Kennedy and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1638

Kennedy and Secretary, Department of Social Services (Social services second review) [2020] AATA 1638 (4 June 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1149
Re:Sheryl Kennedy
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:4 June 2020
Date of written reasons: 4 June 2020
Place:Adelaide

The decision under review is affirmed.
............[sgnd]............................................................
Member I Thompson
Catchwords
SOCIAL SECURITY – disability support pension – whether medical conditions fully diagnosed, fully treated and fully stabilised during the qualification period – whether an impairment rating of 20 points or more existed under the Impairment Tables – decision under review affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
Cases
Gallacher v Secretary, Department of Social Services (2015) FCA 1123.
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.
Re Fanning and Secretary, Department of Social Services [2014] AATA 447.
Secretary, Department of Social Services and Seyfang [2016] AATA 243.
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
4 June 2020
INTRODUCTION

The applicant Sheryl Kennedy lodged a claim for disability support pension (DSP) on 21 December 2016. Centrelink rejected the claim in the first instance and Ms Kennedy requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision. Ms Kennedy requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was affirmed. Ms Kennedy applied to the General Division of the Tribunal for a second review.
The hearing took place on 2 March 2020. Ms Kennedy attended the hearing and was self‑represented. Mr Kennedy attended in support of her. Ms Moran represented the respondent, the Secretary, Department of Social Services.
Ms Kennedy gave evidence. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.
Ms Kennedy is now 55 years old. In her claim for DSP she listed her disabilities, illnesses and injuries which included Crohn’s disease, severe migraines, vitreous detachment, conditions affecting the neck and arms, major depressive disorder, back pain and left sciatica, nausea and exhaustion.[1]
[1] T9 p116.
LEGISLATION AND ISSUES
Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Qualification of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The qualification period in this case is 21 December 2016 to 22 March 2017.
Further, s 94c of the Act requires that a person has a continuing inability to work which will be satisfied if:
(i)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
(ii)They have actively participated in a “program of support”.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
Accordingly, Ms Kennedy will qualify for the DSP if the Tribunal is satisfied that she has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the impairment tables and, finally, that she has a continuing inability to work.
The Secretary accepted that Ms Kennedy suffers from impairments and therefore satisfied s 94(1) (a) of the Act.
In the statement of facts and contentions, the Secretary contended that none of Ms Kennedy’s impairments could attract any impairment rating under the Impairment Tables.
Accordingly, the Secretary contended that Ms Kennedy did not have a continuing inability to work and was not qualified for the DSP during the qualification period.
Ms Kennedy lodged a statement of issues facts and contentions (Exhibit 5) in which she stated that she was unable to work primarily because of Crohn’s disease and most of the other impairments, namely depression, stress, anxiety and migraines, were by-products of the primary condition. She raised questions about reports by a job capacity assessor, she contended that she had undertaken reasonable treatment for Crohn’s disease and that she not be prejudiced for declining to participate in various drug trials for Crohn’s disease. She asserted that she had not worked since 2004 because of Crohn’s disease and associated symptoms and she cited reports by her general medical practitioner confirming her continuing inability to work.
The main issue for determination is whether Ms Kennedy’s impairments could be assigned 20 points or more under the Impairment Tables during the qualification period and, if so, whether she has a continuing inability to work.
CONSIDERATION
There is a significant lapse of time between lodging the DSP claim on 21 December 2016 and the hearing before this Tribunal on 2 March 2020. This is a period of slightly more than three years. Nonetheless, the task for the Tribunal is to assess Ms Kennedy’s condition at the time of the DSP claim and the qualification period, as several decisions of the Tribunal have confirmed.
For example, in Secretary, Department of Social Services and Seyfang,[2] the Tribunal comprising Deputy President Bean notes that:
“I am required to have regard to the state of affairs during the assessment period, and without regard to later developments. Whilst I may have regard to evidence which came into existence after the assessment period, this is relevant only in so far as it assists in establishing the true state of affairs during the assessment period.”
[2] [2016] AATA 243.
It is important as well to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[3] 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.”
[3] [2012] AATA 922.
In addition, the way in which the Tribunal must assess evidence of treatment after the qualification period was discussed in Re Fanning and Secretary, Department of Social Services.[4] Deputy President Handley stated (at 33) that:
“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” (emphasis added). 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 relevant period is not directly relevant to the Tribunal’s decision”.
[4] [2014] AATA 447.
Further, the Federal Court in Gallacher v Secretary, Department of Social Services[5] stated at paras [26‑28]:
[5] (2015) FCA 1123.
“26 In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252, Gyles J said at 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a Disability Support Pension. There is little authority in the Court concerning the operation of these important provisions. It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. 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.
(On appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.)
27In Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 AAR 466, Deputy President Handley said at 473 [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 [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
28I respectfully agree with the approach taken in those cases. The approach to be taken in this case was dictated by the terms of the legislation (Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 300 [44] per Kirby J; at 315 [99] per Hayne and Heydon JJ)”.
The applicable impairment rating, if any, for each of Ms Kennedy’s conditions will be considered in turn by reference to the Impairment Tables.
IMPAIRMENT TABLES
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.
Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.
The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.
Consideration must be given to whether each of Ms Kennedy’s conditions was fully diagnosed, fully treated and fully stabilised during the qualification period before determining a qualification rating, because the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.
Crohn’s disease
Ms Kennedy gave evidence about her primary impairment, Crohn’s disease during the qualification period. The difficulties which she endured included constant pain in the abdomen and lower bowel, back pain, with episodes of vomiting, nausea and fatigue. Bowel movements were frequent during the day and night, the odour was unpleasant, the frequency was unpredictable.
Ms Kennedy told the Tribunal that when she woke up in the morning, she had no energy. She had abdominal pain and neck pain. Generally, she was staying at home and friends came to visit her. She was wary about going out because of the possibility of bowel accidents.
Numerous medical reports were provided in relation to the initial investigations, assessments and treatment from 2005 to 2009, and they included reports by, Dr Schoeman a consultant gastroenterologist at the Royal Adelaide Hospital and Dr Sathananthan, a gastroenterologist at the Modbury Hospital. In a report written on 1 February 2007, Dr Schoeman referred to Ms Kennedy’s “recently diagnosed colitis”.[6] In a report that he wrote on 31 March 2008, Dr Sathananthan commented :- “on the face of it it appears that her patchy colitis is due to Crohn’s but the lack of response to Prednisolone makes me think whether she has a non-specific colitis.”[7] On 13 March 2009, Dr Sathananthan wrote that Ms Kennedy’s “Crohn’s disease is reasonably well controlled” and he queried whether there may be a diagnosis of Irritable Bowel Syndrome.
[6] Exhibit 9.
[7] Exhibit 9.
The next bundle of medical reports commences in 2015. Dr Lawrence is a Senior Colorectal Consultant at the Royal Adelaide Hospital. He reported on 4 August 2015 that Ms Kennedy had a long history of colitis which, on reviewing the medical notes from 10 years earlier, was more likely to be Crohn’s disease than ulcerative colitis. She had recently had a concerning episode of constipation. Dr Lawrence reported that Ms Kennedy remained slightly constipated, with bowel movements every second day without diarrhoea. Significantly, Dr Lawrence commented as follows… – “I think we need to start from scratch with her and I have suggested that we repeat her colonoscopy and biopsies particularly given that she has had her colitis for more than 10 years not treated.… I have asked that she see the Inflammatory Bowel Disease Service to discuss further management.”[8]
[8] Exhibit 8
Soon after, Dr Schoeman saw Ms Kennedy again, for the first time in several years, for review after a recent colonoscopy. He was still a consultant gastroenterologist at the Royal Adelaide Hospital. He reported on 16 November 2015 that Ms Kennedy: - “is very wary to commence treatment of her Inflammatory Bowel Disease because she does not feel that previous attempts have been particularly useful”[9]. He suggested using Azathioprine.
[9] Exhibit 8
In December 2015, Dr Schoeman reported that Ms Kennedy did not want to continue with the prescribed medication, Azathioprine. She had taken it for a few weeks but felt uncomfortable resuming medication that she had tried previously, and which had not been effective. Dr Schoeman added that access to treatment with a biological agent would not be achieved readily because Ms Kennedy had not continued with the medication. At that time, Dr Schoeman wrote: – “At present she is not particularly symptomatic from Crohn’s disease apart from some significant abdominal pain. Her bowel if anything is one that tends to constipation and she tells me she only opens her bowels once a fortnight. What I have therefore suggested is that she try some Normacol and Movicol and that we get her bowels moving on a regular basis. I will then follow her progress closely but if she does develop more significant signs of Crohn’s disease then I think the next step from my perspective would be to refer her to the clinical trials unit as there are a couple of new agents for Crohn’s disease available that might well be appealing to her.”[10]
[10] T 13 p203.
Dr Mudaliar is Ms Kennedy’s general medical practitioner. He completed a medical certificate on 30 November 2016 in which he confirmed Ms Kennedy’s condition of Crohn’s disease.[11] This certificate was written shortly prior to the qualification period. He wrote that Ms Kennedy had refused all treatments until recently “when the clinical situation was bad “and that her “Irritable Bowel Syndrome complicates the options for treatment for Crohn’s disease”. At that time, Dr Mudaliar reported that she was experiencing abdominal pain and bowel movements that were explosive and unexpected.
[11] T13 p206.
A job capacity assessment report (JCA) dated 21 August 2018 concluded that Ms Kennedy’s condition of Crohn’s disease was fully diagnosed, but not fully treated and stabilised in the qualification period.[12] The report noted that Ms Kennedy had consulted specialist gastroenterologists in 2009 and subsequently in 2015. According to the JCA report Ms Kennedy said: – “she is currently not taking any medications. She said she has seen specialists on and off for 12 years since the diagnosis, but until 2015 she had not seen a gastroenterologist for six years. She said that Dr Schoeman wanted her to start all over again with medications, however due to past side-effects she did not wish to.… She reported pain, cramping, faecal urgency with having to change clothes twice per week on average due to soiling. She said she does not go out in public for long periods or on public transport due to faecal urgency. She does the shopping every few days and tends to do small shops rather than big ones.”[13]
[12] T 10 p165.
[13] T 13 p206.
Medical reports subsequent to the qualification period include a report by Dr Holman from the Royal Adelaide Hospital, Department of Gastroenterology and Hepatology, dated 12 December 2018 following a review of Ms Kennedy in an outpatient clinic. Dr Holman considered that her history was most consistent with active luminal Crohn’s disease. He planned further re-evaluation by means of gastroscopy, colonoscopy and MRE as well as up-to-date blood tests.
Dr Holman wrote: - It “is highly likely that Ms Kennedy will ultimately require management with biologic therapy … But prior to embarking on qualification for this I think it is important that we reassess her current level of disease activity and extent.”[14] Dr Holman also wrote that Ms Kennedy’s upper abdominal pain may indicate gastritis or other disease which needs to be further investigated and he considered that the symptoms of arthralgia which affect her hips, knees, shoulders and lower back are most consistent with osteoarthritis but require further evaluation.
[14] Exhibit 8.
Reviews and assessments had been recommended by the specialist medical practitioners several months ahead of the qualification period. After the qualification period, investigations and assessments were still key recommendations. Dr Holman’s recommendations were made about 20 months after the qualification period and they did not necessarily imply that biologic therapy would be ultimately required.
Two other reports by the general medical practitioner, Dr Mudaliar, were written well after the qualification period. In his report written on 25 May 2018 he commented that Ms Kennedy’s Crohn disease and ulcerative colitis was fully diagnosed and treated in 2009 by Dr Schoeman. At the time of providing the report, his opinion was that Ms Kennedy’s condition was fully diagnosed, treated and stabilised given that she :- “could not undertake the newest treatment due to not tolerating the last 4 medications which were required to be repeated to access the new treatment.”[15]This was 15 months after the qualification period.
[15] T 13 p209.

Similarly, Dr Mudaliar wrote on 19 January 2019 that Ms Kennedy’s diagnosis was Crohn’s disease, ulcerative colitis and Irritable Bowel Disease, with a major depressive illness as a result of Crohn’s disease. He reported that the condition of Crohn’s disease was fully diagnosed, treated and stabilised in the qualification period and he commented: – “she is currently as good as she is going to get and her condition will more likely than not persist for a period longer than two years.”[16] He wrote about treatment which had included medication which had severe side effects. As for planned treatment, he wrote that there is no other treatment available: – “Just live in hope. Colonoscopy every two years. We may see some new treatment in the future.”
[16] T 16 p270.
In 2019, Ms Kennedy was informed about research studies into Crohn’s disease to be conducted by the Department of Gastroenterology at the Queen Elizabeth Hospital. She does not want to participate in clinical trials of that kind because of possible side effects. However, the question of her possible involvement in those trials was not a question that arose during the qualification period. Indeed, it is at least two years later.
The Secretary contended that during the qualification period Ms Kennedy had not undertaken reasonable treatment for Crohn’s disease, as there was no evidence to suggest that Dr Schoeman’s recommendations were unlikely to result in significant functional improvement.
Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
Dr Sathananthan, gastroenterologist, last saw Ms Kennedy in July 2009. On 19 February 2020, subsequent to the qualification period and shortly before the hearing, Dr Sathananthan wrote that Ms Kennedy: – “underwent her initial colonoscopy at RAH in 2007 and subsequently I did two colonoscopies at Modbury Hospital in 2008 and a diagnosis of Crohn’s disease was confirmed… It is not curable, but with optimal treatment it can be well-controlled. She has been intolerant to various medications prescribed by specialists over the years, although my records indicate that she was doing well on Methotrexate.”[17]
[17] Exhibit 11.
Of importance, Dr Sathananthan also noted that as Ms Kennedy had not had a trial of treatment with biologics and he urged her to see her current specialist to consider such treatment. He concluded that as he had not seen her since 2009, he was unable to comment on the current status of her Crohn’s disease.
The specialist’s reports of Dr Lawrence, Dr Schoeman, Dr Holman and Dr Sathananthan do not provide a basis for the Tribunal to be satisfied that the condition of Crohn’s disease was fully treated and fully stabilised during the qualification period. Prior to that time, Dr Lawrence wanted to consider treatment based on starting from scratch. Dr Schoeman wanted to consider options for treatment. Specialist reports by Dr Holman and Dr Sathananthan subsequent to the qualification period confirm that options needed to be considered following further assessment. The Tribunal is persuaded by the weight of the evidence from these medical specialists.
The Tribunal is satisfied Ms Kennedy’s condition of Crohn’s disease was fully diagnosed, but not fully treated and fully stabilised during the qualification period. An impairment rating cannot be given in relation to this condition.
Ocular migraine
Ms Kennedy gave evidence about the ocular migraines. Sometimes they affect her for five minutes and other times up to one hour. They affect her vision. She consulted an ophthalmologist, Dr Chen.
Dr Chen reported on 28 October 2016[18] that Ms Kennedy suffers migraines weekly and each episode normally lasts about 30 minutes. According to the report she was managing the migraines and declined medication. Dr Chen wrote that Ms Kennedy has ocular hypertension without evidence of glaucoma and the condition required monitoring only. A tentative appointment for a review was made in 12 months’ time. Dr Chen’s report was written just under two months before the qualification period. It followed examinations of Ms Kennedy on 4 August 2016 and 28 October 2016.
[18] T 13 p204.
Dr Mudaliar reported on 25 May 2018 that Ms Kennedy’s migraines were diagnosed in 2008 and various medications were given at that time. Dr Mudaliar wrote that Ms Kennedy was prescribed medication by Dr Chen in September 2017 and the medication was unsuccessful. That was after the qualification period. Dr Mudaliar concluded that Ms Kennedy has tried several medications, she is intolerant to most of them, and that her migraines are fully diagnosed, treated and stabilised.[19]
[19] T 13 p209.
The JCA report[20] noted that in August 2018 Ms Kennedy was taking Endep and Aspirin for headaches which she reported were happening daily and lasting for 4 to 5 hours. According to the JCA report Ms Kennedy said that she sustained headaches after holding a posture for 5 to 10 minutes and she also reported visual disturbances. The report noted that Ms Kennedy’s general medical practitioner, Dr Mudaliar, considered that she has cervicogenic headaches. The JCA report went on to say that the condition could not be considered fully treated and stabilised during the qualification period because the neck condition may also be causing headaches, Ms Kennedy had not seen a neurologist at any time, and there was not a neurologist’s opinion to separate the impacts of migraines from the cervicogenic headaches .
[20] T 10 p165.
Consistently with Dr Chen’s report, the Tribunal is satisfied that a condition of ocular migraine was diagnosed prior to the qualification period. However, it was not fully treated and fully stabilised during the qualification period. Further treatment was planned at least over the next 12 months. An impairment rating cannot be assigned for this condition.
Shoulder and upper arm
Ms Kennedy told the tribunal that she has had difficulties with her shoulders and neck during the qualification period. She was taking medication to relieve the pain. In the past she has had physiotherapy treatment.
Ms Kennedy said that she had problems with pain in her shoulder which affects ordinary activities such as holding a hairdryer. She needed help with aspects of self-care such as showering. Her sister and her niece help her with drying.
Ms Kennedy said that she can use an iPad. She is active on Facebook. She can hold and use a pen or pencil and she can unscrew a lid on a bottle if it is not too tight. Getting dressed can cause problems with movement of her arms.
Dr Mudaliar’s report on 25 May 2018 refers to right shoulder bursitis which was diagnosed years earlier in 2009 and 2010. An x-ray and ultrasound of the right shoulder on 17 March 2017 by Dr Edwards[21] refers to early degenerative change at the acromioclavicular joint. The report noted that there was a little calcification in soft tissues consistent with calcific tendinosis and subacromial bursa is a little prominent which may be related to bursitis, while impingement was not evident.
[21] T 13 p207.
Subsequently, a radiology report was written on 13 September 2017[22] following an x-ray of the left shoulder and ultrasound of both shoulders. The finding was calcification in the mid-supraspinatus bilaterally with subacromial bursitis and impingement. A bilateral steroid injection was performed. This examination and treatment occurred several months after the qualification period.
[22] T 13 p208.
The JCA report[23] concluded that the shoulder and upper arm condition was diagnosed, but not fully treated and stabilised. There was no supportive evidence of treatment other than injections. That conclusion is correct. At the time of the DSP claim and during the qualification period the shoulder and upper arm condition had been diagnosed. However, it was not fully treated and fully stabilised. In those circumstances an impairment rating cannot be assigned.
[23] T 10 p165.
Spinal disorder
Ms Kennedy told the Tribunal that she sustained a lower back injury at work when she was about 25. Subsequently she has suffered from sciatica and she has received treatment by way of physiotherapy and hydrotherapy. She also had a form of chiropractic treatment or manipulative therapy.
Ms Kennedy’s daily routine included some domestic activities. During the qualification period her routine included cooking an evening meal for Mr Kennedy and her son. She carried out some household tasks, though with some improvisations. She would sit on the floor to load the washing into a front loader washing machine. She put the clothes into the dryer which sits on top of the washing machine. She said she was limited in aspects of housework but could do things like dusting and wiping benches. Overhead movements were problematic including difficulty with moving her head to look in all directions. She assisted Mr Kennedy with his showering and dressing. He uses a walking stick and she said if he dropped something, he can’t bend over to pick it up. She was asked whether she has a full-time role in caring for Mr Kennedy, and she replied that her house environment is not normal and does not follow more conventional routines.
Ms Kennedy told the tribunal that she drove a car on short trips which last only for a few minutes. For example, she drives to a supermarket which is not far from home. She said that she did not need assistance to get in and out of a chair.
Dr Mudaliar’s certificate dated 30 November 2016[24] notes lower back pain with left sciatica which was unpredictable and worse with routine household chores. Past treatment included resting, physiotherapy, self-massage and analgesics with current and planned treatment being “more of the same”. Subsequently on 25 May 2018 Dr Mudaliar noted lower back pain and left sciatica which was worse with household chores.[25]
[24] T 13/206.
[25] T 13/209.
A CT scan of the cervical spine on 17 March 2017 reported disc degeneration at C6/7 and C5/6 with a mild broad-based disc bulge at C5/6.[26]
[26] T 13/207.
According to the JCA report[27] Ms Kennedy had accessed limited treatment for this condition, which was fully diagnosed, but not treated and stabilised.
[27] T 10/165.
Impairment Table 4 – Spinal function, is used where a person has a permanent condition which has a functional impairment in the performance of activities involving spinal function, namely, bending or turning the back, trunk or neck. The diagnosis must be made by an appropriately qualified medical practitioner.
For a mild functional impact, Table 4 states:

Points

Descriptors

5
There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)     activities overhead height (e.g. activities requiring the person to look upwards); or

(b)     bending to knee level and straightening up again without difficulty; or

(c)     turning their trunk or moving their head (e.g. to look to the sides or upwards).

Dr Mudaliar’s certificate dated 30 November 2016 and the subsequent CT scan provides some corroborating evidence of the impairment. On consideration of all the evidence relating to the spinal condition the Tribunal finds that it was fully diagnosed, treated and stabilised at the time of the DSP claim and during the qualification period.
The descriptors for a mild functional impact approximate Ms Kennedy’s functional impairment. Accordingly, the Tribunal finds that appropriate rating is 5 impairment points under Table 4 for Ms Kennedy’s activities involving spinal function.
Depression
Ms Kennedy told the Tribunal that she felt depressed at the time of the diagnosis of Crohn’s disease. She consulted a psychologist. However, treatment has been predominantly by medication. She said that at times she feels suicidal and she described symptoms and effects which have fluctuated. They can be severe. She has used medication to try to alleviate the effects and changed dosages on occasions to try to maintain a “semi-normal mental frame.” Her general medical practitioner, Dr Mudaliar’s certificate dated 30 November 2016[28] referred to a major depressive disorder without going into any detail about its features and treatment. Dr Mudaliar wrote on 25 May 2018 that Ms Kennedy has a diagnosis of major depressive disorder as a secondary related condition to Crohn’s disease.[29]
[28] T 13 p206.
[29] T 13 p209.
A general medical practitioner mental health care plan[30] dated 30 April 2009 noted a diagnosis of reactive depression. The presenting issues were Ms Kennedy’s tiredness, feelings of uselessness, depression as a result of problems with health and loss of job, and inability to lose weight. A referral to a psychologist, Ms Burlock, for cognitive behaviour therapy was suggested. A report from Ms Burlock provided in July 2009 referred to symptoms which were consistent with a major depressive episode.[31]
[30] T 13 p183.
[31] T 13 p198.
According to the JCA report (T10/165) Ms Kennedy stated that she was diagnosed with depression some 6 to 8 years earlier and she was taking Cymbalta, an antidepressant, since that time. She was reported to have said that she last saw a psychologist around 3 to 4 years earlier for about 3 to 4 months and found it to be of limited benefit. The JCA report went on to say that Ms Kennedy mentioned… – “Low mood, poor sleep, stress exacerbated by psychosocial factors such as living in a separated under the same roof situation with her ex-partner and health concerns with her 21-year-old son.”
The JCA report noted that Dr Mudaliar reported on 30 November 2016 that Ms Kennedy had a diagnosis of major depression. The JCA report also noted that that Ms Kennedy had consulted a psychologist, but the psychology report from 2009 could not be deciphered. She was not presently engaging in any treatment, she was taking Endep for the pain which also has some antidepressant properties and she was taking Temazepam at night to assist with sleep. In the absence of a corroborating diagnosis from a clinical psychologist or psychiatrist, the JCA report considered that the mental health condition could not be considered to be fully diagnosed, treated and stabilised.
The Tribunal considers that the JCA’s conclusion is correct. The introduction to Impairment Table 5, mental health function, makes it clear that the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). A report from a psychologist, written in 2009 was provided. Unfortunately, however, there is insufficient, contemporaneous evidence by an appropriately qualified medical practitioner of a diagnosis of a mental health condition during the qualification period. Equally, there is insufficient evidence about treatment and its outcome at that time.
Accordingly, the Tribunal finds that Ms Kennedy’s mental health condition was not fully diagnosed, fully treated and fully stabilised during the qualification period. An impairment rating cannot be assigned under table 5
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
As outlined, the Tribunal finds that Ms Kennedy’s spinal condition was fully diagnosed, fully treated and fully stabilised during the qualification period. The applicable rating for the spinal condition is 5 impairment points.
The Tribunal finds that Ms Kennedy’s Crohn’s disease was fully diagnosed during the qualification period. However, it was not fully treated and not fully stabilised and an impairment rating under the Impairment Tables cannot be given.
Ms Kennedy’s mental health condition was not fully treated and stabilised during the qualification period and no rating can be assigned in respect of it.
Ms Kennedy’s ocular migraines and upper limb condition were each fully diagnosed, though not fully treated and fully stabilised during the qualification period and no rating can be assigned in respect of them.
With a total of 5 impairment points, Ms Kennedy does not have an impairment, or combination of impairments, attracting a rating of at least 20 points under the Impairment Tables during the qualification period. Therefore, she does not satisfy s 94(1)(b) of the Act.
In these circumstances it is not necessary to consider whether or not during the qualification period Ms Kennedy had a continuing inability to work within the meaning of s 94(1)(c) of the Act.
As Ms Kennedy was not qualified for DSP at the time, she lodged her claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review. This decision does not mean that the Tribunal underestimates the complexities and impacts of Ms Kennedy’s medical conditions. The effect of the Tribunal’s decision is that she does not meet the necessary criteria for qualification for DSP at the time she lodged the claim and during the subsequent qualification period.

DECISION

The Tribunal affirms the decision under review.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

............[sgnd]..................................................
Administrative Assistant Legal
Dated: 4 June 2020

Date of hearing: 2 March 2020

Applicant:

Self-represented

Representative for the Respondent: Ms E Moran, Department of Human Services

Date of hearing:	2 March 2020
Applicant:	Self-represented
Representative for the Respondent:	Ms E Moran, Department of Human Services