Greentree had a baseline work capacity of 30 hours per week, as there were no permanent medical conditions listed.
Ms Greentree contended numerous medical specialists had indicated she had no capacity for work, noting the reports of Dr Tomlinson and Dr O’Malley from the Gap Road Medical Centre which opined Ms Greentree’s condition was permanent and resulted in her being unable to work.
Based on the evidence before it, the Tribunal finds that Ms Greentree did not have a continuing inability to work to satisfy s 94(2)(a) or s 94(2)(b) of the Act. The Tribunal does not find that Ms Greentree’s impairment was of itself sufficient to prevent her from doing any work or undertaking any training to prepare her for work independently of the POS within the next two years, as she was currently undertaking a degree course at RMIT University. As such, Ms Greentree does not satisfy s 94(1)(c) of the Act.
CONCLUSION
Having carefully considered all the evidence, the Tribunal finds that at the time of her DSP application of 26 November 2018, Ms Greentree did not have the required 20 impairment points to satisfy s 94(1)(b) of the Act, nor had she completed a POS. Without having a severe impairment, Ms Greentree cannot have met all the requirements to be eligible for the DSP and therefore the application cannot succeed.
The Tribunal found Ms Greentree to be a credible witness who has attempted to find a solution to her debilitating and complex medical condition, and wishes her well with her future studies and treatment.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO Member.

............[sgd]...........................
Associate
Dated: 24 March 2020

Date of hearing: 21 February 2020

Applicant: In person

Advocate for the Respondent: Ms Shauna Roeger

Solicitors for the Respondent: Australian Government Solicitor

[2020] AATA 659

24 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	21 February 2020
Applicant:	In person
Advocate for the Respondent:	Ms Shauna Roeger
Solicitors for the Respondent:	Australian Government Solicitor