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

Michelsen; Secretary, Department of Social Services and (Social services second review) [2020] AATA 324 (26 February 2020)
Division:GENERAL DIVISION
File Number(s): 2017/4058
Re:Secretary, Department of Social Services
APPLICANT

AndLeanne Michelsen
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:26 February 2020
Place:Brisbane

The Tribunal sets aside the decision under review and replaces it with a decision that the Respondent did not qualify for the disability support pension during the qualification period.
...............................[SGD]...............................
Member D K Grigg
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 – whether continuing inability to work – decision under review set aside.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
26 February 2020
INTRODUCTION & CLAIM HISTORY

On 8 April 2016 Ms Leanne Michelsen (“Ms Michelsen”) lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as:[1]
[1] Exhibit 1, T Documents, T48, pages 191-220, Ms Michelsen’s Claim for DSP dated 8 April 2016.
·right hand injury
·secondary left-hand
·depression
·arthritis knees
·right shoulder pain
·lower back pain
In May 2016 the Department of Human Services (“Centrelink”) organised a job capacity assessment of Ms Michelsen from a registered occupational therapist in order to ascertain Ms Michelsen’s eligibility for the DSP. The JCA reported that:[2]
[2] Exhibit 1, T Documents, T51, pages 224–231, job capacity assessment report dated 26 May 2016.
(a)Mr Michelson’s right hand injury (of synovitis and tenosynovitis) was fully treated and stabilised and that Ms Michelsen had undertaken all reasonable treatment;
(b)Ms Mickelson’s back pain condition could not be considered fully treated and stabilised because there was insufficient medical evidence to verify that Ms Mickelson had undertaken ongoing conservative management such as physiotherapy, hydrotherapy, active self-management strategies or consulted an appropriate specialist (for example orthopaedic specialist, rheumatologist or pain specialist);
(c)in relation to her knee condition, Ms Mickelson advised that future treatment in terms of surgery was planned, as well as surgery to reduce her weight;
(d)in relation to her asthma, the condition could not be assessed because there is no medical information available;
(e)Ms Mickelson was diagnosed with morbid obesity, but the condition is unable to be considered fully treated and stabilised because she has not undertaken ongoing dietician or exercise physiologist intervention or ongoing psychological counselling. Ms Mickelson advised the JCA that she had future specialist treatment planned;
(f)in relation to Ms Michelson’s gastroenterological conditions (gastroparesis, dysgeusia and gastro-oesophageal reflux disease) the conditions are not considered fully treated and stabilised as there is insufficient treatment and medical evidence available; and
(g)in relation to Ms Mickelson’s anxiety and depression, there was insufficient medical evidence available and there was no evidence of any formal diagnosis made by a clinical psychologist or psychiatrist.
Based on the JCA assessment, Centrelink rejected Ms Michelsen’s claim for DSP on 15 June 2016.[3]
[3] Exhibit 1, T Documents, T52, pages 232–233, Letter from Centrelink dated 15 June 2016.
Subsequent to Centrelink’s decision to reject her claim for DSP, Ms Mickelson obtained further medical information and sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).
Dr Rodrick Jones, General Practitioner, provided the following information regarding Ms Mickelson’s medical conditions:[4]
[4] Exhibit 1, T Documents, T56, pages 237–238, report of Dr Jones dated 19 August 2016.
·Gastroparesis and gastro-oesophageal reflux disease - diagnosed in 2014; fully diagnosed, treated and stabilised; causes abdominal pains and constipation.
·Psoriasis - diagnosed by a dermatologist 28 years ago. The condition is permanent but unstable due to emotional and financial stresses as is typical with this condition.
·Chronic adjustment disorder and mixed anxiety and depression - diagnosed by Dr Segkar, psychiatrist, in July 2016; treated by psychologist Alison Tunney for anxiety, depression and panic attacks. These conditions are permanent, diagnosed, stabilised and treated.
·Tenosynovitis - she has an inability to hold 1 L of milk without the support of both hands and is unable to do repetitive similar activities. She has frequent swelling in the right wrist and reaching out pick up objects is restricted by shoulder pain.
·Ms Mickelson is unable to sit for more than 30 minutes due to pain.
·Asthma - permanent, stable and fully treated by appropriate medications.
·Obesity - permanent, fully treated and stable within the financial constraints that apply to lap band surgery. Ms Mickelson makes an effort to comply with dietician advice and no repetition or reiteration of such advice is likely to be of any benefit. Her exercise abilities are limited by her arthritis in her knees, her back pain and financial considerations. An exercise physiologist intervention is planned and will include diet and exercise review. She was referred in June 2015 to an appropriate specialist for lap band surgery which she will have when it is affordable and available.
The review by the ARO was unsuccessful on the grounds that other than Ms Michelsen’s tenosynovitis of the right wrist, her other medical conditions were not fully diagnosed, treated and stabilised during the qualification period, and that her permanent condition only attracted a 5 point impairment rating and not the requisite 20 impairment points.[5]
[5]     Exhibit 1, T Documents, T60, pages 253–258, Decision of ARO and notes dated 17 October 2016.
Ms Michelsen lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[6] The SSCSD found that Ms Michelsen was qualified for the DSP and set aside the ARO’s decision on 7 June 2017.[7] The SSCSD concluded that the Ms Michelsen's upper limb condition was fully diagnosed, treated and stabilised and caused a severe impairment attracting a rating of 20 points under Table 2 of the impairment tables and that Ms Michelson qualified for the DSP.
[6]     Exhibit 1, T Documents, T61, pages 259–260, request statement dated 13 January 2017.
[7]     Exhibit 1, T Documents, T2, pages 4–23, SSCSD’s Decision and Reasons for Decision dated 7 June 2017
The Secretary has sought a review of the SSCSD’s decision by this Tribunal.[8]
[8] Exhibit 1, T Documents, T1, pages 1-3, Application for Review of Decision dated 11 July 2017.
At the hearing Ms Michelson was represented by Mr McNab of Counsel. The Secretary was represented by Ms Forsyth. Ms Michelson gave evidence in person. Dr Keith Adam, Occupational Physician, was called on behalf of the Secretary and gave evidence in person. Dr Adam also prepared a report based on his assessment of the medical information available and his examination of Ms Michelson on 31 October 2017. Ms Allison Tunney, Ms Michelson’s treating Psychologist, gave evidence at the hearing by telephone. Ms Tunney also prepared a report on 4 June 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (“the Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Michelsen must have a physical, intellectual or psychiatric impairment.
(b)Ms Michelsen’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“Determination”).[9]
[9] A legislative instrument made under the Act: see s 26(1).
(c)Ms Michelsen must have a continuing inability to work.
The date for determining whether Ms Michelsen meets the Section 94 Requirements is the date of the claim (in this instance as at 8 April 2016), unless Ms Michelsen becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[10] Therefore, in order to qualify for DSP Ms Michelsen must have met the Section 94 Requirements between 8 April 2016 and 7 July 2016 (“Qualification Period”).
[10] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Michelsen’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[11]
[11] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[12] They are function based[13] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[14]
[12] Determination, ss 4(2) and 5(2)(a).
[13] Determination, ss 5(2)(b) and (c).
[14] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[15]
[15] Determination, see s 6(3).
(a)Ms Michelsen’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, considering available evidence, to persist for more than 2 years.
Ms Michelsen’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[16]
[16] Determination, see s 6(4).
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[17] the following must be considered:[18]
[17] For the purposes of ss 6(4)(a) and (b) of the Determination.
[18] Determination, see s 6(5).
(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.
A condition is fully stabilised[19] if:[20]
[19] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[20] Determination, see s 6(6).
(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;[21] or
[21] For reasonable treatment see s 6(7) of the Determination.
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
“Reasonable treatment” is treatment that:[22]
[22] Determination, see s 6(7).
(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.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
DID MS MICHELSEN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT(S) DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A) OF THE ACT?
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[23]
[23] Determination, s 3.
Ms Michelsen’s Medical Conditions
Right Wrist Condition (tenosynovitis)
In November 2011 an MRI of Ms Michelsen’s right wrist showed localised moderate tenosynovitis.[24]
[24] Exhibit 1, T Documents, T4, pages 94–95, MRI report dated 1 November 2011.
In March 2012, Dr Therese McGrath, Occupational and Environmental Physician, reported that:[25]
[25] Exhibit 1, T Documents, T6, pages 100–105, Report of Dr McGrath dated 15 March 2012.
(a)Ms Michelson developed an onset of right wrist pain over a period performing her duties as a nursing assistant;
(b)Ms Michelson ceased work in October 2011 with no improvement in the panel function of her right wrist;
(c)the diagnosis is de Quervain’s tenosynovitis and flexor carpi radialis tenosynovitis; and
(d)she recommended Ms Michelson have hand therapy and be reviewed by an upper limb surgeon.
Ms Mickelson was reviewed by Dr Anita Clerke, a hand therapist and accredited occupational therapist, in 2012. Dr Clerke reported in April 2012 that she had given Ms Mickelson some exercises to do and had encouraged her not to perform work in awkward positions which generate pain.[26]
[26] Exhibit 1, T Documents, T8, page 107, report of Dr Clark dated 12 April 2012.
In June 2012 Ms Mickelson was reviewed by Dr David Gilpin, Orthopaedic Surgeon. Dr Gilpin reported that in his opinion Ms Mickelson “appears to have some synovitis in the wrist and possible ligament pathology [and] FCR ganglion/tenosynovitis [but that] Ms Mickelson does not have De Quervain’s disease or any base of thumb arthritis”.[27]
[27] Exhibit 1, T Documents, T10, pages 109-115, report of Dr Gilpin dated 4 June 2012.
In June and July 2012 Dr Robert Ng, General Practitioner, reported that Ms Mickelson had pain and swelling in her right wrist and treatment included resting, avoiding exertion and not undertaking repetitive work with her right arm.[28]
[28] Exhibit 1, T Documents, T12–T13, pages 118-119, medical certificates of Dr Ng dated 12 June 2012 and 13 July
2012.
In August 2012 Dr Ng reported that Ms Mickelson was still suffering from pain and loss of movement in the right wrist and that she has been seen by an orthopaedic and hand surgeon and hand therapist but without any success.[29]
[29] Exhibit 1, T Documents, T14, page 120, medical certificate of Dr Ng dated 14 August 2012.
In September 2012 Dr Ng reported to Centrelink that:[30]
[30] Exhibit 1, T Documents, T15, pages 121–127, report of Dr Ng dated 17 September 2012.
(a)Ms Mickelson’s wrist condition was causing pain and weakness;
(b)Ms Mickelson was being treated with a splint, analgesics, a menthol rub and hand exercises;
(c)no further treatment was planned; and
(d)the impact of the condition on Ms Mickelson’s ability to function was expected to persist for more than 2 years.
In December 2012 Dr Ng reported that Ms Mickelson had attended 3 orthopaedic surgeons and that the prognosis for her wrist condition is uncertain.[31]
[31] Exhibit 1, T Documents, T19, page 136, medical certificate Dr Ng dated 3 December 2012.
In January 2013 Dr Ng reported that Ms Mickelson was unable to do housework or look after her personal care and that her left hand wrist was now also painful.[32]
[32] Exhibit 1, T Documents, T20, page 137, medical certificate Dr Ng dated 2 January 2013.
In March 2013 Dr Ng reported that Ms Mickelson had “soft tissue injuries to both wrists and hands”, was unable to use both arms without experiencing pain and was going to see another hand surgeon.[33]
[33] Exhibit 1, T Documents, T22, page 139, medical certificate Dr Ng dated 4 March will 2013.
In July 2013 Dr Ng reported to Centrelink that [34]
[34] Exhibit 1, T Documents, T28, page 150-156, Report of Dr Ng.
(a)Ms Mickelson’s “ligamental injuries” to her right wrist condition was causing pain, swelling and loss of movement;
(b)Ms Michelson was taking medication;
(c)Ms Mickelson has been treated with a splint, analgesics, orthopaedic review and has seen a hand therapist; and
(d)no future further treatment was planned.
Dr Jones reported in December 2013 that Ms Mickelson had an inability to grip with her right hand and was in constant pain if she writes more than one sentence.[35]
[35] Exhibit 1, T Documents, T30, page 158, medical certificate of Dr Jones dated 5 December 2013.
In February 2014 Dr Jones referred to Ms Michelson having arthritis in her right wrist.[36]
[36] Exhibit 1, T Documents, T31, page 159, medical certificate of Dr Jones dated 28 February 2014.
Dr Jones reported in or around November 2014 that Ms Mickelson’s wrist condition:[37]
[37] Exhibit 1, T Documents, T49, page 222, medical certificate of Dr Jones.
(a)continued and was causing local tenderness, an inability to grip or perform simple activities of daily living; and
(b)would continue to impact on Ms Mickelson’s ability to work or study for the next 3 to 12 months.
Dr Jones reported in April 2015 that Ms Mickelson wrist condition was causing pain, spasms and weakness and that she was currently being treated with Palexia.[38]
[38] Exhibit 1, TDocuments, T38, page 169, medical certificate of Dr Jones dated 28 April 2015.
In January 2016 Dr Jones reported:[39]
[39] Exhibit 1, T Documents, T42, pages 173 – 179, report of Dr Jones dated 27 January 2016.
(a)that the condition causing Ms Mickelson the most impact was that of de Quervain’s tenosynovitis;
(b)Ms Mickelson was in constant pain, swelling and tenderness and had weaknesses in her wrist and decreased grip strength; and
(c)she was currently taking various medications which were planned to be continued.
Left Wrist
In 2012 Ms Michelson submitted that she had injured her left wrist through “overuse” as a result of compensating for the loss of use in her right wrist.[40]
[40] Exhibit 1, ST7, page 16, Q-Comp form dated 5 September 2012.
In January 2013 Dr Ng reported that Ms Mickelson was unable to do housework or look after her personal care and that her left hand wrist was now also painful.[41]
[41] Exhibit 1, T Documents, T20, page 137, medical certificate Dr Ng dated 2 January 2013.
In March 2013 Dr Ng reported that Ms Mickelson had “soft tissue injuries to both wrists and hands”, was unable to use both arms without pain and was going to see another hand surgeon.[42] Dr Ng wrote that the condition was temporary.
[42] Exhibit 1, T Documents, T22, page 139, medical certificate Dr Ng dated 4 March will 2013.

In March 2013 Dr Greg Gillet, Orthopaedic Surgeon, reported that Ms Michelson was beginning to experience symptoms of constant pain in her left wrist predominantly in the dorsum of the wrist in the line of the middle finger, and the ulnar two fingers tend to go numb.[43]
[43] Exhibit 1, ST11, page 40, medical report of Dr Gillet dated 4 March 2013.
There is a reference in a report of Ms Michelson’s psychiatrist, Dr Chris Cantor, in March 2013 that Ms Michelson told him “for the last two months her left hand has become unpleasantly numb she believes from compensating for her right but she has not had it formally assessed. Lately she has been using more pain killers for her left wrist”.[44]
[44] Exhibit 1, ST12, page 59 Medico – Legal Assessment of Dr Cantor dated 22 March 2013.
Dr Jones reported in December 2013 that Ms Mickelson had pain in her left wrist, which was causing local tenderness, inability to grip or perform simple activities of daily living.[45]
[45] Exhibit 1, T Documents, T30, page 158, medical certificate of Dr Jones dated 5 December 2013.
In June 2013, Dr Ng reported that the Left ulnar nerve impingement symptoms were temporary and that planned future treatment included getting an Electromyography.[46]
[46] Exhibit 1, T26, page 143, medical certificate of Dr Ng dated 6 June 2013.
Dr Jones reported in September and December 2013 that:
(a)Ms Michelson experienced pain in the left wrist which was likely to persist for two years or more but only affect her capacity for work or study for a period of 3 to 12 months;
(b)past and current treatments included hand physiotherapy, Panadeine Forte as analgesic, Brufen as NSAID and a hand splint; and
(c)planned future treatments were recorded as 'same' in the first certificate, and then 'Allopurinol 100mg/d, Colchicine, NSAID.' [47] The Secretary pointed out that Allopurinol and Colchicine are most used in the treatment of gout.
[47] Exhibit 1, T Documents, T29-T30, pages 157-158, medical certificate of Dr Jones dated 2013.
In medical certificates issued by Dr Jones on 28 April 2015, 21 July 2015, 23 October 2015, and 15 January 2016 no reference was made to Ms Michelson suffering from any left wrist condition.[48]
[48] Exhibit 1, T Documents, T38-41, pages 169-172, medical certificates of Dr Jones dated 2015.
In a Patient Health Summary dated 7 April 2016, no reference is made in Ms Michelson’s active history to any left limb condition.[49]
[49] Exhibit 1, T Documents, T47, pages 189-190, Patient Health Summary dated 7 April 2016.
Dr Jones makes no reference to any left wrist condition in a medical certificate issued in June 2016[50] or in his letter of 19 August 2016.[51]
[50] Exhibit 1, T Documents, T53, page 234, medical certificate of Dr Jones dated 28 June 2016..
[51] Exhibit 1, T Documents, T56, pages 237-238, letter of Dr Jones dated 19 August 2016.
Mental Health
In May 2013 Dr Ng reported that Ms Michelsen had had depression since before 2009 and was taking antidepressants.[52] In Dr Ng’s opinion Ms Michelson’s depression would affect Ms Michelson’s capacity for work for more than two years.
[52] Exhibit 1, T Documents, T24, page 141, medical certificate of Dr Ng dated 2 May 2013.
In July 2013 Dr Ng reported to Centrelink that [53]
[53] Exhibit 1, T Documents, T28, page 150-153, Report of Dr Ng dated 17 July 2013.
(a)Ms Michelson has had depression since 2008;
(b)Ms Michelsen has depressive thoughts, is tearful, has low self-esteem, uses food to satisfy depression, and is sleepless;
(c)Ms Michelsen has seen a psychologist and needs to see a psychiatrist; and
(d)the impact of the condition on Ms Mickelson’s ability to function was expected to persist for more than 2 years.
Dr Jones reported in December 2013 that:[54]
[54] Exhibit 1, T Documents, T30, page 158, medical certificate of Dr Jones dated 5 December 2013.
(a)Ms Mickelson’s depression continued, and she was tearful, had a lot of low spirits and had anxiety and insomnia; and
(b)Ms Michelson was seeing a psychiatrist, attending a support group and taking anti depressant medication.
Dr Jones reported in February 2014 that Ms Mickelson’s depression was permanent and likely to persist for 2 years or more.[55]
[55] Exhibit 1, T Documents, T31, page 159, medical certificate of Dr Jones dated 28 February 2014.
Dr Jones reported in around November 2014 that Ms Mickelson’s depression:[56]
[56] Exhibit 1, T Documents, T49, page 222, medical certificate of Dr Jones.
(a)continued and she was tearful, had low spirits, anxiety and insomnia and was being treated with Edronax; and
(b)would continue to impact on Ms Mickelson’s ability to work or study for the next 2 years.
Dr Jones reported in April 2015 that Ms Mickelson depression continued and she had low spirits, lethargy and agoraphobia and was being treated with Edronax.[57]
[57] Exhibit 1, T Documents, T38, page 169, medical certificate of Dr Jones dated 28 April 2015.
In 2016 Dr Segkar, Psychiatrist, reported that in his opinion Ms Mickelson suffered from chronic adjustment disorder with mixed anxiety and depressed mood and that she also seems to have features of chronic pain syndrome. Dr Segkar confirmed that Ms Mickelson was seeing Ms Alison Tunney, registered psychologist, and that he had recommended that she continue to do this and that she continue taking antidepressants medications.[58]
[58] Exhibit 1, T Documents, T58, pages 240–241, incomplete report extract of Dr Segkar psychiatrist dated 6 October 2016.
On 4 June 2017 Ms Tunney provided a report to the SSCSD. Ms Tunney reported that:[59]
[59]    Exhibit 1, T Documents, T62, pages 261-263, Report of Ms Tunny dated 4 June 2017.
·Ms Mickelson was first referred to her on 18 August 2015;
·Ms Mickelson has been suffering from long-term depression and anxiety for which she takes medications;
·Ms Mickelson is dealing with chronic pain management;
·Ms Mickelson is undergoing an adjustment disorder;
·Ms Michelson’s anxiety manifests in the form of panic attacks and agoraphobia which has persisted since 2015; and
·“She suffers from impoverished sleep patterns and severe, regular migraines which immobilise her. She has a migraine on average once every fortnight. The chronic pain is with her every minute of the day. Medication at best dulls it. She finds it hard to acknowledge that she is so restricted by the limitations of her body as she used to be an extremely active person in life as well as work.”
·“The one session I had with Leanne prior to 31. March 2016 was on 10/12/2015. We have had eleven sessions since then to date.”
·“In the first session on 10 December 2015 the diagnosis was depression with anxiety and chronic adjustment disorder. She suffered agoraphobia which had been present for 8 years at that stage. She was extremely stressed, and her DAS results were D= 21, A=18 and 5=14.
·    Impaired sleeping patterns (wakes up frequently from overthinking).
·    Agoraphobia present for 8 years in 2015.
·    Panic attacks preventing her from shopping and going out in general.
·    Long standing depression, easily moved to tears or labile emotions.
·    Anhedonia
·    Chronic pain and incapacity to cope physically with general every-day tasks.
·    Grief from Brother's death 2010.
·    Alienation from Paul's family by choice. Few friends.
·    Hypervigilance and huge anxiety due to do with Paul returning to severe drinking again. Previously she believes he tried to drink himself to death.
·    Irritation physically and mentally with exacerbated psoriasis rash through her scalp, present in her joints and in skin creases.
We commenced the following treatment:
·    Relaxation exercises and visualisation.
·    Classic de-sensitisation for the agoraphobia
·    Skills dealing with specific panic attacks
·    Gratitude exercises to enhance positive responses over negative ones.
·    Pain management exercises.
·    General CBT therapy with mindfulness.
·    Behavioural modification in dealing with Paul's drinking.”
Right knee
In March 2015 Ms Mickelson had an x-ray of her right knee which showed degenerative changes in the patellofemoral joint.[60]
[60] Exhibit 1, T Documents, T37, page 168, x-ray report dated 17 March 2015.
In August 2016 Dr Jones reported that Ms Michelson had arthritis in her knees.[61]
[61] Exhibit 1, T Documents, T56, pages 237-238, report of Dr Jones 19 August 2016.
Psoriatic Arthritis
In January 2016 Dr Jones reported Ms Mickelson had psoriatic arthritis which was onset on 2 January 2013.[62]
[62] Exhibit 1, T Documents, T42, pages 173 – 179, report of Dr Jones dated 27 January 2016.
Conclusion on Impairment
Considering the above medical evidence, the Tribunal finds that during the Qualification Period Ms Michelsen suffered physical and mental impairments (a right wrist impairment and chronic adjustment disorder with mixed anxiety and depressed mood) and that the requirement in section 94(1)(a) of the Act has been met. This is not disputed by the Secretary.[63]
[63] Exhibit 2, Secretary’s Statement of Issues, Facts, and Contentions dated 29 November 2018, para 38.
In relation to the left wrist condition, the Tribunal considers that the evidence indicates that this condition has not yet been fully diagnosed. While there is reference to Ms Michelson complaining of pain, there are no examination results or medical investigations which have definitively diagnosed the cause of the pain. At the hearing Dr Adam explained that Dr Ng describing Ms Michelson’s left wrist condition as a “soft tissue injury” would more likely to be a working diagnosis and that, typically, if the person had not recovered within a few weeks, it is expected that further investigations, such as an MRI, would be undertaken.[64] Other than an x-ray of Ms Michelson’s left wrist on 26 October 2011, there is no other diagnostic information.[65] There is also a paucity of evidence regarding treatment and the evidence that does exist seems more directed to the treatment of her primary wrist condition, the right wrist. At the hearing Mr McNab was unable to direct the Tribunal to any specific treatment provided to Ms Michelson with respect to her left wrist. As a result, the left wrist condition cannot be considered permanent and no impairment rating can be assigned.
[64] Transcript of proceedings, page 23.
[65] Transcript of proceedings, page 23.
In relation to the gastrointestinal conditions referred to in Ms Michelson’s DSP application, while there is reference in her general practitioner’s report of these conditions being fully diagnosed, treated and stabilised, there is no evidence regarding whether these conditions are intermittent or continuous or what impact, if any, they are having on Ms Michelson’s ability to function. As a result, the Tribunal is unable to make an assessment of these conditions for the purpose of this application.
In relation to the right knee condition and psoriatic arthritis condition, there is a paucity of medical evidence which means that the Tribunal is unable to make an assessment of these conditions for the purpose of this application.
In relation to the asthma and obesity conditions, while there is reference in her general practitioner’s report of these conditions being fully diagnosed, treated and stabilised, there is no evidence of what impact, if any, they are having on Ms Michelson’s ability to function. As a result, the Tribunal is unable to make an assessment of these conditions for the purpose of this application
There was some reference made to Ms Michelson having pain in the right shoulder. However, there is a lack of medical and corroborating medical evidence and therefore the Tribunal is unable to make an assessment of this condition for the purpose of this application. At the hearing Mr McNab confirmed that Ms Michelson was not relying on the shoulder condition for the purpose of this application.[66]
[66] Transcript of proceedings, page 11.
DOES MS MICHELSEN’S RIGHT WRIST CONDITION ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
Is Ms Michelsen’s Wrist Condition permanent and likely to persist for at least 2 years?
It is not in dispute that Ms Michelson’s right wrist condition is fully diagnosed, treated and stabilised and that an Impairment Rating can be assigned.[67]
[67] Exhibit 2, Secretary’s Statement of Issues Facts and Contentions dated 29 November 2018, para 41.
Using the Impairment Tables
The level of impact of Ms Michelsen’s Right Wrist Impairment has to be assessed against the descriptors[68] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[69]
[68] Determination, see ss 3 and 5(3).
[69] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed based on what the person can, or could do, not based on what the person chooses to do or what others do for the person.[70]
[70] Determination, see s 6(1).
The Determination requires that the following information must be considered in applying the Tables:[71]
[71] Determination, see s 7.
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[emphasis added]
The following information must not be taken into account in applying the Tables:[72]
[72] Determination, see s 8.
(a)symptoms reported by Ms Michelsen in relation to her condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Michelsen’s local community.
Which Tables are appropriate is determined by:[73]
[73] Determination, see s 10(1).
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[74]
[74] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[75]
[75] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[76]
[76] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 2 of the Determination, which deals with Upper Limb Function, is the relevant Table.
The introduction to Table 2 provides that:

·   Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);

a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

results of diagnostic tests (e.g. X-Rays or other imagery);

results of physical tests or assessments.

·   For the purposes of this Table upper limbs extend from the shoulder to the fingers.

The descriptors for Impairment Rating of 5, 10 or 20 point rating under Table 2 are:

78.     5

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

(1)    The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)    picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)    handling very small objects (e.g. coins);

(c)    doing up buttons;

(d)    reaching up or out to pick up objects.

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.

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.

An issue which arose in the course of submissions was whether the Tribunal needed to assess Ms Michelson based on how she was able to function using both her hands and whether the Tribunal only needs to consider what Ms Michelson can do with her right hand alone. Table 2 does not specifically say how to interpret the descriptors in this regard. However, the Tribunal considers that, unless specified, it should be interpreted as what a person can do using both arms, not just the impaired arm. This interpretation is preferred because:
(a)what is being assessed is the degree of a person’s functional impairment. It would be somewhat illogical in that context to decide that a person could not perform the activities described in the Table by looking at the impaired hand or arm alone when in reality, using both arms/hands the person could perform those functions (albeit with some difficulty); and
(b)while the Tribunal in this instance is not bound by previous Tribunal decisions, these previous decisions have concluded on numerous occasions that one needs to consider a person’s ability to function using both limbs.[77] Mr McNab was not able to refer the Tribunal to any authority to the contrary. Where appropriate it is desirable that there be consistency in administrative decisions making.[78]
[77] See Sabeei and Secretary, Department of Social Services [2014] AATA 815; Secretary, Department
of Social Services and Dockerty [2016] AATA 477; Baxter and Secretary, Department of Social Services [2017] AATA 1544; Miller and Secretary, Department of Social Services [2019] AATA 2315.
[78] Hneidi And Others v Minister for Immigration and Citizenship (2010) 265 ALR 292, at [43].
Evidence of Impact on Function

In May 2016 Ms Michelson told the JCA that:
(a)she cradles 2 litre cartons in her right hand or uses the left hand to carry objects;
(b)has difficulty doing buttons and avoids wearing clothes with buttons;
(c)she uses her right hand to hold washing on the line and her left hand to peg the clothes on;
(d)she struggles to exert sustained pressure through pens when writing; and
(e)she is able to reach out or up but struggles to move her right wrist to pick up objects when reaching.
In 2012 Dr McGrath, Occupational and Environmental Physician, engaged by Workcover Queensland, reported that Ms Michelson’s:[79]
(a)Extension and flexion was limited to 70 and 60 degrees respectively; and
(b)Ulnar and radial deviation was limited to 30 and 20 degrees respectively.
[79] Exhibit 1, T Documents, T6, pages 100-105, Report of Dr McGrath dated 15 March 2012.
In June 2012 by Dr David Gilpin, Orthopaedic Surgeon, reported that Ms Michelson:[80]
(a)did not display any major pain behaviours; and
(b)she had full range of movement in the wrist.
[80] Exhibit 1, T Documents, T10, pages 109-114, Report of Dr Gilpin dated 4 June 2012.
In January 2016, Dr Jones reported that Ms Michelson suffered from "constant pain, swelling and tenderness, weakness in wrist and decreased grip strength".[81]
[81] Exhibit 1, T Documents, T42, page 175, Report of Dr Jones dated 27 January 2016.
In May 2016 the JCA considered that Ms Michelson’s Right Wrist Impairment was permanent and recommended assigning 5 points under Impairment Table 2.[82]
[82] Exhibit 1, T Documents, T51, page 228, JCA Report dated 26 May 2016.
In August 2016, Dr Jones reported that Ms Michelson was unable to hold one litre of milk without using both hands.
In a subsequent JCA file review in October 2016, the JCA recommended the assignment of 10 points under Impairment Table 2 because medical evidence was supplied indicated that Ms Michelson had an inability to hold 1 ltr of milk without the support of both hands.[83]
[83] Exhibit 1, T Documents, T59, page 248, JCA report dated 10 October 2016.
In November 2017, Dr Keith Adam reported that, based on his assessment:
(a)Ms Michelson had full range of movement with extension and flexion;
(b)Ms Michelson had slightly reduced range of movement with ulnar and radial deviation;
(c)Ms Michelson had full range of movement with pronation; and
(d)the level of disability described by Ms Michelson was greater than expected having regard to the objective and clinical evidence. He opined that the Respondent's impairment from her right upper limb condition was best described by the criteria equivalent to a 5-point rating under Table 2.[84]
[84] Exhibit 1, ST15, pages 80-89, report of Dr Adams dated 13 November 2017.
The Secretary relies on Dr Adam's assessment of the Respondent's level of impairment and contends that her impairment from her right upper limb condition ought to be assigned no more than 5 points under Impairment Table 2.
At the hearing Dr Adam explained that in his opinion an Impairment Rating of 5 points was appropriate, taking into account what Ms Michelson was able to do using both hands. Dr Adam told the Tribunal that “[Ms Michelson] doesn’t have limited movement or coordination. I mean she demonstrated to me a reasonable range of movement.”[85]
[85] Transcript of Proceedings, pages 32-33.
During cross-examination Dr Adam acknowledged that he had not specifically tested whether Ms Michelson was able to perform the tasks referred to in the Table 3 descriptors.
The Tribunal does not need to place any significant weight on Dr Adam’s opinion because:
(a)his assessment was conducted more than 12 months after the Qualification Period; and
(b)there are some doubts about his assessment given that he did not specifically examine whether Ms Michelson was able to perform the tasks referred to in the Table 3 descriptors.
At the hearing Ms Michelson gave the following evidence regarding her right wrist condition:[86]
[86] Transcript of Proceedings, pages 74-94.
In relation to your right wrist in the period, the relevant period, can you tell the tribunal your level of functionality in relation to your wrist? Do you understand what I mean by that?---Yes. I do. And not very much. I tried, back then, and - but I couldn’t do sweeping or vacuuming. I couldn’t stand to do the dishes or hold them in there. So, basically, it came to, if somebody left me a basket of clothes near the washing machine, I could put them into the machine and turn the machine on and that was - I couldn’t carry the basket or hang it out. So, that was basically it and I probably would have spent, in that period of time, about 50 per cent of my day in bed, but now, it is a lot more.
You are talking about folding washing, sweeping?---Yes. I couldn’t fold it, but - because I just did everything with my left hand and that is why, you know, my left hand I get a lot of pain in, but not as much as I get in this hand, because I would be torn tendon and on here. The last doctor that I saw, he wanted to do a whole hand reconstruction and he wrote that I refused the surgery, but I never did. I asked him could I have two weeks to think about it, because he said it was only a 30 per cent chance that it was going to work and he said, more than likely, I would be in more pain than what I was already in.
I couldn’t hold plates, it was too much weight. But we had to start more reorganising the house, if you know what I mean. So, instead of buying two litre milks, it would be, you know, one litre milks, but pour it into a two litre milk bottles, just the small amount that I would need that day and having a light cup that I can pick up with my left hand. And just having to change my routine and everyone had to change and that is hard too, because, you know - - -
Talking about the bottles of milk, how would you go taking the lid off, is the lid off? Can you describe that?---Well, no, but everybody knew not to do it back up tight, so it was just loose so I can just hold it like that and just undo it with my left hand.
This is all being recorded, so I will just - - -?---Sorry, hold it with my forearm on my right hand.
So, is that your left forearm?---That is my right, right forearm and my left hand to undo the lid.
So, you are cradling it against your body?---Yes.
And then, you undo the lid?---Yes.
Is that just in relation to milk bottles?---Well, other than that, cans of soft drink. So, they, obviously, I would have to cradle that to click it open.
What about bottles of soft drink?---No. We didn’t buy any bottles, that was my point, there were just too heavy.
What about opening canned goods, for example?---Well, I don’t do any of the cooking anyway and my husband has always been the cook. But my daughters had to, sort of, step in and be mum.
Just in relation to moving and items, is it your evidence that you have a lot of difficulty with attending to moving things, plates?---Yes.
And sweeping, all those sorts of things?---I just can’t do it.
And that is in the relevant period?---Yes.
What about the use of keyboards, for example?---No.
…even the simple reading a newspaper, even if I put it on the bed, my eyes would start to go. I couldn’t turn the pages, so that was gone. Colouring in was a lifestyle, but I couldn’t even colour in.
You had difficulties, or you couldn’t hold a pencil, I think, you said colouring in?---Yes.
What about writing?---No. I couldn’t - I could write as about a sentence back then. But now, I am lucky to get through my signature. Usually at the chemist they say to me, you know, “Just squiggle it, it is okay”.
What about the turning of the pages of the book? I think you also said you had troubles with that?---Yes. I can’t do that.
I think you said Crystal and your husband, around the relevant period, were helping you, was that getting dressed?---Everything.
Everything, so that includes showering?---Washing my hair, brushing my hair.
What about shoes?---Yes. That was why I buy - everything slides. Slipper slides, shoe slides, just so I can do something.
MR McNAB: And when you get out of bed, how would you do that?---Well, on my own, it would be one leg at a time and that is why it became really hard as we went on because I couldn’t push up like normal people can.
Just, sorry to stop you there, you have demonstrated with both hands; just because this is being recorded, just so - - -?---Sorry, yes, both hands and people can push themselves up in bed, that was just too painful. It was like I felt it was going to break my hand doing it.
There is also a reference to you being able to hold washing on the line and you use your right hand to hold washing on the line and then, you use your left hand to peg clothes and that is - - -?---That would have been - - -
Just give me a moment - it is in the Job Capacity Assessor’s report?---Yes.
That was submitted on 10 October, so just after the relevant period, but you were reported as saying that you could do the washing at the time?---No. What I said to - they just pick what they say. As I said, I have tried to do that but it is too painful. So, they just haven’t written all of it or they have just taken it - okay, that is something you can do. But what it was I - actually I remember that conversation and yes, I said I gave it a go with light washing, but it wasn’t that, it was holding my shoulders above my head and trying to open a peg with my wrist, it was just shooting pain and I couldn’t do it. I did give it a go.
You said in your evidence, just before, that you couldn’t do the sweeping or vacuuming, you couldn’t stand to do dishes, but you could put the clothes in the washing machine, is that right?---Yes. With my left hand, if it was - the basket was at the machine, yes, just light clothes, I could.
If all the washing came out and you were asked to carry the basket, you wouldn’t be able to do that?---I wouldn’t even take the washing out, no. It would be too heavy.
When you say, “I wouldn’t take the washing out”, the washing out of the machine, or carrying the basket?---Washing out of the machine.
But you can put it in?---I put it in and I can put the powder in, but I am not getting it back out and I am not hanging it.
So, when you are talking about the powder, you just scoop it and put it in?---Which is right beside the washing machine
I just wanted to clarify what you said in terms of couldn’t wash dishes and you know, it was difficult. Is that because standing at the kitchen sink washing dishes would hurt your back?---My hands, but now, it hurts my back and hands.
But in the relevant period?---In the relevant period, it was my hands. I couldn’t hold a plate and I would have to hold a plate with my left hand and wash with my right and that is the hand that hurts. And I gave it a go, gave it a good go and it was really too painful. I am not good with pain and I - someone probably is stronger than me might have been able to push through for a couple of months more than I could have. But I doubt it.
[emphasis added]
Ms Michelson was able to demonstrate that she can pick up a light cup with her left hand, can hold a tissue with her right hand but could not use her right hand to pull the tissue out of the box. Ms Michelson also acknowledged that she was able to sign her DSP application and was able to complete the DSP form with the help of her daughter.
Conclusion
The difficulty in this matter is the lack of corroborating evidence of Ms Michelson’s ability to function. The Tables make it clear that one cannot rely on self-report alone. This can be very difficult to apply in practice because a lot of information gleaned from medical reports is based on the self-report of applicants.
In relation to an Impairment Rating of 20 points:
(a)para 1(a) does not apply because Ms Michelson does not have an amputation and is able to move her left arm;
(b)para 1(b) does not apply because there is no evidence that Ms Michelson has difficulty carrying objects when using an assistive device;
(c)para 1(c) does not apply because there is no corroborating evidence regarding Ms Michelson’s use of a keyboard and further there is no evidence that any appropriate adaptations to a keyboard have been made;
(d)in relation to para 1(d), there is some evidence that Ms Michelson has difficulty writing with her right hand but there is limited evidence regarding the severity of her ability to write; and
(e)there is no corroborating evidence regarding Ms Michelson’s ability to turn the pages of a book.
As a result, an Impairment Rating of 20 points for Ms Michelson’s Right Wrist Impairment is not warranted.
In relation to the 10-point descriptors:
(a)there is evidence that Ms Michelson has some difficulty picking up a 1 litre carton of liquid or picking up items, requiring her to use both hands;
(b)Ms Michelson was still capable of writing in the Qualification Period, although she had difficulty; and
(c)there is no corroborating evidence regarding doing up buttons or tying shoelaces or using a keyboard or unscrewing a lid.
Ms Michelson did not call her daughter or husband who live with her to give evidence to corroborate her evidence and the medical practitioners’ reports mainly refer to her having to use both hands to perform some activities.
Due to the lack of corroborating evidence it is difficult to assess whether a 5 or 10 point rating is appropriate. Where an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[87]
[87] Determination, see s 11(1).
Mr McNab acknowledged at the hearing that in contending that a 20-point rating was appropriate he was relying on Ms Michelson’s own self-report and the fact that Dr Adams did not specifically test the descriptors. The fact that Dr Adam did not test against the descriptors may go to the relevance or weight that should be given to his opinion for the purpose of making an assessment under the Tables, but it does not assist Ms Michelson in establishing a 20-point rating is appropriate. Mr McNab also acknowledged that Dr Jones’ opinion that her ability to hold a litre carton was severe was only if she did not use both hands.
As a result, the Tribunal finds that a 5-point Impairment Rating should be assigned to Ms Michelson’s Right Wrist Impairment. If her condition has deteriorated since 2016 she can reapply for the DSP with up to date corroborating evidence.
DOES MS MICHELSEN’S MENTAL HEALTH IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
Is Ms Michelsen’s Mental Health Condition permanent and likely to persist for at least 2 years?
It is not in dispute that Ms Michelsen’s mental health condition was fully diagnosed as at the Qualification Period.
The Secretary contends that Ms Michelsen’s mental health condition was not fully treated and stabilised and refers to the fact that:
(a)Dr Segkar had only introduced Citalopram and reducing the dosage of Edronax in July 2016;
(b)at the end of the Qualification Period, in July 2016, Dr Segkar recommended that Ms Michelson continue her treatment with Ms Tunney;
(c)Ms Tunney has only seen Ms Michelson once before the Qualification Period and only two times during the Qualification Period; and
(d)Ms Michelson’s treatment was still ongoing at the end of the Qualification Period.
At the hearing Ms Tunney told the Tribunal that she first saw Ms Michelson on 10 December 2015 and then on 10 occasions in 2016 between June and November. In terms of the treatment provided to Ms Michelson, Ms Tunney said during 2016 they used relaxation, breathing and mindfulness techniques and cognitive behavioural therapy and that Ms Michelson’s therapy was ongoing. Ms Tunney acknowledged that the treatment was not completed within the Qualification Period, but she said she was not expecting any significant improvement in Ms Michelson’s condition. As at the Qualification Period Ms Tunney said she “probably thought there might be minimal but even minimal improvement is better; it might not get somebody back to work, but it might improve their everyday life”.[88] Ms Tunney was asked about what pharmacological treatment Ms Michelson was receiving when she first met her. Ms Tunney’s recollection was that Ms Michelson was taking Citalopram. However, upon consulting her notes Ms Tunney acknowledged that Citalopram was not introduced until 26 July 2016. Ms Tunney said she was probably not aware of the changes in Ms Michelson’s medication and the dosages. It was suggested to Ms Tunney that because Ms Michelson had only commenced taking Citalopram in July 2016 that she was not fully treated at the Qualification Period. Ms Tunney responded as follows[89]
I would say that there is nothing to say that it is not fully treated, because in - there can be changes to a medication in the hope that there might be improvement. But that doesn’t necessarily mean that that is going to do for the rest of their life, as it were.
But would it be fair to say, then, that you can’t really say that the condition has been fully treated until, you know, that a passage of time has passed for her to - when I say, “Her” sorry, Ms Michelsen - to get used to taking the Citalopram and see whether there has been any effect, would you say?---Fine, but then, I would argue against though, what - has there been irrespective of me knowing the exact date of the change of medication - was there much change in her condition and I would say, “No”.
But you just admitted before that you didn’t know when her medication changed?---No. But there was no change in her outlook or her capacity in her personal life. So, even though I was not aware of the change in medication, they are not miracle drugs. There was no change really in her ability, nor her quality of life. So, I would still say, even though there was a change there in medication, which I obviously got wrong there, I would still say that there was no difference. She didn’t suddenly be able to see things differently or be able to do anything to get outside and meet with friends. There was no great sense of behavioural change. But yes, I will say, the medication change I was not aware of that at that time, but there was no change in behaviour. So, that to me, would conclude that it is stable. She has not changed
MEMBER: Ms Tunney, it is Member Grigg, I just have a couple of questions. Earlier in your evidence, you said that after two or three sessions you didn’t think that there would be an significant improvement in Ms Michelsen’s ability to function, even with treatment. I was just wondering, how did you come to that conclusion?---I came to that conclusion mainly through the things - seeing how she responded to the initial items that I mentioned in the treatment part. And generally, with her ability to have insight and her amount of psychic energy, I guess, knowing that is not the word - mental energy that she had to actually change things.
At that stage, you just thought that over a two-year period there couldn’t be any improvement of any significant nature?---You still try.
Of course. No, I understand that and I understand your evidence that there might be some minimal improvements and that you work on them incrementally?---Yes.
It was just that I was just more interested in the fact that after three sessions you had determined that there would be no significant improvement, irrespective of all the treatment that you were proposing?---One - yes. It is a little difficult because I haven’t got, you know, empirical results with that, or anything, but it is just that, you know, that sense that you have. I can’t prove by figures, or anything in that regard, but that was my impression
[88] Transcript of Proceedings, page 63.
[89] Transcript of Proceedings pages 64-65.

In relation to the Citalopram, Ms Michelson told the Tribunal that Dr Segkar had changed the medication because her previous medication has resulted in significant weight gain. There is no evidence that the change in medication during the Qualification Period was for the purpose of resulting in a significant improvement in Ms Michelson’s ability to function. Ms Tunney confirmed that she observed no remarkable change in Ms Michelson after the changes made to her medication.
Ms Tunney clearly believed that the planned treatment may have some minimal benefits for Ms Michelson but that there would not be any significant improvement.
A condition can be considered “fully treated” and “fully stabilised” even where reasonable treatment has not been undertaken if significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result.
The medical evidence establishes that Ms Michelsen’s mental health impairment was permanent during the Qualification Period. There was evidence to contradict the evidence of Ms Tunney that treatment would not significantly improve Ms Michelson’s ability to function.
An Impairment Rating using the Impairment Tables can now be assigned.
Relevant Impairment Table and Impairment Rating
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The introduction to Table 5 provides that:

·           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).

·           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).

·           Self-report of symptoms alone is insufficient.

·           There must be corroborating evidence of the person’s impairment.

·           Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

o    a report from the person’s treating doctor;

o    supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;

o    interviews with the person and those providing care or support to the person.

·           In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.

·           The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.

·           The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.

·           For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

In order to assign an Impairment Rating of 10 points, the evidence would need to show that there is a moderate functional impact on activities involving mental health function.
The descriptors for an Impairment Rating of 10 points are:

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

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

(a)self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2: The person will often refuse to travel alone to unfamiliar environments.

(c)interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)work/training capacity.

The descriptors for an Impairment Rating of 20 points are:

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

116.    (1)The person has severe difficulties with most of the following:

117.    (a)self care and independent living;

118.  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.

119.    (b)social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

121. (c)interpersonal relationships;

122.  Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

123.  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.

124.    (d)concentration and task completion;

125.  Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

126.  Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

127.    (e)behaviour, planning and decision-making;

128.  Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

129.    (f)work/training capacity.

130.  Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

Evidence Identifying the Loss of Function

Ms Michelson gave the following evidence at the hearing:[90]
[90] Transcript of proceedings, pages 83-101.
In relation to your mental health, at the time of the relevant period, did you have issues relating to your mental health? I think you were saying you were lying in bed; was that because of your mental health, or was it because of pain, or was it a grouping of a lot of things?---Yes. It was grouping of a lot of things, but a lot of it mental health and a lot of it I was just not coping with the pain.
What about your social and recreational activities at the relevant period?---Well, once I stopped work, that was it, really. We didn’t socialise anymore.
What about going out to the shops, or going on outings?---I just didn’t feel like going anywhere.
Was that at the relevant period?---Yes.
How long has that been going on for?---I still very rarely go anymore. I used to go to the shops every night with my husband to get groceries that we - day to day and Heidi does it all now with my husband. I just don’t have the motivation and plus, by the time I have gone around the supermarket, I am that exhausted and in that much pain that it just wasn’t worth the effort.
What about other interpersonal relationships, such as friendships?---Yes. I don’t keep up with my friends anymore.
Did you have friends prior to the relevant period?---Yes. Yes. And there is probably two friends that, you know, I will see once in a blue moon they will turn up at the door or, you know, but I think when I went through WorkCover, that is when - because they - well all the girls lied, they were told to, by the company and I don’t think they wanted to face me, because had they told the truth I would have totally won my case. But it was – yes
What about your span of concentration around the relevant period?---I don’t have a great - yes, it is - probably because things just get too hard. I will go to do something and then, I can’t finish it anymore, so I will just go - and sometimes, it is just my thinking. Like, I will be in the kitchen and I think, what did I come in here for, so I will walk back out and then, I will remember 5 I was coming in to get such and such. And I just, you know - or I see something and I think, that’s what I had to do that and I will forget what I have done there and yes. So, a lot of that happens.
And that has been going on subsequent as well?---Yes. Yes.
MEMBER: Can I ask a quick question there? You said that now that you are on Citalopram, that your mind is a bit clearer?---Yes.
Are you finding that aspect has improved a little bit from changing the medication?---No. I have - I am a bit clearer in the mind, but yes, I just - I don’t think it - I have got more anxiety, I think my anxiety has gone higher and yes, it just - my brain just goes a million miles an hour.
MR McNAB: What about your thoughts, planning and decision-making around - - -?---I don’t have to do that or I won’t. I just don’t. I just leave everything now up to the kids and my husband.
You were talking about your friends as well. You have got a couple of friends that you keep in contact with; how do you keep in contact with them?---As I said, every now and then, in a blue moon, they will turn up on my doorstep. Yes.
Do you keep in contact with them via email, Facebook, phone, do you do social - - -?---I don’t have Facebook and no - well, my husband does talk to my friend’s husband, say, by phone at times, because, you know, Howard will come and mow our lawns or something like that
Just that when you socialise with your two close friends, you do it at home?---Yes.
Do you ever go out for coffee?---Not anymore.
Not anymore? What about at the relevant period? Remember, we have got to cast our minds back to - - -?---Yes. Not since I injured my hand. Back when I was working, yes, probably every month that we would go to the club and all sorts of things. But once I injured myself it was - - -
There is one thing I did want to ask you. You wrote an email to the tribunal and you said you were going on holidays?---Yes. That was on the 14th and exactly 14 November and because we were going on a cruise.
On a cruise?---And that was somewhere where I could just lay down on a bed and relax and my husband could party and have it with the kids
But then, you went on another cruise in 2017 and then, 2018?---Yes.
117.Ms Tunney reported:[91]
[91] Exhibit 1, T Documents, T62, pages 261-263, report of Alison Tunney dated 4 June 2017.
(6)(a)Self care: Leanne relies on her husband or daughter to wash her hair and even to do her brassiere up. On several occasions, she has presented without her hair being brushed and without a brassiere. She cannot raise her arms to complete such activities. Leanne can stand for approximately three minutes so she can wash the dishes in several spurts but cannot stand long enough to cook. She cart put a washing load on but has to get another member of the household to hang them out. She can't vacuum, change the sheets. She doesn't usually shop and If she does go, she cannot bend and retrieve items to put in the trolley. She cannot clean the shower or bath which she finds frustrating.
(b) Social/ recreational activities and travel: Leanne does not attend any form of entertainment. Firstly, her depression prohibits her wanting to socialise. Financially they are less likely to be active socially. She can drive but she is only confident driving from Ningi to her G.P or to the local shops. She relies heavily on her husband and daughter to drive and accompany her to activities outside the home.
(c) Interpersonal Relationships: Leanne has lost many of her friends that she had whilst working as an AIN in aged care. She is alienated from her husband Paul's family due to an unfortunate Incident involving Paul's mother which resulted in Leanne being charged with fraud. She cannot forgive them. Leanne's mother and brother live in Hornsby New South Wales. Her father died when she was 18 years old and her brother died in a motor bike accident In 2010. Her daughter Heidi lives with her and Paul again and Is expecting a baby in September.
(d) Concentration and task completion: Leanne has found that her focus and concentration have diminished. Short- term memory has been affected not her long-term memories. It does distress her and makes her feel inadequate.
(e) Behaviour, planning and decision making: Leanne considers that her depression has lessened her ability to be spontaneous In deciding to undertake an activity. She is able to plan a birthday party for instance still if the need arises, however the desire to do anything is greatly reduced due in part to anhedonia and general anxiety.
(f) Work/ training capacity: I do not believe that Leanne Is mentally or physically able to consider working, She struggles daily to maintain a home, her quality of life and is heavily reliant on her husband and daughter to help her dress and shower and perform usual dairy activities. She is under enormous stress at present especially having a husband who is terminally ill. She Is fearful of the future and is finding many issues overwhelming. I doubt very much that Leanne's future will find her working even in a part time capacity. This lady will require on-going psychological support in the future. Leanne was very proud of her work ethic and she enjoyed her job as personal carer. She was a hard worker who hardly ever took sick days off. She feels she is a very different person now. Getting through each day is a struggle. She has fully cooperated with her disability job agency but gets exasperated when they suggest she could "sort potatoes for packaging". Her hands are extremely painful. They suggest she could be a door greeter but she struggles to stand for five minutes.
My experience: I have been a Psychologist since 1994. I worked in the homeless sector for Anglicare as a Manager of a Hostel with a compliment of 14 staff (social workers and psychologist). During those ten years I was dealing with homeless women most with a dual diagnosis. I have also worked as Alzheimer's Australia's Programme Manager for early onset dementia, educating and supporting patients and their carers. I have enjoyed a successful private practice since 2008 for 11 years and have worked in the Caloundra, Bald Hills areas I now practice in the Bribie Island, Beachmere, Caboolture region. I have a variety of clients ranging from 11 years to 95years of age. I have provide reports for Court hearings and have supervised many parolees. i also provide services for WorkCover, OVA, Medicare and the Department for Child Safety. My major work is providing services for Medicare, Brisbane Mind and the Brisbane Mind Suicide PreventiOn Program. Prior to being a Psychologist I was an R.N in palliative care. The information provided here is the truth as far as I am aware. Information has been gleaned from Mrs. Michelsen and Dr. RoderickJones, her General Practitioner. I hope this Information is of use to you in your deliberations
Prior to giving evidence at the hearing Ms Tunney was provided with a copy of Table 5 of the Determination. At the hearing, when asked to consider the descriptors in Table 5, Ms Tunney said that in her opinion she “would probably assess her at 20”. She went on to say “if there was something between 10 and 20, it might but I would veer more on the 20 rather than the 10. It does not - 10 does not accurately describe how she was at that time”.[92] “I have two options and having only two options, then, I would opt for the 20.”[93] Ms Tunney was then taken through each of the descriptors in Table 5 for a 20-point Impairment Rating and gave the following evidence:[94]
[92] Transcript of proceedings, page 58.
[93] Transcript of proceedings, page 67.
[94] Transcript of proceedings, pages 58-60.
Re self-care and independent living: (a)
she has had to attend me where she hasn’t actually had a bra on or her hair has been unkempt because there’s been nobody around to help her prepare to come for the session. So, I mean, I would say that that - that is adequately describes what we’re talking about there.
And from what you’ve just told the tribunal then, (a) would you opine that that fits within 20?---Yes.
MEMBER: Just before we move on, Ms Tunney, the self-care issues, are they related to the mental health conditions or physical conditions that Ms Michelsen has?---Now, that’s a difficult one, I think it’s both. I think - I think it is by far the physical.
Thank you?---But if one remembers there are plenty of research - researching that shows that when there’s depression, then there is a higher amount of pain.
Yes?---So, it - they both are interrelated there.
Okay, thank you?---One doesn’t stand without the other
Re social and recreational activities and travel (b)
told me that she doesn’t like being around people. At that time she didn’t, she had nothing useful and positive to say to people and she felt awkward at that time and I attribute that to the depression she was feeling and - and the anxiety.
And what rating would you give that?---I would also put that in as a 20 under a fairly standard one. I can’t see that changing much, that it’s almost become part of her personality now
Re interpersonal relationships: (c)
I would still say it’s more 20 than 10
Re concentration and task completion (d):
Definitely 20.
what, in your file notes, were you relying on when you said, no, back then, in April to July 2016, it was 20 points?---Her reporting that she had no - she couldn’t concentrate and sometimes she couldn’t remember what - she would go and 5 get something or she (indistinct) that sort of thing. So, it was her self-report.
Just her self-report. Okay?---And yes, I could probably say that in her reporting to me in a logical step-by-step process, was not as fluid as it would normally be for somebody who has got full concentration skills at that time. It was a bit scattered at times, I had to redirect.
Re behaviour, planning and decision making (e):
20, I’d still say 20.
Re work/training capacity (f):
I still think it would be incredibly hard for her to - to go through formal training for something but also that also comes into what would she be trained for, that the concentration to be able to achieve the outcome of the course would be a difficulty I think.
looking back at that table again, you would agree from your evidence that you would rate the majority of those issues, or difficulties, as a 20, being a severe functional impact?---Yes.
Ms Tunney told the Tribunal she was not proficient or trained in conducting assessments in accordance with the Tables.
Given the evidence above, the Tribunal finds that an appropriate Impairment Rating would fall somewhere between 10 and 20 points. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[95]
[95] Determination, see s 11(1).
Therefore, the Tribunal finds that Ms Michelson’s Mental Health Impairment attracts a 10-point Impairment Rating.
DID MS MICHELSEN HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I) OF THE ACT?
As Ms Michelsen’s permanent impairments only attracted a 15-point Impairment Rating, it is unnecessary for me to consider whether Ms Michelsen had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
CONCLUSION

Ms Michelsen did not satisfy the Section 94 Requirements during the Qualification Period and therefore did not qualify for DSP at the date of her claim. If her conditions have deteriorated and/or become permanent, Ms Michelson can make a new DSP application.
DECISION
The decision under review is set aside and replaced with a decision that Ms Michelson did not qualify for the DSP during the Qualification Period.

I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..............................[SGD].................................
Associate
Dated: 26 February 2020

Dates of hearing: 11 November 2019 and 20 December 2020

Advocate for the Applicant: Ms Jasmine Forsyth

Solicitors for the Applicant: Mills Oakley Lawyers

Advocate for the Respondent: Mr McNab, of Counsel

Solicitors for the Respondent: Cooper Maloy Legal

[2020] AATA 324

26 February 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Appeal

Dates of hearing:	11 November 2019 and 20 December 2020
Advocate for the Applicant:	Ms Jasmine Forsyth
Solicitors for the Applicant:	Mills Oakley Lawyers
Advocate for the Respondent:	Mr McNab, of Counsel
Solicitors for the Respondent:	Cooper Maloy Legal