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

Kennedy and Secretary, Department of Social Services (Social services second review) [2019] AATA 806 (7 May 2019)
Division:GENERAL DIVISION
File Number:2018/6835
Re:Krystee Kennedy
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:7 May 2019
Place:Brisbane

The Tribunal affirms the decision under review.
................................[SGD].....................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
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; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
7 May 2019
INTRODUCTION

On 22 January 2018, Ms Krystee Kennedy’s (the Applicant) claim for the disability support pension (DSP) was received by the Respondent.[1]
[1] Exhibit 1, T Documents, T 24, pages180-212, Disability Support Pension claim form.
The claim was rejected on 12 March 2018,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 22 June 2018.[3]
[2] Exhibit 1, T Documents, T 26, pages 215-216, Centrelink Notice: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T 32, pages 234-241, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on

17 October 2018.[4]
[4] Exhibit 1, T Documents, T 2, pages 3-10, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an email dated 11 November 2018.[5]
[5] Exhibit 1, T Documents, T 1, pages 1-2, Request for Review.
On 9 April 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of her claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s claim for DSP form[6] she lists the following disabilities, illnesses or injuries:[7]
-Chronic pain
-Adjustment disorder
-Chronic anxiety
-Chronic depression
-Colorectal problems
-Neck, shoulder pain
-Reduced grip
[6] Exhibit 1, T Documents, T 24, pages 180-212, Disability Support Pension claim form.
[7] Exhibit 1, T Documents, T 24, page 205, Disability Support Pension claim form.
On 12 March 2018, an Assessor, whose professional discipline is listed as ‘Rehabilitation Counsellor’, reviewed the Applicant’s DSP application and supporting material and recommended that the Applicant was manifestly medically ineligible for DSP.[8] The Assessor formed the view that as the Applicant had pending treatment for her conditions and that it was reasonable to expect planned treatment to occur within the next 2 years which would result in symptomatic and functional improvement, the conditions were not considered fully treated and stabilised.[9]
[8] Exhibit 1, T Documents, T 25, page 213-214, Disability Support Pension medical assessment recommendation.
[9] Exhibit 1, T Documents, T 25, page 214, Disability Support Pension medical assessment recommendation.
On 12 March 2018, a decision was made to reject the Applicant’s DSP application on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[10]
[10] Exhibit 1, T Documents, T 26, pages 215-216, Centrelink Notice: Rejection of DSP claim.
On 28 May 2018, the Applicant attended a face to face Employment Services Assessment (ESA) with a registered occupational therapist.[11] The Assessor found that the Applicant’s conditions were likely to improve and opined that with DES-ESS specific intervention the Applicant’s work capacity may increase to 15-22 hours per week within 2 years.[12]
[11] Exhibit 1, T Documents, T 30, page 222, Employment Services Assessment Report.
[12] Exhibit 1, T Documents, T 30, pages 229-230, Employment Services Assessment Report.
On 22 June 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP.[13] The ARO made the following key findings:[14]
·Your conditions of bilateral carpal tunnel, right wrist injury, chronic regional pain syndrome (bilateral wrists), depression, anxiety, oedema and complex bowel and rectal prolapse are not accepted as being permanent as there is insufficient medical evidence to support that your conditions were fully treated and fully stabilised within 13 weeks of you lodging this claim.
· Your conditions have not been assigned impairment ratings.
· You do not have an impairment rating of 20 points or more.
·A more recent Job Capacity Assessment referral was not recommended as your medical conditions are not considered to be fully diagnosed, fully treated and stabilised.
·As you have not met the requirements of an impairment rating of 20 points or more, I have not considered whether you have met the ‘Continuing Inability To Work’ requirements.
[13] Exhibit 1, T Documents, T 32, page 234-241, Authorised Review Officer Decision and Notes.
[14] Exhibit 1, T Documents, T 32, page 234-241, Authorised Review Officer Decision and Notes.
On 9 July 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[15] On 17 October 2018, the SSCSD affirmed the decision under review.[16]
[15] Exhibit 1, T Documents, T 36, pages 253-254, Request for statement.
[16] Exhibit 1, T Documents, T 2, pages 3-10, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.Does the applicant have a physical, intellectual or psychiatric impairment;[17]
2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[18] and
3.Does the Applicant have a continuing inability to work?[19]
[17] Section 94(1)(a) of the Act.
[18] Section 94(1)(b) of the Act.
[19] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(i)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(ii)are function based rather than diagnosis based; and
(iii)describe functional activities, abilities, symptoms and limitations; and
(iv)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[20] The Impairment 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.[21] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[22]
[20] Section 6(1) of the Determination.
[21] Section 6(2) of the Determination.
[22] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: if the person’s condition causing the impairment; is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[23]
[23] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[24]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)more likely than not, in light of available evidence, to persist for more than 2 years.
[24] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered; whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[25]
[25] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[26]
(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.
[26] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliability be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[27]
[27] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[28] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[29] Where multiple 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.[30]
[28] Section 10 of the Determination.
[29] Sections 10(3) and (4) of the Determination.
[30] Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[31]
[31] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[32]
[32] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[33]
[33]; Schedule 2, Part 2 sections 41 and 42, clauses 3 and 4(1) of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[34]
[34] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 22 January 2018, being the date the Applicant lodged her claim for DSP, and ending 13 weeks later on 23 April 2018. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention[35] and the Respondent considers the Applicant’s impairments include upper limb conditions/CRPS,[36] a mental health condition,[37] and a bowel and rectal prolapse condition.[38]
[35] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 7, paragraph 40.
[36] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, pages 7-9, paragraphs 41-57.
[37] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, pages 9-11, paragraphs 58-68.
[38] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 11, paragraphs 69-71.
The remaining issues for the Tribunal to consider are:
1.Whether, within the relevant period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross-examination from the Respondent. I consider that the Applicant gave honest answers to the questions she was asked. I accept that the Applicant suffers impairments, is frustrated with being functionally impaired and not being able to gain employment.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[39] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be likely to persist for more than 2 years.[40] The Impairment 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.[41] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[42]
[39] Section 6(3) of the Determination.
[40] Section 6(4) of the Determination.
[41] Section 6(2) of the Determination.
[42] Section 8(1) of the Determination.
Upper limb condition/Chronic regional pain syndrome (CRPS)
The Applicant has both right and left upper limb conditions.
The Respondent accepts that the Applicant’s right upper limb condition (chronic right wrist pain) was fully diagnosed, fully treated and fully stabilised as at the Relevant Period, however contends that the Applicant’s left upper limb condition was not fully diagnosed, fully treated and fully stabilised at the Relevant Period. The Respondent contends that therefore in assessing the Applicant’s appropriate impairment rating under Table 2 of the Impairment Tables only the impairment arising from the right wrist can be taken into account.[43]
[43] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 7, paragraph 41.
In a Medical Report for DSP dated 19 March 2011 Dr Sean Scanlan, general practitioner, reported that the Applicant had a right wrist and spinal condition, with a date of onset being 11 December 2009.[44]
[44] Exhibit 1, T Documents, T6, page 76, Medical report for disability support pension authored by Dr Sean Scanlan.
There are a number of medical reports and Centrelink instigated Job Capacity Assessment (JCA) reports dating back to 2011[45] which outline that the Applicant’s chronic pain condition in her right wrist was fully diagnosed, fully treated and fully stabilised. After further injuring her right wrist at work in December 2011[46] the Applicant underwent arthroscopic surgery to her right wrist in April 2012 following which she developed chronic regional pain syndrome affecting the right wrist.[47] The Applicant underwent further surgical procedures, being a wrist arthrodesis in June 2013 and surgery to remove a screw and pisiform bone and debridement of her right wrist on 6 February 2014.[48]
[45] Exhibit 1, T Documents, T8, pages 95-103, Job capacity assessment report dated 1 April 2011; T12, pages 116-124, Job capacity assessment report dated 31 January 2013; T17, pages 157-165, Job capacity assessment report dated 24 August 2016; T30, pages 222-232, Employment services assessment report dated 28 May 2018.
[46] Exhibit 1, T Documents, T10, page 106, Treating doctors report authored by Dr Sean Scanlan; T12, page 118, Job capacity assessment report dated 31 January 2013; T16, page 153, Medical Assessment Tribunal Decision.
[47] Exhibit 1, T Documents, T16, page 153, Medical Assessment Tribunal Decision.
[48] Exhibit 1, T Documents, T16, page 153, Medical Assessment Tribunal Decision.
The Applicant developed symptoms of carpal tunnel syndrome in her left wrist which resulted in endoscopic left carpal tunnel decompression on 30 July 2015.[49]
[49] Exhibit 1, T Documents, T16, page 153, Medical Assessment Tribunal Decision.

On 2 January 2018, Dr Kieran McCarthy, general practitioner, provided a referral for the Applicant to the Sunshine Coast Persistent Pain Management Service.[50] Dr McCarthy listed the reason for referral as being:
Relocated from Brisbane to Gympie late 2016. Ongoing CRPS (bilateral wrists), causing significant disability and emotional distress. Complex right wrist fracture and C5 compression # from workplace injury (20/12/11). Now needs surgery for left wrist (carpel ulnar sag). Workcover case has been closed. Financially struggling, and unable to access physical therapy (has used up TCA etc). Completed Canossa Pain Program in early 2014 with Dr Saul Geffen. Known Adjustment disorder. Significant anxiety and depression at times, especially when pain and social situation become unbearable. Has tried numerous pain medications in the past, and due to dependency is not keen on going down that path again. I feel she needs multidisciplinary pain service care in her geographic locality. She continues to see me despite the 3 hr drive. Currently in significant social crisis - living in a shed and self harming due to chronic pain and overall social situation.[51]
[50] Exhibit 1, T Documents, T21 pages 174-176, Persistent pain management service referral form authored by Dr Kieran McCarthy.
[51] Exhibit 1, T Documents, T21, page 174, Persistent pain management service referral form authored by Dr Kieran McCarthy.
A letter addressed to Dr Carl Faldt from the Gympie Hospital dated, 16 August 2018, provided:
I have seen [the Applicant] today with right and left wrist pain. The left is worse and she relates pain to a carpal tunnel decompression four years ago, opening a door when she got home from hospital and terrible pain ever since.
I note she had two injections with no benefit and she pointed to the ulnar side of the wrist. She has pain in the palm radiating up the ulnar forearm, constant in nature, made worse on activity and gripping with associated paraesthesia of her little finger and ring finger at night. It is relieved by extending the arm.
In the right wrist she has had a fusion, seven operations on WorkCover compensation pay out and ongoing aching pain in the mid-carpal area.
On examination there is not a great deal to find. She is much too tender in the left to explain anything and has normal sensation today. A nerve conduction study might help to work out if there is ulnar nerve compression at the wrist.[52]
[52] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment E, Letter addressed to Dr Faldt from Gympie Hospital dated 16 August 2018 (partial).
The Respondent concedes that the Applicant’s right upper limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period[53] and contends that the impairment should be assigned no more than 10 points under Table 2 of the Impairment Tables. The Respondent contends that there is limited evidence of functional impairment and contends that a 10 point rating is appropriate relying up on the following:[54]
a. The report of Dr Javadi dated 7 August 2015, which stated that the Applicant has very limited and painful right wrist movement (T13, 129);
b. The Applicant's evidence of functional impairment provided to the General Medical Assessment Tribunal on 8 April 2016, which was apparently supported by her friends Ms Stacey Waters and Ms Sasha Gluyas, was that she drives a car with modifications, requires some assistance for cutting her toenails and washing her hair, can shower herself daily, feeds herself but requires someone to cut food, relies on her son to carry dishes and utensils, is able to use the toilet independently, was unable to pull up a zip or fasten buttons, and avoids wearing a bra because of difficulty in putting it on (T16, 154); and
c. The Applicant's evidence of functional impairment provided to the ESA assessor in the report submitted on 28 May 2018, which stated that she has limited bilateral hand fine motor skills, and undertakes manual handling activities with difficulty (T30, 222-232).
[53] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 8, paragraph 50.
[54] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 9, paragraph 56.
At Hearing the Applicant told the Tribunal:
oShe cannot do anything with her right arm and has difficulty filling out forms, putting on a bra or wiping her bottom;
oShe is right handed;
oShe can drive her car because it has been modified and she drives with a steering knob;
oShe has pain and difficulty with her left arm however cannot afford nerve deduction investigations;
oShe is a health and safety risk due to the medication she is on for pain;
oShe received a compensation pay outs for her work-related injuries, however the money was embezzled and now she has no money left;
oFrom 2016 until now she has pain every day and is medicated;
oHer step daughter is living with her and does the dishes and helps at home
oHer sons have moved out as she is not able to help look after them, one son is in a wheelchair and needed to have surgery;
oShe can pick up a 1 litre bottle of liquid with her left hand;
oShe has to cradle items when picking them up as she cannot just pick them up with her hands;
oShe cannot use a pen or pencil;
oShe cannot do up buttons or tie shoelaces, put on makeup or fasten a bra as she cannot twist her wrist;
oShe cannot type;
oShe cannot unscrew a lid on a soft-drink bottle so she gets pop top bottles;
oShe cannot use a can opener;
oShe can turn pages of a book with her left hand;
oShe has a neck injury and no one is taking it into consideration;
oShe has no choice but to work as she cannot feed herself, so she applies for all jobs; and
oShe has been working at Wayne’s World and was working around 12 hours a week, however due to a workplace accident she is currently working 6 hours a week and is also receiving work cover payments.
On cross-examination, the Respondent asked the Applicant about the evidence she provided to the SSCSD that her left hand caused her no loss of function. The Applicant told the Tribunal:
oOf course, not, it is the only hand she has;
oShe does things because she has to;
oShe cannot write or use a pen or pencil with her left hand not because of the injury but more because it is her non-dominant hand;
oShe can type with one finger of each hand; and
oShe uses her left hand to turn pages in a book.
Table 2 of the Impairment Tables considers upper limb function. A moderate functional impact requires following descriptor to be met:

10

There is a moderate functional impact on activities using hands or arms.

(1)      The person has difficulty with most of the following:

(a)      picking up a 1 litre carton full of liquid;

(b)      picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)      holding and using a pen or pencil;

(d)      doing up buttons or tying shoelaces;

(e)      using a standard computer keyboard;

(f)       unscrewing a lid on a soft-drink bottle.

A severe functional impact requires following descriptor to be met:[55]
[55] Impairment Table 2 – Upper Limb Function, Part 3 of the Determination.

20

There is a severe functional impact on activities using hands or arms.

(1)      Most of the following apply to the person:

(a)      the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

(b)      the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

(c)      the person has difficulty using a computer keyboard despite appropriate adaptations;

(d)      the person has severe difficulty using a pen or pencil;

(e)      the person has severe difficulty turning the pages of a book without assistance.

Based on the medical evidence discussed above, and given the extensive treatment undertaken for the right wrist condition, I am satisfied that the Applicant’s right upper limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. As such, the functional impact of the condition can be assessed under Table 2 of the Impairment Tables.
Based on the medical evidence discussed above I am not satisfied that the Applicant’s left upper limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period as there is still ongoing investigations and further treatment is required in relation to the condition. Accordingly, the Applicant’s left upper limb condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
An impairment rating can only be assigned under the Impairment Tables to conditions which are considered permanent. Consequently, in relation to assigning an impairment rating in relation to the Applicant’s functional impairment when performing activities requiring the use of hands or arms the Tribunal is limited to considering the functional impairment resulting from the Applicant’s right upper limb condition.
Considering the medical evidence and evidence given at the Hearing by the Applicant outlined above, I am satisfied that the Applicant’s impairment should be assigned 10 points under Table 2 of the Impairment Tables. During the Relevant Period, I do not consider that the Applicant met the requirements to be assigned 20 points under Table 2 as she does not meet three or more of the descriptors on the basis that the impairment to her left hand/arm cannot be considered and the Applicant did tell the Tribunal that she can manage most things with her left hand albeit with difficulty.
Based on the evidence before the Tribunal I find that the Applicant’s right upper limb condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned a functional impairment rating of 10 points under Table 2 of the Impairment Tables.
In relation to the Applicant’s assertions regarding her neck and shoulder conditions not being considered, based on the evidence before the Tribunal it appears that these conditions were in part considered in the medical information that attributed to her chronic pain and right wrist condition. However, there is no specific medical evidence or assessment independent to the Applicant’s right wrist condition, in relation to these conditions or the resulting functional impact. Due to the lack of information before the Tribunal in relation to the Applicant’s neck and shoulder conditions I find that they were not fully diagnosed, fully treated or fully stabilised during the Relevant Period. Therefore, the Applicant’s neck and shoulder conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Mental health condition
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from a mental health condition during the Relevant Period. This point is not in contention.[56]
[56] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 9, paragraph 58.
To be considered fully diagnosed, Table 5 of the Impairment Tables, which relates to mental health, requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[57]
[57] Impairment Table 5 – Mental Health Function, Part 3 of the Determination.
In a Medical Report for DSP dated 18 March 2011, Dr Sean Scanlan, general practitioner, diagnosed that the Applicant had depression reactive to chronic pain.[58] In a Treating Doctor’s Report dated 17 December 2012, Dr Scanlan reported that the Applicant had chronic anxiety disorder and chronic depressive disorder, with a date of onset of April 2012 and reference was made to her having consulted with Dr Mathew Hocking, psychiatrist.[59]
[58] Exhibit 1, T Documents, T6, page 80, Medical repot for disability support pension authored by Dr Sean Scanlan.
[59] Exhibit 1, T Documents, T10, page 108, Treating doctors repot authored by Dr Sean Scanlan.
In a Medical Report for DSP dated 7 August 2015, Dr Kathy Javadi, general practitioner, reported that the Applicant had depression and anxiety and that she had consulted with

Dr Mathew Hocking, psychiatrist who has confirmed the diagnosis.[60]
[60] Exhibit 1, T Documents, T13, pages 131-132, Medical report for disability support pension authored by Dr Kathy Javadi.
As part of a Work Cover claim the Applicant was assessed on 10 December 2013, by the Medical Assessment Tribunal to have adjustment disorder with depressed mood and was at that time under the care of a treating psychiatrist.[61]
[61] Exhibit 1, T Documents, T14, pages 140-146, Medical Assessment Tribunal Decision dated 10 December 2013.
In a report dated 23 August 2017, Dr Faldt, general practitioner, reported that the Applicant had ongoing issues with depressive mood and financial problems and that the Applicant was affected by low mood, poor sleep, poor appetite, low energy and motivation and was teary with labile speech.[62]
[62] Exhibit 1, T Documents, T19, pages 170-171, Medical reports authored by Dr Iqtidar Bangash.
The Applicant continued to have treatment under mental health care plans[63] and, of relevance between 22 September 2017 and 10 January 2018, she attended six psychology sessions with Dr Wendy Campbell, psychologist.[64]
[63] Exhibit 1, T Documents, T19, page 168, Medical reports authored by Dr Iqtidar Bangash.
[64] Exhibit 1, T Documents, T23, page 179, Medical repot authored by Wendy Campbell.
On 2 January 2018, Dr Kieran McCarthy, general practitioner, referred the Applicant to the Gympie Mental Health Team for assessment and intervention as appropriate, on the basis that the Applicant was ‘in a crisis at present’. Dr McCarthy wrote that the Applicant is usually quite tearing and emotionally labile, due to chronic pain and her very difficult social and financial situation.[65]
[65] Exhibit 1, T Documents, T20, pages 172-173, Specialist referral authored by Dr Kieran McCarthy.
In a Centrelink Medical Certificate dated 2 January 2018, Dr McCarthy diagnosed that the Applicant had ongoing anxiety and depression due to severe chronic pain and disability, which was permanent, with current treatment being facilitated through community mental health in Gympie/medication and planned treatment being ongoing mental health support.[66]
[66] Exhibit 1, T Documents, T22 page 178, Medical certificate completed by Dr Kieran McCarthy.
Dr Iqtidar Bangash, general practitioner, had referred the Applicant to Dr Chris Martin on 27 December 2017.[67] In a letter dated 24 May 2018, Dr Chris Martin, consultant psychiatrist said he reviewed the Applicant on 22 May 2018, noting it had taken her a long period of time to arrange the appointment. Dr Martin noted that the Applicant had previously been a patient of Dr Rebecca Freshney and that she reported depressive symptoms, and that she had personal disasters over the past 12 months including: losing a substantial sum of money to a builder; needing to live in a shed; being deserted by her children; and having worsened physical health. Dr Martin reported that there ‘are a number of measures [the Applicant] could take to improve her situation.’ He changed the Applicant’s medication regime and asked Dr Bangash to draw up a new mental health plan to allow the Applicant to see a new psychologist.[68]
[67] Exhibit 1, T Documents, T19, page 169-171, Medical reports authored by Dr Iqtidar Bangash.
[68] Exhibit 1, T Documents, T29, page 220-221, Medical report authored by Dr Chris Martin.
At Hearing the Applicant told the Tribunal that her medication was reviewed and changed once a year and that in the 12 months referred to leading up to mid 2018 she had, had a mental breakdown and had attempted suicide on more than one occasion. She told the Tribunal that:
·         Some days caring for herself is too hard;
·         She had no friends and goes to the shops when she has to, she is embarrassed because she drops things;
·         Has not seen her family in a while, only her step daughter who moved in to help her;
·         Has problems with concentration and completion of tasks, she seems to only half finish things and can watch a television show;
·         She is behind in her bills due to both planning and finance troubles; and
·         She had been working at Wayne’s World for up to 12 hours a week, however due to a work place injury she is currently working 6 hours a week.
The Respondent contends that the Applicant’s mental health condition was not fully treated and stabilised at the Relevant Period relying on the changes to her treatment regime that were recommended by Dr Martin shortly after the Relevant Period following a significant exacerbation of her condition.[69] The Respondent contended:
[69] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 10, paragraph 63.
While the condition was longstanding, it remains that there were substantial changes to her treatment, with recommendations for further engagement, very shortly after the qualification period. The recommended changes to treatment were stated to potentially improve the Applicant’s situation, with the treating psychiatrist considering her condition to be temporary in nature. This demonstrates that the condition was not fully treated and stablished at the qualification period.
Accordingly, the Secretary contends that the impairment arising from this condition cannot attract an impairment rating under Table 5.[70]
[70] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 10, paragraphs 63-64.

5

There is a mild functional impact on activities involving mental health function.

(1)        The person has mild difficulties with most of the following:

(a)        self care and independent living;

Example: The person lives independently but may sometimes neglect self-care, grooming or meals.

(b)        social/recreational activities and travel;

Example 1: The person is not actively involved when attending social or recreational activities.

Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

(c)        interpersonal relationships;

Example: The person has interpersonal relationships that are strained with occasional tension or arguments.

(d)        concentration and task completion;

Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.

Example 2: The person has some difficulties completing education or training.

(e)        behaviour, planning and decision-making;

Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.

Example 2: The person has slight difficulties in planning and organising more complex activities.

(f)         work/training capacity.

Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.

Table 5 of the Impairment Tables considers mental health function. A mild functional impact requires following descriptor to be met:
A moderate functional impact, which would assign 10 impairment points would require the Applicant to have moderate difficulties with most of the above descriptors[71] and a severe functional impact, which would assign 20 impairment points would require the Applicant to have severe difficulties with most of the above descriptors.[72]
[71] Table 5 – Mental Health Function, Part 3 of the Determination.
[72] Table 5 – Mental Health Function, Part 3 of the Determination.

Based on the medical evidence set out above, I find that the Applicant’s mental health condition, in particular depression and anxiety was fully diagnosed, fully treated, fully stabilised during the Relevant Period. Although the Applicant suffered an exacerbation of her condition by way of a crisis in the period leading up to the Relevant Period and her medication was adjusted shortly after the Relevant Period the medical evidence before the Tribunal sets out that the Applicant’s mental health condition is long standing, with consistent functional impact, and she has continued engagement with mental health supports. As such, the functional impairment of the condition can be assessed under Table 5 of the Impairment Tables.
Considering the medical evidence and evidence given at the Hearing by the Applicant outlined above, there is limited corroborative evidence of the functional impact of the Applicant’s mental health condition. Given the Applicant has been able to engage in part time work, I am satisfied that the Applicant’s impairment should be assigned 5 points under Table 5 of the Impairment Tables. During the Relevant Period, there is no corroborative evidence to suggest that the Applicant met the requirements to be assigned 10 or 20 points under Table 5.
Based on the evidence before the Tribunal I find that the Applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned a functional impairment rating of 5 points under Table 5 of the Impairment Tables.
Bowel and rectal prolapse
In a referral letter dated 2 January 2018, Dr Kieran McCarthy, the Applicant’s general practitioner diagnosed that the Applicant has a complex bowel prolapse.[73]
[73] Exhibit 1, T Documents, T20, page 172, Specialist referral authored by Dr Kieran McCarthy.
On 21 December 2017, the Applicant was booked in for a defecating proctogram at the Medical Imaging Department of the Sunshine Coast University Hospital, which occurred on 7 February 2018.[74]
[74] Exhibit 1, T Documents, T18, page 166, Medical imaging referral.
In a letter dated 23 April 2018, Dr Debra Parkinson of the Sunshine Coast Hospital and Health Service advised that the Applicant had underwent an endo-anal ultrasound scan and anal manometry, which showed that she has a small rectal prolapse and rectocele. Dr Parkinson opined that the best option would be for pelvic floor exercises with biofeedback to help improve the Applicant’s symptoms and noted she had referred the Applicant to a pelvic floor physiotherapist that day.[75] Dr Parkinson provided:
We will review her again in four months time and in the meantime hopefully she will begin to see the pelvic floor physiotherapist and we have also recommended an increased water intake and a stool softener such as Movicol.[76]
[75] Exhibit 1, T Documents, T27, page 217, Medical report authored by Dr Debra Parkinson.
[76] Exhibit 1, T Documents, T27, page 217, Medical report authored by Dr Debra Parkinson.
The Respondent contends that the Applicant’s bowel prolapse was continuing to be investigated during and beyond the Relevant Period, with further treatment and review to occur and therefore the condition cannot be found to have been fully diagnosed, treated and stabilised at the Relevant Period.[77]
[77] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, page 11, paragraph 71.
At the Hearing the Applicant told the Tribunal that she is still getting treatment for her bowel and rectal prolapse condition and that she now has bowel cancer and is expecting to need a colostomy bag in the future.
Based on the medical evidence before the Tribunal, and the evidence provided at Hearing by the Applicant, I find that the Applicant’s bowel and rectal prolapse condition was fully diagnosed, however was not fully treated or fully stabilised during the Relevant Period as she was still engaging in treatment and investigation of the condition at the Relevant Period.
As I have found that the Applicant’s bowel and rectal prolapse condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Continuing Inability to Work
As I have found that the Applicant does not have a total of 20 impairment points either on one table, or cumulative across multiple tables, there is no need to consider whether the applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s right upper limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the evidence before the Tribunal, I find that the condition caused the Applicant a moderate functional impairment and can be assigned 10 points under Table 2 of the Impairment Tables.
I find that the Applicant’s left upper limb condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s shoulder and neck conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
I find that the Applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the evidence before the Tribunal, I find that the condition caused the Applicant a mild functional impairment and can be assigned 5 points under Table 5 of the Impairment Tables.
I find that the Applicant’s bowel and rectal prolapse condition was fully diagnosed, however was not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..................................[SGD]......................................
Associate
Dated: 7 May 2019

Dates of hearing: 9 April 2019

Applicant: By Phone

Advocate for the Respondent: Mr Andrew Summers

Solicitors for the Respondent: Department of Human Services

[2019] AATA 806

7 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Dates of hearing:	9 April 2019
Applicant:	By Phone
Advocate for the Respondent:	Mr Andrew Summers
Solicitors for the Respondent:	Department of Human Services