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

HHBF and Secretary, Department of Social Services (Social services second review) [2020] AATA 1998 (26 June 2020)
Division:GENERAL DIVISION
File Number: 2018/7692
Re:HHBF
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
The Hon. S Parry, Member
Date:26 June 2020
Place:Hobart

The Tribunal affirms the decision under review.
.................[sgd]...............
A G Melick AO SC, Deputy President
SOCIAL SECURITY – disability support pension – rejection – qualification – medical – whether the Applicant’s physical, intellectual or psychiatric issues are fully diagnosed, treated and stabilised – whether the conditions attract an impairment rating of at least 20 points – whether the Applicant has a continuing inability to work – decision under review affirmed.
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
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
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher and Secretary, Department of Social Services [2015] FCA 1123
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
A G Melick AO SC, Deputy President
The Hon. S Parry, Member

26 June 2020
INTRODUCTION

This is a review of a decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 21 November 2018 affirming a decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 15 March 2017.
A hearing was held on 28 June 2019 and final submissions were received on 9 September 2019. The Applicant was self-represented and the Respondent was represented by Ms Claire Campbell.
BACKGROUND
The Tribunal finds the following facts as set out in the Respondent’s Statement of Facts, Issues and Contentions, and as agreed by the parties at the hearing, to be accurate and therefore adopts them below.
FACTS
On 15 March 2017, the Applicant lodged a claim for DSP. In her claim, she referred to various medical conditions, including depression, anxiety, personality disorder, attention deficit hyperactivity disorder (ADHD), autism spectrum disorder (ASD), chronic pain, chronic cough and delayed sleep phase syndrome.[1]
[1] T24, T Documents, p 196.
The Applicant also referred to various musculoskeletal disorders, including temporomandibular pain disorder, muscle tension dysphonia, cervical degeneration with slipped disc and protruding disc, hypermobility, thoracic outlet syndrome, scapulothoracic crepitus, luxating patellas, sciatica and fibrosis of the heel.
On 27 July 2018, the Applicant attended a face to face assessment with a Job Capacity Assessor (JCA), who produced a report on 2 August 2018.[2] The JCA made the following recommendations:
(a)The Applicant's musculoskeletal disorders (chronic pain syndrome, cervical spondylosis, C4/5 anterolisthesis, C5/6 disc protrusion and thoracic outlet syndrome), were fully diagnosed, treated and stabilised, and the impairment arising from the conditions rated 10 and five points under Tables 1 and 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) respectively.
(b)The Applicant's psychological and cognitive conditions (ASD, ADHD, mixed anxiety and depression) were fully diagnosed, treated and stabilised, and the impairment arising from the conditions rated 10 points under Table 5 of the Impairment Tables.
(c)The Applicant had not participated in a program of support in the three years prior to her claim.
(d)The Applicant had a baseline and future work capacity within two years with intervention of 8-14 hours per week.
[2] T46, T Documents, p 245.
On 2 August 2018, the Applicant's claim for DSP was rejected on the basis that she had not actively participated in a program of support.[3]
[3] T47, T Documents, p 255.
On the same date, the Applicant requested review of the decision by an Authorised Review Officer (ARO) of the Department of Human Services (the Department).[4]
[4] T55, T Documents, p 309.
On 14 August 2018, an ARO affirmed the decision under review. The ARO largely agreed with the findings of the JCA, but considered the Applicant capable of undertaking work or a training activity of at least 15 hours per week within two years with intervention.[5]
[5] T48, T Documents, pp 257-263.
On 21 August 2018, the Applicant sought further review of the decision by the AAT1.
On 21 November 2018, the AAT1 affirmed the decision under review, finding the Applicant had a total impairment rating of 15 points.[6] The AAT1's findings were as follows:
(a)The Applicant's thoracic outlet syndrome was fully diagnosed, but not fully treated or stabilised, noting that the condition was subject to further investigations and surgical treatment after the claim.
(b)The Applicant's chronic pain condition was fully diagnosed, but not fully treated or stabilised, noting that the Applicant was referred to a pain specialist and was admitted to hospital for a ketamine infusion after the claim.
(c)The Applicant's cervical spondylosis was fully diagnosed, treated and stabilised, and the impairment arising from the condition rated five points under Table 4 of the Impairment Tables.
(d)The Applicant's respiratory conditions of muscle tension dysphonia and enlarged turbinates were fully diagnosed, treated and stabilised, and caused no impact on function, rating zero points under Table 8 of the Impairment Tables.
(e)The Applicant's neurodevelopmental disorders of ASD and ADHD, and mental health conditions were fully diagnosed, treated and stabilised, and rated 10 points under Table 5 of the Impairment Tables. The AAT1 considered the use of Table 7 to assess the impairment under, but ultimately considered Table 5 to more accurately capture the overall level of impairment.
[6] T2, T Documents, pp 6-20.
On 24 December 2018, the Applicant lodged an Application for Review of Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal).[7]
LAW
[7] T1, T Documents, p 5.
The Qualification Period
The Applicant lodged her claim for DSP on 15 March 2017.
The Respondent submitted that the relevant law was as set out at paragraphs [15] – [22] below and the Applicant did not suggest otherwise, although she disputed many of the Respondent’s submissions in relation thereto.
Section 2, Part 2, Clause 4 of the Social Security (Administration) Act 1999 (the Administration Act) provides:
4. (1) If:
(a)A person (other than a detained person) makes a claim for a relevant social security payment; and
(b)The person is not, on the day on which the claim is made, qualified for the payment; and
(c)Assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)The person becomes so qualified within that period;
The claim is taken to be made on the first day on which the person is qualified for the social security payment.
It follows that the Applicant's claim for DSP must be assessed based on her medical conditions as at the date of claim or within 13 weeks of that time (the qualification period) (See Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 (17 August 2009) at [7] to [8]). Accordingly, the qualification period is 15 March 2017 to 14 June 2017.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 the AAT stated (at [34]):
In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances [emphasis added].
Bobera was cited with approval in the case of Fanning and Secretary, Department of Social Services [2014] AATA 447, where DP Handley made the following pertinent observations:
[31] In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an Applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following. Evidence, such as medical reports, that come into being after the qualification period may still be relevant, but only in so far as they are referrable to the Applicant's condition during the qualification period.
[32] This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. Gyles J stated at [1] that as an Applicant's entitlement to DSP must be considered at the date of claim and within the 13 week period, "Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time".
[33] The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether "any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years" . While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the qualification period is not directly relevant to the Tribunal's decision.
In Gallacher and Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle (as discussed in Fanning and Harris above) that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the claimant's condition during the qualification period.
These decisions establish that the Tribunal can only consider the Applicant's qualification for DSP within the qualification period. If the Applicant's circumstances have subsequently changed, it may be appropriate for her to lodge a fresh claim for DSP.
Qualification Criteria for DSP
Section 94 of the Social Security Act 1991 (the Act) details the qualification for DSP and provides relevantly as follows:
94 (1) A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work·
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and...
The qualification criteria set out in section 94(1) of the Act are conjunctive, and each element must be satisfied before a person can be accepted to be qualified for DSP. As noted in the Guide to Social Security Law, at Instruction 3.6.3.05:
The determination of an impairment rating and the assessment of [continuing inability to work (CITW)] are 2 distinct assessments based on 2 different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Tables and the requirement that the person has a CITW, are of equal importance.
Note: For DSP qualification, both the minimum qualifying impairment threshold of 20 points and CITW criteria must be met and are of equal importance. Achieving an impairment rating of least 20 points does not mean that the person qualifies for DSP but merely indicates that the impairment-related qualification criterion has been satisfied. Achieving this rating does not mean the person will be unable to do any work of at/east 15 hours per week in the next 2 years, either. What it does mean is that the person's impairment may have a significant functional impact in many work situations but depending on the person's individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work.
We accept that the law as contended by the Respondent and set out above is correctly stated and apply it throughout this decision.
We also set out below relevant parts of the Impairment Tables:
6    Applying the Tables
Assessing functional capacity
1The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
2The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note:    For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
3An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note:    For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
4For the purposes of paragraph 6(3)(a) 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
Note:    For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:    For fullystabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
5In 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.
Fully stabilised
6For 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.
Note:    For reasonable treatment see subsection 6(7).
Reasonable treatment
7For the purposes of subsection 6(6), 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.
Impairment has no functional impact
8The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
9There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
APPLICANT'S EVIDENCE
The Applicant agreed that her evidence given before the Tribunal in 2018 and set out at pages 6 to 8 of the AAT1 decision was correct. Some of the salient parts of that evidence were as follows.
At that time the Applicant was studying a Diploma having commenced that course in July 2016. The course would take one year to complete on a full-time basis and the Applicant anticipated that it would take her about two and a half years.
The Applicant confirmed that she had undertaken casual work from 14 December 2012 until 16 March 2015 when she was employed serving food and drinks on an occasional basis. There was a period of a few weeks of regular work when the Applicant first commenced, but the work tapered off after this. She also undertook casual work the Australian Taxation Office (ATO) between 27 May 2013 and 20 January 2015 which was work of a clerical nature and involved updating file details, correcting errors in tax returns and managing telephone enquiries. That work, again, was intermittent but more regular than her job serving food and drinks
In some of the months she worked she would undertake up to three five-hour shifts per week but there was also a period of nine months where she was not required to work at all. During this employment, the nature of her work was restricted because she was slow in undertaking new tasks.

Towards the end of 2014 the ATO reviewed its casual staffing. Workers who were specifically trained were able to stay on whilst workers without specific training for this employment, such as the Applicant, were no longer employed.
In 2017 the Applicant started one subject in the first semester of her university course but had to withdraw due to illness.
She found difficulties with study very frustrating as she is very ambitious and would like to be able to study on a full-time basis, but is not able to so do. It upsets her that it has taken so long to complete her studies and even undertaking part-time study involved great physical and mental cost. She felt she neglected the obligation in terms of looking after her home and, at times, her personal grooming. If there was an assignment to complete she would stay up all night but then be quite unwell afterwards.
The Applicant found it difficult to pay attention during lectures and tutorials especially when experiencing pain or being sleep deprived. Her current lectures and tutorials have not required concentration for periods greater than one and a half hours, but in one of her subjects her lecturer suggested that another student assist her with her study.
The Applicant found it difficult to stand for long periods and needs to sit down or lean against something.
The Applicant was able to drive, but at times could become very impatient in traffic. She was very fearful about traffic accidents, hence drove with extreme vigilance. She was able to undertake her own shopping but disliked going to the supermarket and would sometimes have takeaway meals for many days in a row.
She sometimes only had one meal a day and found particular tasks difficult such as changing sheets or vacuuming. The difficulties with these tasks arose in particular because of the pain and discomfort and she also struggled with fatigue which she had experienced for many years.
The Applicant had travelled to New South Wales and Victoria for various investigations and procedures and was able to travel by herself.
The Applicant noted some improvement in her condition subsequent to her bilateral scalenotomy operation, but over the following months difficulties re-occurred. Overall, some symptoms improved but others were worse.
She obtained some benefit from the ketamine infusion but she still continued to have pain symptoms.
At that time she was feeling better than previously and there were some occasions when she felt really well. However, on other occasions she felt unwell and had to spend all day in bed. She found the uncertainty and unpredictability of her conditions very distressing.
The following evidence relating to the qualification period was given during cross-examination:
·The Applicant was capable of driving to the shop, parking the car and walking from the car park to the supermarket. She could also walk around the aisles of the supermarket despite a sensory overwhelm. She could then carry her groceries to the car, unload them and take them into her house.
·She has two dogs and two cats but had a pet groomer come every week to groom them because she could not manage for herself.
·She was able to book flights to go to the mainland for consultations, catch the flights and attend the consultations but not without emotional outbursts in public and ‘things like that’.
·She confirmed she had been able to obtain a bachelor degree and a post-bachelor diploma. She studied during the qualification period but had to withdraw and eventually completed the diploma in December 2018.
During the hearing the Applicant was challenged about some inconsistencies in prior statements, but overall we are satisfied that she was giving evidence that was truthful to the best of her ability bearing in mind that she becomes very confused about dates and times.
To her credit, despite being aware of the requirements set out in the Impairment Tables, she gave answers which did not assist her case.
She was also taken to her website which suggested she may be more capable than she was indicating, but we are of the view that it was on her website, rather than in her evidence, that she was exaggerating her abilities in an attempt to obtain work.
She had been in a band but the last show was in July 2016 which was just a few weeks after symptoms first came about and worsened.
RESPONDENT’S CONTENTIONS AS TO FACTS
Set out below is a summary of the Respondent’s contentions:
Paragraph 94(1)(a) - a physical, intellectual or psychiatric impairment
The Respondent accepted that, during the qualification period, the Applicant suffered from a number of physical and psychiatric impairments such that she satisfied paragraph 94(1)(a) of the Act.
The Respondent referred to the Impairment Tables set out at paragraph 24 above.
Paragraph 94(1)(b) - a rating of 20 points or more under the Impairment Tables
When applying the Impairment Tables, the impairment must be assessed on the basis of what the person can, or could do. Assessment must not be made on the basis of what the person chooses to do or what others do for them.[8]
[8] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, paragraph 6(1).
The existence of a diagnosed condition will not necessarily result in an impairment to which an impairment rating can be assigned under the Impairment Tables. Where a medical condition has no functional impact, no rating will be assigned.[9]
[9] Ibid, paragraph 6(8).
THORACIC OUTLET SYNDROME
The Respondent contended that the Applicant's thoracic outlet syndrome was fully diagnosed, but not fully treated or stabilised during the qualification period and argued that on that basis, an impairment rating cannot be assigned.
The Respondent was obviously relying upon, amoung other things, paragraphs 4(a),(b) and (c) of the Impairment Tables as set out above.
The Respondent’s contention was made on the basis that, during and subsequent to the qualification period, investigations and treatment for the Applicant's syndrome remained ongoing such that she had not yet undertaken all reasonable treatment.
Because we have found this to be a difficult case due to the overlaying symptomology, we note below the Respondent’s fulsome summary (with some minor amendments) of events that took place around the qualification period. Relevent exhibits/reports are footnoted.
·The Applicant sought specialist opinion and underwent further investigations to establish the type of thoracic outlet syndrome she was affected by.[10] As noted by the Applicant herself, the neurogenic form of thoracic outlet syndrome was ruled out, but signs of the vascular form were found during an examination on 8 March 2017,[11] being only a week prior to the claim.[12] It was not until 2 May 2017 that a vascular ultrasound was undertaken, which found evidence of thoracic outlet compression of the subclavian arteries and vein.[13]
·After establishing a definitive diagnosis, the Applicant sought further specialist input to determine the reasonableness of surgical intervention. The reports of Mr Campbell,[14] vascular and endovascular surgeon, and Dr Stewart,[15] plastic and reconstructive surgeon, dated 2 May 2017 respectively are relevant in this respect.
·The Applicant underwent surgery in the form of a bilateral scalenectomy for thoracic outlet syndrome on 26 May 2017, performed by Dr Wallace.[16]
·The Applicant attended upon Dr Ram, plastics registrar, for a three month post-operative review on 22 August 2017, being outside the qualification period.[17] The Applicant reported improvement in the range of motion in her arm, but continued 'compression'. The Applicant requested further surgical intervention in the form of a pectoralis minor tenotomy, which was refused by Dr Ram. He encouraged her to seek a second opinion from the general or vascular surgical speciality.
·The Applicant sought further specialist opinion regarding the requested procedure, consulting both Dr Wallace and Dr Leslie, endovascular and vascular surgeon.[18] Dr Wallace referred the Applicant for MRI scanning at the time he reviewed her on 24 August 2017, and subsequently referred her to his colleague at the Royal Melbourne Hospital - Dr Goldblatt, cardiothoracic surgeon - who was reported to have considerable experience in the treatment of the condition.[19] Similarly, Dr Leslie referred the Applicant for post-operative imaging, and, in a subsequent consultation on 29 August 2017, requested that she return in six months' time to consider further surgery.[20]
·The Applicant commenced a post-operative physiotherapy program at AIICare in August 2017, being outside the qualification period.[21] AIICare reported that, since the surgery, the Applicant had also sought further interventions, including Botox injections to her pectoralis minor and jaw muscles.
·The Applicant ultimately received a ketamine injection to reduce the sensitivity and reactivity of her central nervous system on 28 May 2018, requiring hospital admission.[22]
[10] See for example T20, T Documents, pp 163-164.
[11] T23, T Documents, pp 169-170.
[12] T51, T Documents, p 270.
[13] T30, T Documents, p 211.
[14] T31, T Documents, pp 212-213.
[15] T32, T Documents, pp 214-215.
[16] T33, T Documents, p 216.
[17] T34, T Documents, pp 218-219.
[18] T37, T Documents, pp 226-227.
[19] T39, T Documents, p 230.
[20] T40, T Documents, p 232.
[21] T43, T Documents, p 239.
[22] T44, T Documents, p 241.
The Respondent contended that, given the extent of opinions, investigations and treatment approaches sought during and subsequent to the qualification period, it could not be said that the Applicant's thoracic outlet syndrome was fully treated and stabilised during the qualification period. This is particularly so in circumstances where the Applicant initially reported an improvement in her symptomatology following the scalenectomy in May 2017,[23] indicating that further functional improvement could be anticipated.
[23] See for example, T2, T Documents, p 14 and T34, T Documents, p 218.
The Applicant’s position in relation to the thoracic outlet syndrome was that although the Respondent contended that the treatments and medical investigations for thoracic outlet syndrome were ongoing, therefore excluding the condition from being fully treated and stabilised, the following factors were also relevant:
a.The prognosis prior to, during, and after the qualification period was that no treatment or investigation was considered likely to significantly improve functional capacity within the two years from the qualification period.
b.Treatments for thoracic outlet syndrome aim to relieve constriction in the brachial plexus, increasing the space for the neurovascular bundles. The same approach applies, regardless of whether the condition is vascular or neurogenic. It can be important to distinguish the type of thoracic outlet syndrome as vascular cases may be more urgent, as there is an increased risk of severe vascular events. Therefore, further investigations would not alter the treatment approach, only the treatment urgency. Expert legal opinion states:
…for a condition to be rated it does not necessarily require a precise diagnosis but rather medical satisfaction that the condition is well established.
c.At the beginning of the qualification period, the diagnosis of thoracic outlet syndrome had already been made by two independent experts. A physiotherapist at All Care Physiotherapy first made the diagnosis in November 2013, and this was confirmed by rheumatologist Dr Hilton Francis in February 2014 (see his written reports previously submitted for details).
d.Although identifying the subtype of thoracic outlet syndrome was important, doing so was never going to improve the prognosis in terms of functional capacity. (In fact, the prognosis actually worsened as a result of the investigations, since the subtype was indeed vascular). Dr Gartlan stated in the hearing that she was not surprised that the surgery did not improve pain symptoms (p4/30). She also agreed that the surgery was mainly performed to prevent vascular complications, rather than it being reliably likely to substantially improve function (p4/35-40).
2.    Dr Gartlan confirmed that during the qualification period, she did not believe physiotherapy would be reliably likely to substantially improve functioning (p5/25).
3.    In fact, Dr Gartlan confirmed that no treatments were reliably likely to substantially improve functioning (p7/25-35) and that any treatments and investigations undertaken were primarily intended to prevent functional deterioration.
4.    The Secretary argued that Dr Gartlan was “unsure” of the impact the Applicant's scalenotomy would have on her functional capacity.
a.If the Tribunal accepts this, it should note that such uncertainty supports the idea that the treatment was not reliably likely to significantly improve functioning.
b.Dr Gartlan has expressed a healthy level of uncertainty around predicting surgical outcomes, especially given that scalenotomies are not performed in Tasmania. However, the legislation is very clear that a reasonable treatment must be reasonably accessible, regularly performed, and reliably likely to significantly improve functioning.
c.The Applicant contends that Dr Gartlan has clearly communicated that she did not believe there were any treatments available that would be reliably likely to significantly improve functioning.
5.    Pectoralis minor syndrome was first considered in August 2017, which was after the qualification period. Compression of the axillary artery by the pectoralis minor muscle is a rare condition that is distinguishable from compression of the subclavian artery in the costoclavicular space. Investigations showed that this separate disease mechanism was absent. All the doctor consults in August 2017 related to investigating pectoralis minor, and should therefore be considered irrelevant to this case.[24]
[24] Applicant’s Closing Written Submissions, filed 9 September 2019, pp 1-2.
Regarding the cross examination of Dr Gartlan, the Applicant strongly objected to any line of questioning by the Repsondent involving the term “reasonable treatment”. The Applicant submitted that any medical practitioner questioned in this way may understandably feel cornered into an affirmative response in order to avoid implicating themselves. Dr Gartlan clearly stated that during the qualification period, there was no treatment that would be reliably likely to substantially improve functional capacity. Therefore, in accordance with the legislation, none of the treatments undertaken during or after the qualification period could be categorised as “reasonable”.
As noted above, the Applicant placed considerable weight upon the comments by Dr Gartlan, who had been her general practitioner since at least 2012, to the effect that she did not believe there are any treatments available that would be likely to improve the Applicant's functioning.
In a report dated 12 April 2017, Dr Gartlan noted that chronic neck pain from cervical spondylosis was another major medical issue in the Applicant's life:
“She describes severe, daily neck pain over last few years. She see many specialists for the pain over the last six months (neurosurgeons, orthopaedic surgeon and cardiothoracic surgeon). The conclusion is that she has cervical spondylosis which does not require surgical intervention. Instead we are currently exploring analgesic options. She has a new referral in the process to pain specialist, Dr Chris Orlikowski.”[25]
[25] T29, T Documents, pp 208-210.
In a report dated 29 August 2018, Dr Gartlan opined that the Applicant “would not have benefited from program support, as it is likely a program may have exacerbated her medical conditions”.[26]
[26] T49, T Documents, pp 264-265.
When questioned by the Applicant during the hearing, Dr Gartlan noted that she was not convinced that the Applicant’s symptoms were going to improve completely if she had surgical intervention.
When cross-examined, Dr Gartlan agreed that it was around May 2017 when the exact form of thoracic outlet syndrome became known and that prior to knowing its exact form, it could not be treated properly.
She also agreed that the prognosis for the thoracic outlet syndrome was unknown as at May 2017, which, as noted above, was during the qualification period.
During the cross-examination the Applicant objected to questions being asked of Dr Gartlan about a ketamine infusion arranged by the Applicant’s pain specialist, Dr Chris Orilikowski after which her symptoms improved.
The Applicant contended that the question was based upon hindsight, bearing in mind that she did not even know that, during the qualification period, ketamine infusion was a treatment. She thought that it was an illegal drug that was not available to anyone and hence there was no basis upon which to ask questions about ketamine infusions.
The Tribunal indicated that we would allow the questions subject to any further objections raised by the Applicant after provision of the transcript. In the absence of any further substantive objection, and considering that the material to which the objection was raised only has minor relevance to the matters we have considered, we allowed the question and answer to remain.
In re-examination, Dr Gartlan noted that although surgery would be important for vascular supply to the Applicant's arm and hence would be a good outcome in terms of the health of the upper limb, she did not feel it was going to necessarily change the Applicant’s pain.
Before resolving the different positions advanced and set out above we refer to some of the evidence which is summarised below:
Vascular and endovascular surgeon Mr William Campbell provided a report dated 2 May 2017 in which he noted:
“I understand there has been some concern about offering her any surgical intervention and I had the same misgivings about this but when I listen to her story she does give an interesting story of possible neurogenic condition that is sometimes seen in patients who do have neurogenic thoracic outlet syndrome. The problem with making this diagnosis is that a lot of practitioners try to hang their hat on nerve condition studies or MRIs or hard neurological signs but this isn't often helpful in patients who do have significant neurogenic thoracic outlet problems. I have had patients who present with the constellations of symptoms that [HHBF] has who have done very well after thoracic outlet decompression despite there not being a lot of hard objective evidence to support the diagnosis.
From a clinical and ultrasound point of view she did not show any signs of compression of the subclavian artery with her arm in external rotation and abduction. All of the central arteries and veins were normal as well. She did mention to me that one of the cardiothoracic surgeons who saw her thought that she did lose her pulse in the stick up position. But I have told her that we have not been able to confirm that on her ultrasound testing. I think this finding is also in keeping with her CT scan, which shows no evidence of compression of her left subclavian artery.
I have told [HHBF] that she needs to have exhausted every investigation and opinion from people who may be able to help her with her differential diagnoses and also physical therapies prior to making any arrangements for surgical decompression of her left thoracic outlet. If she were to have this operation it would be by dividing the scalenus muscles and removing the first rib to give the space in the thoracic outlet a larger area for the structures to be free of any irritation.
The easiest thing to do is to avoid any interventions but have asked her what she would do she could not have the symptoms improved and she offered the opinion that she would go to Switzerland and take part in a euthanasia program that is available there. This gave me some insight into her desperation to overcome her symptoms but also may be a reflection of her theatric nature.
At the end of the day if there is nothing else that she can find to help her with her symptoms and there is the possibility of a neurogenic thoracic outlet syndrome being present then I would not deny her surgical intervention with her understanding that there will be absolutely no guarantee of improving the situation. I will wait for everyone else to see her decide what they want to do and if we hit a wall I suppose it will be up to me to take on her case and see if I can help out. The only other option and the easier option is to decline her any intervention.”[27]
[27] T 31, T Documents, pp 212-213.

In a report dated 2 May 2017, Mr David Stewart of Sydney Hand Surgery Associates noted:
“I think [HHBF] has some objective evidence of thoracic outlet syndrome on the left side. The loss of some power in her intrinsic muscles along with some reduced sensation in a C8 and T1 distribution along with the vascular studies suggest some compression of the brachial plexus particularly in the lower trunk as well as the subclavian artery.
Given [HHBF]’s symptoms are predominantly lower plexus and vascular, I think probably the first intervention she should consider would be a transaxillary first rib excision. I think this would be more likely to address [HHBF]’s symptoms than her supraclavicular decompression of the brachial plexus with a scalenectomy. I have recommended that [HHBF] see Dr Michael Neale for consideration of this procedure.”[28]
[28] T 32, T Documents, pp 214-215.
The Tribunal notes that all the above reports and evidence make it clear that during the qualification period there was no consistent diagnosis or recommended treatment/intervention. This supports the Respondent's contention that, during the qualification period, the Applicant's thoracic outlet condition was not fully diagnosed, treated and stabilised.
Much of the Applicant’s submissions relate to reports and matters after the qualification period and even Dr Gartlan noted that the prognosis was unknown as at May 2017 (see paragraph [62] above) so the condition could not have been fully treated and stabilised during the qualification period.
Accordingly, we find that the Applicant’s thoracic outlet syndrome, although fully diagnosed, was not fully treated and stabilised during the qualification period.
Having found that the Applicant’s thoracic outlet sydrome was not fully diagnosed, treated and stabilised it is not necessary to proceed to find an impairment rating but we will do so in relation to this condition to assist the Applicant in better understanding the issues.
For clarity, we note at this juncture that Table 1 (a) of the Impairmant Tables states:
There is a severe functional impact on activities requiring physical exertion or stamina.
(a)The person usually experiences symptoms (e.g. shortness of breath, fatigue,cardiac painwhen performing like physical activities and, due to these symptoms, the person is unable to:
(i)     walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance;
(ii)    walk (or mobilise in a wheelchair) from the car park into a shopping centre or supermarket without assistance; or
(iii)   use public transport without assistance; or
(iv)   perform like day-to-day household activities (e.g. folding and putting away laundry or light gardening); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for continuous shift of at least 3 hours.
The Applicant contended that 20 points should be assigned under Impairment Table 1 for the following reasons:
a.“The “unable” descriptor relates to usually experiencing symptoms such as pain and fatigue whilst carrying out tasks. The question of assistance does not apply to descriptor (1)(a)(iv), and is therefore irrelevant within the legislation.
b.The legislation clearly states that in determining whether or not a descriptor applies, the person must be able to do the activity normally and on a repetitive or habitual basis. The Applicant has been unable to perform day to day household activities on a repetitive or habitual basis since symptoms became severe in June 2016.
c.The Secretary’s claims in relation to descriptor (1)(a)(iv) are absurd. In actual fact, Dr Gartlan stated that assistance was “certainly probably” required for household tasks and day to day functioning (p7/15). This is above and beyond what the legislation requires, since descriptor (1)(a)(iv) does not mention anything about needing assistance”.[29]
[29] Applicant’s Closing Written Submissions, filed 9 September 2019, p 2.
The Applicant reported to the AAT1 that she lived alone, was able to regularly attend lectures and tutorials at university, and could shop, drive and travel interstate alone for treatment.[30]
[30] T2, T Documents, pp 13-14
There is evidence that she was able to walk around a shopping centre/supermarket, to walk from a carpark into a shopping centre/supermarket, to use public transport or perform light day-to-day household activities during the qualification period.
Similarly, the Applicant does not satisfy paragraph (1)(b) of the 20 point rating under Table 1 as there is no corroborated evidence to suggest she would have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours.
Although the Applicant suggested that one-and-a-half hours was her concentration limit, she demonstrated an ability to engage in part-time university studies of 12 contact hours per week during the qualification period.[31]
[31] T46, T Documents, p 249.
She also held herself out as being available for hire as a session vocalist, songwriter, sound engineer, vocal teacher and music critic on her online business profile,[32] and reports to work as a sound engineer at a local hotel on her website.
[32] Secretary’s Statement of Facts Issues and Contentions, 14 May 2019, Attachment A.
Accordingly, applying the criteria in Table 1, the Tribunal finds an impairment rating 10 points.
CHRONIC PAIN
As previously mentioned, the Tribunal had found there to be significant overlaying between some of the Applicant’s conditions and in particular between her thoracic outlet syndrome and her chronic pain condition.
The Respondent contended that the Applicant's chronic pain condition was fully diagnosed, but not fully treated or stabilised during the qualification period and that on that basis, an impairment rating cannot be assigned.
It was also contended that a number of the abovementioned treatment approaches pursued by the Applicant in relation to her thoracic outlet syndrome were also reasonable treatment for her chronic pain. This included the ketamine infusion on 28 May 2018, being almost one year outside the qualification period.
The Applicant was referred to pain specialist, Dr Orlikowski, in April 2017[33] and reported to have first attended upon him in August 2017, being outside the qualification period.[34] At that time, her opiate medication was changed to Palexia, and the first script was dispensed on 11 August 2017.[35]
[33] T29, T Documents, p 208.
[34] T2, T Documents, p 14.
[35] T2, T Documents, p 15.
This evidence, together with the evidence referred to above in relation to the Applicant’s thoracic outlet syndrome, makes it clear that even if her chronic pain syndrome was fully diagnosed, it was not fully treated and stabilised during the qualifiaction period.
Even if the Applicant’s condition was fully diagnosed, treated and stabilised during the qualification period, once again for the reasons set out at [74] – [81] above the Tribunal is unable to find sufficient evidence to support findings that the Applicant met any or sufficient descriptors for a 20-point rating under Table 1 during the qualification period.
CERVICAL SPONDYLOSIS
The Respondent contended that the Applicant's cervical spondylosis was fully diagnosed, but not fully treated or stabilised during the qualification period and, on that basis, an impairment rating cannot be assigned.
That contention was made on the basis that the Applicant attended upon a pain specialist, Dr Orlikowski, and was prescribed new opiate medication outside the qualification period, which was reasonable treatment for the purposes of both her chronic pain and spinal limitations. Further, the Applicant commenced physiotherapy in August 2017, which involved devising a home-based exercise program focusing in part on neck stabilisation.[36]
[36] T43, T Documents, p 239.
The Respondent contended that the impairment arising from the Applicant's cervical spondylosis cannot be separated from that arising from her chronic pain and thoracic outlet syndrome such that a reliable impairment rating can be assigned under Table 4. The Applicant's general practitioner, Dr Gartlan, reported the Applicant to suffer from chronic pain as a result of both her cervical spondylosis and thoracic outlet syndrome, which restricted her ability to sustain overhead activities.[37]
[37] T45, T Documents, p 244.
The Respondent further contended that the impairment caused by the Applicant's cervical spondylosis was at best moderate, in the event that the condition is considered fully diagnosed, treated and stabilised, and distinguishable from her other physical limitations.This is consistent with the findings of the JCA, ARO and AAT1. The Respondent contended that the Applicant's primary limitations appear to be due to her chronic pain and thoracic outlet syndrome.
The Applicant’s position regarding her cervical spondylosis was outlined in her closing written submissions as follows:
1According to the Secretary, cervical spondylosis was not fully treated and stabilised during the qualification period, thereby excluding it from being assessed under the Impairment Tables. However;
(a)Prior to the qualification period, cervical spondylosis had been fully investigated and there was certainly a consensus amongst the treatment team that no known treatment would be reliably likely to significantly improve functional capacity. Therefore, according to legislative definitions, cervical spondylosis was fully diagnosed, treated, and stabilised at the time of application.
(b)Dr Gartlan mentioned cervical spondylosis being a “contributor” to pain. This is indicative of the sum being greater than its parts. There is of course always uncertainty in life, and it is not unusual for doctors to disagree, particularly when it comes to complex cases. However, Dr Gartlan clearly communicated that no significant functional improvement could be expected within two years of the qualification period, and it is now evident that her prediction was accurate.
2Physiotherapy had been undertaken at All Care Physiotherapy for neck pain since November 2013. Cervical spondylosis was first diagnosed in February 2015 by rheumatologist Dr Hilton Francis, and his correspondence about this was promptly provided to All Care Physiotherapy. Having undertaken over three (3) years of physiotherapy prior to the qualification period, with a primary focus on treating neck pain and instability, Dr Gartlan testified that there was no reason to believe that further physiotherapy would be reliably likely to significantly improve functional capacity (p5/25).
3Dr Gartlan wrote the referral to pain specialist Dr Orlikowski because she had suggested that Palexia might produce less dependency than Targin, but she wanted Dr Orlikowski’s opinion on whether or not switching medication was appropriate. Palexia and Targin are both opiates, so treatment with opiates was already underway during the qualification period. There was never any suggestion by anyone in the treatment team that a change in medication would be reliably likely to significantly improve functioning; in fact Dr Gartlan testified that the change in medication was primarily done to reduce the risk of dependency and was not reliably likely to substantially improve functioning (p6/40).
4Ketamine infusion was first considered in 2018, about a year after the DSP claim was first submitted. Prior to this, the Applicant was unaware that treatment option existed, as it is more commonly known for its use in veterinary medicine and as an illicit substance. The Applicant first heard about it from a friend in 2018 and then raised the possibility with her treatment team. She had to attend multiple appointments with the pain specialist and had her GP and physiotherapist write additional him letters to help persuade him to offer the treatment, because he did not think it would be effective. Although it offered more relief than any other treatment, it was did not cause a significant improvement in functional capacity.
5In the hearing, the term most used by Dr Gartlan in relation to the referral to Dr Orlikwoski is “pain management”. This reflects her opinion that she did not expect a significant functional improvement; rather the referral was for the purpose of pain management.[38]
[38] Applicant’s Closing Written Submissions, filed 9 September 2019, pp 3-4.
The Tribunal is of the opinion that there is merit in the Applicant’s submission in relation to her cervical spondylosis being fully treated in that, on balance, the medical opinion was that no treatment was likely to improve functional capacity. However, the pain arising therefrom had yet to be fully delat with as evidenced by the ketamine injection after the qualifying period.
Even if the Applicant’s condition was fully diagnosed, treated and stabilised during the qualification period, once again for the reasons set out at [74] – [81] above the Tribunal is unable to find sufficient evidence to support findings that the Applicant met any or sufficient descriptors for a 20-point rating under Table 1 or any other Table during the qualification period.
NEURODEVELOPMENTAL DISORDERS AND MENTAL HEALTH CONDITIONS
An impairment rating for the Applicant’s neurodevelopment disorders and mental health conditions could be assessed under Tables 5 or 7.
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.
Table 7 is to be used where the person has a permanent condition resulting in functional impairment relating to neurological or cognitive function.
There is a significant overlap in the various functional activity domains described in each of the above Tables. The Tribunal has to be careful to avoid double counting even though the consideration can be given to the application of both tables consistent with subsections 10(3),(4),(5),and (6) of the Impairment Tables.
The Respondent conceded that the Applicant's ASD, ADHD and mixed anxiety and depression were fully diagnosed, treated and stabilised during the qualification period.
In respect of the appropriate impairment rating, the Respondent noted that given the impact on both the Applicant's mental health and cognitive functioning, consideration can be given to assessing the functional impairment under either Tables 5 or 7 of the Impairment Tables. However, the Respondent contended that both the mental health condition and the ASD/ADHD cause functional impairment across similar domains - that is, in the Applicant's concentration and task completion, social and interpersonal interactions, behaviour, planning and decision-making, and work/training capacity. The Respondent submitted that to assign a rating under both Table 5 and Table 7 would result in the impermissible double counting of the same functional impairment as noted at paragraph [98] above.
In this instance, however, the Respondent contended that, regardless of the application of either Table 5 or Table 7, the impairments arising from the Applicant's conditions cannot attract an impairment rating of more than 10 points during the qualification period.
The Tribunal notes that under Table 5 of the Impairment Tables the 20-point descriptor states:
There is a severe functional impact on activities involving mental health function.
1The 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.
On the basis of the evidence set out above, the Tribunal assesses the impairments in (a) and (b) to be no more than moderate.
The Tribunal also notes that the Applicant was able, although with some difficulty, to perform as a member of a band and hence finds, applying (c), that the rating matching her interpersonal relationships to be moderate rather than severe.
Although there are difficulties with the Applicant's concentration and task completion, the Applicant has been able to, although with some difficulty and over a longer than usual period of time, complete a degree and a diploma. Accordingly, applying (d) the Tribunal finds the Applicant’s impairment to be no more than moderate.
The Tribunal is mindful of the fact that severe pain caused the Applicant to withdraw from a semester of university study during the qualification period. However, the Applicant has been able to attend education, training and work over significant periods despite her mental health conditions. Accordingly, the Tribunal is unable to assess the impairment pursuant to (f) any more highly than moderate.
The Tribunal does not accept that a severe impairment under Tables 5 or 7 and the abilities referred to by the Applicant above are not mutually exclusive and having already considered Table 5 will assess the Neurodevelopmental disorders and mental health conditions under Table 7 to see if a higher impairment rating to the one given under Table 5 can be achieved.The Tribunal is mindful that Dr Gartlan has assigned an impairment rating of 20 points pursuant to Table 7 but notes that to achieve a 20-point rating the following must apply:
There is a severe functional impact resulting from a neurological or cognitive condition.
1The 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.
(i)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.

In order to be assigned an impairment rating of 20 points under Table 7, a person must require frequent (at least once a day) assistance and supervision during the qualification period (descriptor (1)). There is no evidence that the Applicant required assistance from another person at least once a day to complete activities.
To the contrary, and as noted above, the Applicant was independent in self-care, living independently, and was able to drive herself, undertake her own shopping and travel interstate for treatment, as well as arranging her own multiple specialist opinions and consultations.
The Applicant was also capable of undertaking part-time study during the qualification period, as well as undertaking medical research, and being the a member of a band.[39] She also holds herself out as being available for hire as a session vocalist, songwriter, sound engineer, vocal teacher and music critic on her online business profile,[40] and reports to work as a sound engineer at a local hotel on her website.[41] Finally, the Applicant has demonstrated an ability in the past to engage in employment on an ongoing basis, such as for the Australian Taxation Office between 27 May 2013 and 20 January 2015, and her employment between 14 December 2012 and 16 March 2015.[42]
[39] Secretary’s Statement of Facts Issues and Contentions, 14 May 2019, Attachment A.
[40] Ibid.
[41] Ibid.
[42] T2, T Documents, p 12.
The Applicant’s position in regards to her Neurodevelopmental disorders and mental health conditions was as follows:
1.    Throughout this process, the Secretary has attempted to discredit me because for being motivated and hard working. As an Australian citizen and taxpayer, I am disappointed with Centrelink’s aggressive approach, which appears to target the most vulnerable people in our society. It feels as though Centrelink is punishing me for trying: whether it be trying against all odds to get well, or putting great effort into doing as much work or study as I can, in an effort to become a contributing member of society. I am attaching my ATO issued Notices of Assessment for the relevant periods, which clearly demonstrate that I have not earned any salient income since well prior to the qualification period.
2.    Having a severe impairment under Table 5 and having the ability to travel, arrange appointments, understand complex medical information, and a prior work history are not mutually exclusive. The Applicant has been transparent about her functional capacity throughout this process, and has never claimed to be unable to undertake the aforementioned. The legislation clearly outlines the criteria that need to be satisfied, and the Applicant has carefully addressed these criteria and demonstrated that there is a severe impairment. Therefore, the Applicant objects to all attempts by the Secretary to point out capabilities that are not in dispute, as they are irrelevant.
3.    Dr Gartlan testified that the Applicant would struggle to improve her work and training capacity, as much from the Autism Spectrum Disorder as from the chronic pain syndrome (P13/40).[43]
[43] Applicant’s Closing Written Submissions, filed 9 September 2019, p 4.
The Tribunal is satisfied that the Applicant's functional impairment is significant, but there is no evidence to suggest that the Applicant needs assistance and supervision from another person at least once a day, although the Tribunal is mindful of the fact that the Applicant does neglect her self-care at times.
Accordingly, a rating of 20 points cannot be applied, but the Tribunal finds the Applicant has a moderate functional impact in that she needs occasional (less than once a day) assistance with day-to-day activities.
Accordingly, without a severe rating on most of the above criteria, the Tribunal cannot assign a rating of 20 points under either Table 5 or 7 but finds that the requirements for a 10 point rating have been met and assigns such a rating under Table 5 noting that to assign a rating under both tables would result in an impermissible double counting of the same functional impairment, see s 10(5) and (6) of the Impairment Tables which state:
Multiple conditions causing a common impairment
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Other conditions
In respect of any other conditions raised by the Applicant, including respiratory, sleep and musculoskeletal disorders, the Respondent contended that there is insufficient medical evidence to make an assessment as to whether the conditions were fully diagnosed, treated and stabilised during the qualification period.
The Respondent also submitted that there is no corroborative medical evidence of the extent of any functional impact as at the qualification period.
The Tribunal agrees that, in relation to the above conditions, that there was very little evidence to allow an appropriate assessment as to whether any of the conditions were fully diagnosed, treated and stabilised during the qualification period and the necessary threshold to allow consideration of impairment ratings has not been met.
The Applicant submitted the following regarding her other conditions:
2. There is no credible evidence that, during the qualification period (or anytime thereafter), any known treatment would be reliably likely to significantly improve the Applicant’s functional capacity within two years.
3. In addition to the substantial body of evidence demonstrating the Applicant’s struggles, the GP overseeing her care long term assessed her as having 20 points under Impairment Table 1, and 20 points under Impairment Table 5. The GP testified that during the qualification period, she did not expect the functional capacity to improve significantly, regardless of any available treatments and investigations, which were more aimed at pain management and preventing further functional deterioration.
4. Dr Gartlan further testified that there had not been an overall change in functional capacity since the qualification period. The independent medical assessor for the subsequent DSP application assigned 30 points under Impairment Table 1. Clearly, Dr Gartlan’s expertise and regular experience with the Applicant allowed her to make accurate predictions in relation to this matter.[44]
[44] Applicant’s Closing Written Submissions, filed 9 September 2019, p 5.
The Tribunal accepts that there was evidence suggesting that no known treatment would have been likely to significantly improve the Applicant’s functional capacity. However, that does not overcome the fact that the Tribunal, when applying the Impairment Tables, has found that the Applicant’s impairment rating does not attract the necessary 20 points.
The Tribunal has referred to the evidence of Dr Gartlan and what it considers to be the relevant medical evidence together with the Applicant’s evidence. It is bound to make its own analysis of the evidence and has reached conclusions which appear to differ from those of her General Practictioner. However, much of Dr Gartlan’s evidence relates to periods outside the qualification period.
OVERALL IMPAIRMENT RATING
The only condition which the Tribunal has found to be fully diagnosed,treated and stabilised attracted an impairment rating of 10 points, so Applicant fails to satisfy paragraph 94(1)(b) of the Act.
Accordingly, the Tribunal finds it unnecessary to consider the question of contuing inability to work and the submissions advanced thereto.
The Tribunal affirms the decision under review.

I certify that the preceding 123 (one hundred and twenty three) paragraphs are a true copy of the reasons for the decision herein of and the Hon S Parry, Member.

...........................[sgd]...........................
Associate
Dated: 26 June 2020

Date of hearing: 28 June 2019

Date final submissions received: 9 September 2019

Applicant: In person

Solicitor for the Respondent: Ms C Campbell

[2020] AATA 1998

26 June 2020

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Statutory Interpretation

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Procedural Fairness

Standing

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Date of hearing:	28 June 2019
Date final submissions received:	9 September 2019
Applicant:	In person
Solicitor for the Respondent:	Ms C Campbell