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

[2019] AATA 2315

Miller; Secretary, Department of Social Services and (Social services second review) [2019] AATA 2315 (31 July 2019)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )

)          No: 2017/4507

GENERAL DIVISION  )

Re: Secretary, Department of Social Services
Applicant

And: Wade Miller
Respondent

CORRIGENDUM

TRIBUNAL:  Damien Cremean, Senior Member

DATE OF CORRIGENDUM:            10 September 2019

PLACE:            Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application. The representative information on page 24 is amended as follows:

Counsel for the Respondent:	Ms Gemma Cafarella
Advocate for the  Respondent :	Ms Rehana Chowdhry
Solicitors for the  Respondent :	Victoria Legal Aid
Advocate for the Applicant:	Mr Tim Noonan
Solicitors for the Applicant:	Department of Human Services, Litigation and Information Release Branch

...........................[sgd]........................................
Senior Member

Division:GENERAL DIVISION

File Number:           2017/4507

Re:Secretary, Department of Social Services

APPLICANT

AndWade Miller

RESPONDENT

DECISION

Tribunal: Damien Cremean, Senior Member

Date:31 July 2019

Place:Melbourne

The decision under review is affirmed.

.............[sgd]...........................................................

Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – mental health conditions – whether fully diagnosed, treated and stabilised – whether impairment attracts rating of 20 points or more under the Impairment Tables – whether Respondent has a continuing inability to work – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

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
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2013] AATA 558

Fanning and Secretary, Department of Social Services, Re [2014] AATA 447

Secretary, Department of Social Services and Psorniadis, Re [2017] AATA 1428

REASONS FOR DECISION

Damien Cremean, Senior Member

31 July 2019

1. The Respondent (Mr Wade Miller) applied to Centrelink for a disability support pension (‘DSP’) under the Social Security Act1991 (Cth) (‘the Act’) on 17 August 2016. His application was rejected by the original decision-maker on 20 September 2016, because he was not qualified for payment of pension considering the terms of section 94 of the Act. Mr Miller sought an internal review of that decision. A Centrelink authorised review officer (ARO) made a decision on 10 February 2017 affirming the original decision. Mr Miller then sought review of the ARO decision by the Social Services & Child Support Division (Tier 1) of this Tribunal. Tier 1 of this Tribunal made a decision in favour of Mr Miller on 20 June 2017, setting aside the ARO decision and remitted the matter for reconsideration to Centrelink. Centrelink is the service provider for the Department of Social Services.

2. The Applicant (the Secretary, Department of Social Services) now seeks review of the Tier 1 decision made on 20 June 2017.

3. The Applicant argues that the Tier 1 decision should itself be set aside and that no pension is payable to the Respondent. This is opposed by the Respondent who argues, in effect, that the Tier 1 decision was correct and that the decision setting aside the original decision should be upheld.

4. The hearing in this matter took place over two separate days on 20 December 2018 and 25 March 2019. The Applicant was represented by Mr Tim Noonan, lawyer with the Department of Human Services. The Respondent was represented by Ms Gemma Cafarella of Counsel instructed by Ms Rehana Chowdhry, lawyer at Victoria Legal Aid. 

5. At the hearing, I heard sworn evidence given by the Respondent in person; affirmed evidence given by Dr Dielle Felman, consultant psychiatrist, by telephone; affirmed evidence given by Dr Louise Dawson, consultant psychiatrist, by telephone; sworn evidence given by Dr Anthony Cidoni, consultant psychiatrist, in person; and finally, sworn given by the Respondent’s mother, Mrs Diana Miller, in person. The Respondent absented himself from the hearing mid-way through the first day and did not attend the second day. As a result, he was never cross-examined.

6. After the hearing both parties lodged written submissions and I found those generally helpful.

   STATUTORY PROVISIONS

7. Section 94(1) of the Act governs disability support pension and provides:

   94  Qualification for disability support pension

   (1)  A person is qualified for disability support pension if:

   (a)  the person has a physical, intellectual or psychiatric impairment; and

   (b) the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)  one of the following applies:

   (i)  the person has a continuing inability to work;

   (ii)  the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…

8. The Impairment Tables mentioned in section 94(1)(b) refers to the Tables set out in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension) Determination 2011 (Cth) (‘Tables’).

9. Clause 6(3) of the Tables provides that, in applying the Tables, an impairment rating can only be assigned to an impairment if:

   (a)the person’s condition causing that impairment is permanent; and

   Note: For permanent see subsection 6(4).

   (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.

10. Clause 6(4) of the Tables provides that, for the purposes of clause 6(3)(a) of the Tables, a condition is permanent if:

    (a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    Note: For fully diagnosed and fully treated see subsection 6(5).

    (c)the condition has been fully stabilised; and

    Note: For stabilised see subsection 6(6).

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

11. For the purposes of clauses 6(4)(a) and (b) of the Tables, as regards determining whether a condition has been fully diagnosed and treated, clause 6(5) of the Tables states that the following factors  are to be considered:

    (a) whether there is corroborating evidence of the condition; and

    (b) what treatment or rehabilitation has occurred in relation to the condition; and

    (c) whether treatment is continuing or is planned in the next 2 years.

12. For the purposes of clause 6(4)(c) of the Tables, as regards determining whether a condition has fully stabilised, clause 6(6) of the Tables provides that a condition is fully stabilised if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    Note: For reasonable treatment see subsection 6(7).

13. Table 5 of the Tables, relating to mental health function, is the Table of relevance in this matter. Table 5 sets out the degrees of functional impact brought about by loss of mental health function. The relevant rating in this matter as I see it is the 20 point rating which deals with severe functional impact due to a mental health condition:

Points

Descriptors

20

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

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

(a)  self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)  social/recreational activities and travel;

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

(c)  interpersonal relationships;

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

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)  concentration and task completion;

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

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

(e)  behaviour, planning and decision-making;

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

(f)    work/training capacity.

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

CONTENTIONS OF THE PARTIES

1. There is no issue, as I see it, that the Respondent satisfies section 94(1)(a) of the Act in that he suffers from a physical, intellectual or psychiatric impairment, namely, a mental health condition. There is some evidence also that the Respondent suffers from asthma and gastrooesophageal reflux but these, I consider, were not pressed at the hearing, although the Applicant does mention them in the written submissions. Accordingly, I need say nothing further about them. It was clear to me, in any event, as the hearing proceeded, that the Respondent’s mental health condition was in reality the only real issue between the parties. The Applicant argues that the criteria set out in sections 94(1) (a), (b) and (c) are cumulative. My understanding is that, the Applicant does not take issue with whether the Respondent satisfies section 94(1)(a).[1] However, the Applicant’s SFIC and written submissions indicate that the Applicant questions the exact nature of the Respondent’s impairment and contends that on the evidence, the Respondent does not satisfy section 94(1)(b) of the Act, in that he does not qualify under the Tables for an impairment rating. That being so, the Applicant contends that section 94(1)(c) cannot be satisfied although, if I should find section 94(1)(b) is satisfied, there are grounds on which I could and should make a finding that section 94(1)(c) also is not satisfied. But, in summary, the Applicant contends that the original decision is the correct or preferable one to reach, and the decision of Tier 1 of this Tribunal is wrong.

   [1] See the Statement of Facts, Issues and Contentions (‘SFIC’) of the Applicant. 

2. The Respondent, on the other hand, contends he does satisfy section 94(1)(b) on the evidence, in that he meets the requirements of the Tables and has an impairment rating of 20 points or more under the Tables.[2] Further, he contends that he satisfies section 94(1)(c) of the Act in that he has a continuing inability to work. Therefore, section 94(1)(a) also being satisfied, the Respondent contends that he qualifies under the Act for DSP. Therefore, on the evidence, the correct or preferable decision is not the original decision but rather the one by Tier 1 of this Tribunal, which should be upheld.[3]

   ANALYSIS

   [2] See Respondent’s SFIC. 

   [3] See also the Respondent’s written closing submissions.

   Section 94(1)(a)

3. I have indicated my view that there can be no dispute that the Respondent satisfies section 94(1)(a) of the Act and I make that finding accordingly—namely, that he suffers from schizophrenia with an associated major depressive disorder, as I discuss further below.

   Section 94(1)(b)

4. The issue of real concern in this matter, as I see it, is whether the Respondent satisfies section 94(1)(b) of the Act, that is, whether it should be found that he has an impairment rating of 20 points or more under the Tables. In the first place, that requires deciding on the evidence the true nature of his condition and then, whether it is fully diagnosed, treated and stabilised. I consider I am unable to say whether a condition has been fully diagnosed, treated and stabilised unless I can identify what that condition is.

5. If it is fully diagnosed, treated and stabilised, it is then a matter of considering the appropriate points to be given to it under Table 5 of the Impairment Tables, should I be satisfied that the Tables apply. If I decide the Tables do apply and that the Respondent has an impairment rating, I then need to consider whether he satisfies section 94(1)(c) of the Act.

   Respondent’s condition

6. The period I am concerned with is commencing  at 17 August 2016 and for 13 weeks after that, as required by the Social Security (Administration) Act1999 (Cth). This is referred to as ‘the qualification period’.

   Evidence of Wade Miller

7. The Respondent, Wade Miller, gave sworn evidence which was exceedingly difficult to follow at times, mainly due to its rambling nature.

8. The Respondent is aged 35 years and lives at home with his mother, Mrs Diana Miller; although in evidence he said he was ‘homeless’ at the moment.  He acknowledged in his evidence that he has mental health issues.  He says he ‘fully admitted it to myself’ about eight years earlier that he started ‘to feel signs or recognise signs of depression’. He agreed he had suffered a ‘breakdown’ before his father had died of motor neuron disease (MND). He said he ‘kind of never progressed from that time [at or shortly before his father’s MND diagnosis] and became completely depressed with it’. His last full time job was in 2006 with Reece Plumbing; and he had ‘dropped out of university the year before that’ having finished schooling in 2001. He and his mother had both been homeless for a couple of years until she took up residence at her current address in Elwood.

9. The Respondent lost his job at Reece Plumbing mainly due to a lack of punctuality. He then worked some casual jobs, including as a courier and in traffic control and had several ‘troubled’ relationships (including one for six years). During the time he was unemployed – perhaps from the end of 2013 – drug use had had ‘its effect’ on him.  At one point it seems, he went back ‘on the street in St Kilda’. After a while, he went home to live with his mother again; but then his father died of MND in about 2014 and he and Mrs Miller ‘ended up homeless for a little bit after his death’.

10. At this time, the Respondent said he knew he ‘wasn’t well’ and that he was depressed ‘for sure’. When he was at home, he would be hearing voices in his head and he started talking out loudly to the point where his mother would say – ‘Wade, stop talking to yourself’. He was not hearing anyone else’s voice, only his own. He said in his oral evidence that he considered he was clairvoyant – ‘if that’s what you call schizophrenia, then, well, I’ve got it’. He also said – ‘But I’m not fit for work and I have no bloody energy and you all know why’.

11. The Respondent said he recalled going into hospital in January 2016 (he was an inpatient in a specialist unit for five days) where he was prescribed Quetiapine (also known as Seroquel) which is a tranquiliser. Dr Andrew, Psychiatric Registrar, on 29 July 2016 reported ‘a diagnosis of a psychotic episode, complicated by cannabis use…’  Later on, the Respondent was also prescribed Valium (although Dr Felman in evidence said the Valium belonged to Mrs Miller). He has been taking Quetiapine continually ‘on the whole’ since being in hospital, with the actual amount varying. He spoke of its effects at 200ml and described going for a walk to a 7-Eleven store to buy a coffee: ‘I got, I think, about 50 feet up the road and – so it knocks you out, the 200ml’. He spoke of its disorienting effect  and that it made him feel sleepy.

12. In the course of his evidence, amongst various other things, the Respondent made a point of saying ‘it would’ve been good if I had more time with Ms Dawson, I didn’t really…’ and that ‘One thing I spoke about earlier, it was Dr Cidoni who I really spoke about, you know.’

13. He said he was encouraged to apply for DSP by Ms Hanley, his social support or case manager. She filled out the forms for him. But he said ‘I’ve got to be honest with you… I would like to think before I reach bloody 40 that I wouldn’t need Disability Support Pension…’

    Evidence of Mrs Diana Miller

14. Mrs Miller gave evidence which supported the Respondent’s claim. She had worked at the Crown Casino. She detailed a very sorry history of nursing her husband (who had been a truck driver) until his death from MND; and of having to watch out for and look after her son at the same time.

15. Mrs Miller said she had not actually spoken to her son for the last five years even though they live together. She said as a boy he had been intelligent, well-behaved and sports-minded. This had changed after his father – her husband – had died. She formed the view her son, an only son, had a ‘thought disorder’ (including that he thought people were watching him) and was ‘ill’ and it was difficult for her to come to terms with this. Occasionally, after he came back to live with her, he would ‘explode’, throwing items around the house. She said of him at the present day that he has no interests – he does not watch television or read books or even go out much from his room.

16. Mrs Miller could not explain the Respondent’s absence from the hearing and had reported the matter to authorities. Although he was not cross-examined on his evidence, she was cross-examined on hers. But cross-examination did not lessen the effect of her evidence, which I accept in its entirety. It is obvious that life has been very difficult for her.

17. Nor did cross-examination of Mrs Miller detract from the evidence given by the Respondent, her son, who I have noted was not tested. Indeed, on many factual matters her evidence corroborated her son’s evidence relating to a long period of time which includes the qualification period.

18. It follows that I am satisfied and find that during the qualification period, the Respondent was suffering a serious mental health condition; leading to very troubled behaviour for which he was taking prescribed medication – together with illicit drugs at one point or another – and that that medication had disorienting or disabling effects. However, I am unable to make any definite findings about the quantities or precise types of illicit drugs the Respondent took or consumed. Although it seems marijuana and ice (crystal methamphetamine) were involved.  I am also unable to make any definite findings about when or where he consumed them; and thus as to whether his drug taking was an established habit or only casual behaviour. The evidence of the medical professionals in this case is no stronger than merely suggestive or speculative and does not help me. Nor does the evidence of the Respondent himself or his mother, except as to the latter on the question of whether her son had the financial capacity to purchase illicit drugs – and her view was that he did not.

19. In any event, the Respondent’s behaviour was such as to make it difficult for him to fit into a pattern of regular work or to maintain relationships. I am satisfied he became and still is withdrawn and uncommunicative and that he has developed no specialist technical or other skills which would advance him in finding employment. The strong impression I got from the evidence of the Respondent, supported by that of his mother, is that he spiralled downwards markedly after his father’s death.

    Medical evidence

1. There was considerable expert medical evidence (which I summarise below) lodged about the nature of the Respondent’s condition. Unfortunately, there was disagreement as to its true nature between Drs Felman and Dawson on one hand, and Dr Cidoni on the other.

2. The Applicant contends I should prefer the evidence of Drs Felman and Dawson as substantially contemporaneous with the qualification period. The Respondent contends I should place greater reliance on the evidence of Dr Cidoni.

   Dr Dielle Felman

3. The oral evidence of Dr Dielle Felman, a consultant psychiatrist, confirmed her report received on 9 October 2017 together with her supplementary report received on 27 November 2017. I note, in passing, both these reports were lodged a year or so after the qualification period.

4. Dr Felman’s opinion was that the Respondent, during the qualification, period suffered a psychotic illness not otherwise specified (that is, that he did not fit neatly into any one diagnostic psychotic category), with secondary depressive symptoms and a substance abuse disorder. A current working diagnosis she said was a drug induced psychosis and personality disorder. At the same time, I note that in her earlier report, Dr Felman confesses to ‘some diagnostic uncertainty’.

5. Dr Felman said the Respondent’s symptoms were not typical for schizophrenia but that a diagnosis of schizophrenia could not be ruled out. That last point is significant in light of
   Dr Cidoni’s evidence.

6. Dr Felman agreed she had been influenced in her views to a moderate extent by discussions she had had with Dr Dawson. She acknowledged it was difficult to assess the Respondent ‘in a once-off cross-sectional assessment’ which was done at a time after the qualification period was over. She was clear she said that the Respondent had ongoing ice and marijuana use – although as to the former the Respondent, if asked, could have a different view – and that there was ‘a clear link between his ice use and his disturbed mental state and aggression…’

7. Dr Felman was cross-examined on her evidence about suggested schizophrenia. She mentioned her clinical notes referred to the Respondent taking an anti-depressant (something he did not mention in his evidence to me) and that the Seroquel which he was taking is ‘an antipsychotic that is used for treatment of schizophrenia’ but she said it is ‘not always a first line treatment’.  Although this is so, her evidence was that if the Respondent truly had schizophrenia, she would expect his dosage of the drug to be much higher and he had not had any higher than 200ml. Moreover, although the Respondent had suffered auditory hallucinations, in a schizophrenic these normally would occur outside the person. Further, reportedly the Respondent’s moods fluctuated and were not consistent as you would expect in the case of schizophrenia. Indeed, those fluctuations ‘would highly raise a suspicion of ongoing drug use’.  Dr Felman’s evidence was that the Respondent’s mental state was too ‘fluctuant’ for her to think that schizophrenia ‘was high up on my diagnostic list’. 

8. I find, however, that this last expression of opinion by Dr Felman is in conflict with the view she stated in her supplementary report – that, in her opinion, ‘Dr Cidoni’s diagnosis of schizophrenia and associated major depressive disorder is reasonable on the basis of his understanding… and his findings…’

9. I note that in the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T documents), amongst various certificates and reports including notes, there is a letter from Dr George, Psychiatric Registrar, dated 12 September 2016, in which she too says that the Respondent’s diagnosis is that of ‘Psychosis – not otherwise specified’. Dr Felman expresses a similar view. In that letter, Dr George mentions that the Respondent was admitted to a psychiatry inpatient unit earlier in the year for ‘an acute psychotic episode’. But Dr George was not called to give evidence at the hearing.

   Dr Louise Dawson

10. Dr Louise Dawson, consultant psychiatrist, gave evidence based on her clinical notes but agreed she had only ever seen the Respondent on two occasions (12 and 19 May 2017) over  a week and that he was in a medicated state. But she was the treating practitioner. However, I refer to the Respondent’s own comments in this regard, set out above, on a point he himself raised. Dr Dawson agreed she had not seen him at all during the qualification period – but this is a problem in many cases in this area.  The Applicant made submissions about Dr Cidoni’s evidence in this respect  but it seems to me, as I say below, that  Dr Dawson’s evidence – as well as Dr Felman’s – are vulnerable in the same way.

11. Dr Dawson said that in forming her opinion of the Respondent she had ‘certainly looked at the previous psychiatrist’s entries’. That seems to be a likely reference to Dr Felman. But it could be a reference to another psychiatrist – perhaps Dr Jayarajah. So it seems that Dr Dawson relied on either Dr Felman’s notes or the notes of another psychiatrist; and that in turn Dr Felman was influenced to a moderate extent by her discussions with Dr Dawson.

12. Dr Dawson said that looking at the notes; it seemed to her that there were ‘no objective signs of psychosis’ during the qualification period. However, she said she could not say this ‘for 100 per cent certainty’. But her view nonetheless was that the Respondent was suffering ‘a drug induced psychosis’ – which she suspected was ‘ice induced’.

13. As regards schizophrenia, Dr Dawson referred to the notes and indicated that the previous psychiatrist had said that schizophrenia could not be ruled out during the qualification period. By the time Dr Dawson saw the Respondent in the following year, she said she did think ‘it was reasonable to rule it out’. His medication – which she said was given in ‘a very insignificant dose’ – supported this view.

14. Dr Dawson said she assumed that her other diagnosis of the Respondent suffering a personality disorder was longstanding. He had ‘significant interpersonal problems’. She also mentioned that she thought the Respondent’s parents gambled and that his father ‘used drugs’. I am unclear about how Dr Dawson became aware of these things herself.

15. Under cross-examination, Dr Dawson agreed that nowhere in her notes did she record a diagnosis of ‘personality disorder’. Despite her notes (of 12 May 2017) saying that the Respondent did not have a diagnosis of schizophrenia ‘as yet’, she said she did ‘not really’ consider he was suffering from that or a similar illness. However, at another point, she said ‘there is no exact science about when you can stop having drug–induced psychosis and start having schizophrenia’. She described it as ‘an imprecise moment when you cut off being cleared of psychosis not otherwise specified’.

16. Dr Dawson also answered that in the Respondent’s case schizophrenia could not be ruled out ‘completely’ but she added ‘I am thinking it is very, very, very unlikely that he has schizophrenia’. She then made some observations about the ineffectual nature of urine testing for drugs – which I regarded as quite confusing – and said she learned of his father’s drug habit from some notes which she could not recall much about. 

    Dr Anothony Cidoni

17. Dr Cidoni, consultant psychiatrist, gave evidence in person confirming his report of 8 June 2018. In his report he says he interviewed the Respondent for 70 minutes and also interviewed Mrs Miller for 10 minutes.  Mrs Miller was not interviewed by either Dr Felman or Dr Dawson.  I think this is significant.

18. In Dr Cidoni’s opinion the Respondent ‘suffers from schizophrenia with an associated major depressive disorder’ (his emphasis). He said the two conditions in effect ‘fed off’ one another. The Respondent’s illness had continued throughout the time under consideration which I took to include the qualification period.  He said the ‘previous diagnosis of drug induced psychosis is incorrect and not supported by the persistence of symptoms in the absence of significant ongoing substance abuse’. He said the Respondent ‘has some symptoms of anxiety and compulsive behaviour but insufficient to diagnose a separate anxiety disorder’. As regards the opinion of Dr Dawson of a personality disorder, Dr Cidoni says he did not find any evidence of this in the materials to support such a view. He noted a gambling disorder and amphetamine and cannabis use disorders.

19. Dr Cidoni was thoroughly cross-examined. He spoke of the Respondent’s schizophrenia as not being drug induced but as consisting of a ‘range of delusions’ indicating ‘severe underlying illness’. But illicit drugs, he proffered, would be ‘triggering off’ that underlying illness.

20. Dr Cidoni said in evidence that the Respondent’s condition ‘appeared to have begun around 2013 and was first diagnosed in January 2016’. It was around 2013, of course, that the Respondent’s father died. As regards symptoms, Dr Cidoni said that the Respondent ‘experiences grandiose and bizarre delusions’. He said the Respondent ‘experiences very significant negative symptoms of schizophrenia including affective blunting and amotivation and associated depressed mood with suicidal ideation and all the associated features of major depression’. When he saw the Respondent he said the Respondent was ‘highly anxious’. The Respondent’s history did not indicate a personality disorder as such, however. He disagreed with the view that the Respondent was suffering a personality disorder saying his history did not ‘support’ this. In his view, the Respondent presented a ‘significant problematic condition’.

21. Dr Cidoni said he did not believe the Respondent’s substance abuse was such as to justify the diagnosis of drug psychosis. This was to be explained by reference to the severity and duration of the psychotic symptoms, which did not fluctuate. He indicated he was concerned that for three years or so, the Respondent had experienced ‘untreated symptoms’. I took this to mean that the Respondent should have been properly diagnosed with schizophrenia at the outset.

    Outcome

22. I accept the evidence of Dr Cidoni in preference to that of either
    Dr Felman or Dr Dawson for the reasons below. 

23. Accordingly, I find on the balance of probabilities that the Respondent suffers from schizophrenia with an associated major depressive disorder and has done so for some time since perhaps 2013 but including the qualification period. The possible commencement time is consistent with the Respondent’s evidence.

24. I reject the evidence of Dr Felman that the Respondent during that period suffered from a psychotic illness not otherwise specified. This is repeated by Dr George and by
    Dr Dawson to a degree. But I consider doubtful that this qualifies as a proper diagnostic conclusion in any event because it seems so open-ended and unspecific.  It seems to lack   delimitation or definition. I make no distinct finding about that however.

25. I reject also Dr Dawson’s evidence that the Respondent suffered from a drug-induced psychosis. However, it is clear on the evidence that from time to time, the Respondent has consumed illicit substances of one sort or another.

26. It was a considerable advantage to me having Dr Cidoni give evidence in person. Both seeing and hearing a witness, and observing a witness’s demeanour, is most helpful. Seeing and hearing him in person convinced me that he was experienced, knowledgeable, fully conversant with the facts, and consistent. It is hard to form views to such effect about a person giving evidence over the telephone.

27. I consider he was fully conversant with the facts, possibly because he had taken the time to speak not only with the Respondent for a lengthy period, but also with Mrs Miller.  I consider that as a result he was in a position to give me a fuller account, suitable for findings to be made by me. I consider also that this was or may have been a point made by the Respondent himself in evidence – ‘it was really Dr Cidoni I spoke about, you know…’

28. Further, I am left in doubt about how far I am able to view the evidence of Dr Felman and Dr Dawson as exercises truly independent of one another. I have already commented on this. Dr Dawson gave evidence she looked at the previous psychiatrist’s notes and
    Dr Felman agreed she was influenced to a moderate extent by her discussions with
    Dr Dawson. This seems to be unfortunate, in terms of independence, in the giving of expert evidence. No less unfortunate, if correct, is that Dr Felman is (as the Respondent’s SFIC alleges) in truth, an employee of Centrelink.

29. Moreover at one point Dr Felman was certain she could not rule out the Respondent suffering schizophrenia, but then went on to give evidence that detracted from this position referring to matters such as medication quantities. I did not regard this as a consistent position. But she did agree that Seroquel is a treatment used in schizophrenia cases. Later on, she agreed that Dr Cidoni’s position was a reasonable one on the basis of his findings and understandings. In the end I found Dr Felman’s evidence quite confusing and consequently I could not place great reliance upon it.

30. I have the much the same view of Dr Dawson’s evidence. At one point she noted she could not rule out schizophrenia. Then she said that later on it was reasonable to rule it out in the Respondent’s case. After that, though, she said schizophrenia in his case could not be ruled out ‘completely’.  She then admitted there was no exact science in these things – about where drug induced psychosis (her view) stopped and schizophrenia started.

31. I do not however say that I reject Dr Dawson’s opinion entirely that schizophrenia in the Respondent’s case is ‘very, very, very’ unlikely (repeated in the Applicant’s submissions as only ‘very, very’). I am unable to say what professional expertise she has upon which to form such an emphatic view when at all other times it seems her evidence was at best tentative, or inconclusive.

32. I accept Dr Cidoni’s evidence. But I cannot say, having considered their evidence very carefully, that Drs Felman and Dawson ever actually in their evidence unreservedly reject schizophrenia as the correct diagnosis in the Respondent’s case.

    Fully diagnosed, treated and stabilised

33. I have identified the Respondent’s condition as that specified in the evidence of
    Dr Cidoni.  It is now a question of whether clause 4(a) of the Tables is satisfied in the Respondent’s case.

34. In that regard I note that, much earlier on, it was concluded in a job capacity assessment report (‘JCAR’) in May 2010 that the Respondent’s (then given) condition of depression was not fully diagnosed, treated and stabilised. However, that was over six years before his hospital admission in January 2016. Another JCAR on
    14 September 2016 reached the same conclusion. This was also Dr Felman’s view – that there was insufficient information to report that the Respondent’s condition was fully diagnosed, treated and stabilised.

35. I am satisfied that the Respondent’s condition as articulated in the evidence of Dr Cidoni meets the requirement that it is fully diagnosed, treated and stabilised.

    Fully diagnosed

36. The Applicant relies on the evidence of Dr Felman and submits that the Respondent’s condition was not fully diagnosed at or within the qualification period. Therefore, no impairment rating can be given under the Tables.

37. Because of the issue of substance abuse arising, the Applicant refers to Re Secretary, Department of Social Servicesand Psorniadis [2017] AATA 1428. I have read that decision but I do not accept that it stands for the wide proposition claimed. It is a decision only on the facts of the case.

38. Having regard to clause 6(5) of the Tables, I am satisfied I may rely on the evidence and expert opinion of Dr Cidoni to find that the Respondent’s mental health condition is fully diagnosed and was in evidence during the qualification period. He indicated his view to be that the Respondent’s condition did not ever resolve or really abate after the qualification period.

39. It is true that the condition was not diagnosed by Dr Cidoni at that time. This is a point argued by the Applicant; and reference is made to authorities including Re Fanning andSecretary, Department of Social Services [2014] AATA 447 (‘Fanning’). I cannot agree that this is a significant point. If it is, it also seems to work against the Applicant’s medical evidence, as I have mentioned above.  Nor can I agree that the Tribunal in Fanning, in laying down a rule that ‘evidence of treatment, and the efficacy of that treatment, after the [qualification] period is not directly relevant to the Tribunal’s decision’, was intending to apply such a rule in all cases. If it was intended to apply in all cases, it could work an injustice in one or some. The Tribunal in Fanning was only dealing with the facts before it, in any event.

40. I consider that Dr Cidoni’s opinion is directly relevant in this case and, I consider the Fanning ruling does not apply in this case. The rule there laid down is far too wide. In any event, I am not bound to follow Fanning.

41. I note also the clear statement of principle in Re Eid and Secretary, Department ofFamilies, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [88] that ‘[t]here is nothing inherent in the process of diagnosis or in diagnosis itself that suggests that a condition does not exist until it is diagnosed’.

42. This statement of principle I consider applies in this case.  The diagnosis of the Respondent’s schizophrenia by Dr Cidoni does not therefore lack value as a diagnosis in the present context, simply because the diagnosis was not made by him at the time of the qualification period

43. Based on Dr Cidoni’s opinion, I am satisfied that the Respondent’s condition is fully diagnosed now as schizophrenia with an associated major depressive disorder and that this diagnosis holds true throughout the qualification period, with the condition manifesting as early perhaps as around 2013. I rely upon his expertise. The evidence of both Dr Felman and Dr Dawson is unsatisfactory, as I have explained.

    Fully treated

44. The Applicant’s SFIC mentions, but does not deal directly with, the question of whether the fully treated condition is satisfied. However, the Applicant’s written submissions do deal with this issue.

45. Having regard again to clause 6(5) of the Tables, I am satisfied I may rely upon the evidence and expert opinion of Dr Cidoni to find that the Respondent’s mental health condition is fully treated. During the qualification period, the Respondent was prescribed Seroquel which as I have noted is an antipsychotic medication. He continues to take that medication – having taken it continually ‘on the whole’ since hospital in January 2016.

46. I note that Dr Felman agreed that Seroquel is ‘an antipsychotic used for treatment of schizophrenia’. In view of that, because I find the Respondent’s condition includes schizophrenia, I am also satisfied his condition has been fully treated. In a sense, this is fortuitous because, in light of Dr Cidoni’s opinion, I regard the Respondent as having been misdiagnosed early on.

47. Although Dr Felman agreed the Seroquel is used in the treatment of schizophrenia, her view was that it is ‘not always a first line treatment’. But I regard this as an observation of no consequence in the circumstances; and similarly so, her observation that she would have expected to see a higher dose administered if the Respondent was schizophrenic. Differences of opinion about exact dosages do not affect my view, and are or can be merely respectable differences of opinion between medical persons, and are not unexpected.

48. Nothing further in the way of treatment for the Respondent’s condition was mentioned in evidence by either Dr Felman or Dr Dawson – presumably because of their view of sorts that he was not suffering schizophrenia.

49. Therefore, I do not agree that it follows that the Respondent’s condition is not fully treated because of misdiagnosis in the first place, if I accept, as I do, Dr Cidoni’s opinion.

1. It is argued by the Applicant to follow, that the Respondent’s condition was not fully treated because he was not treated for it. I have, however, indicated my view though that the Respondent was given the correct treatment for his schizophrenia.

2. Dr Cidoni said that the Respondent’s present treatment is to continue. Significantly, he makes no mention of any increased dosages of Seroquel.  Indeed, and further, in his report he says ‘there are not any further treatments that are reasonably available that would be likely to lead to a significant improvement [in his condition]’.

   Fully stabilised

3. Having regard to clause 6(6) of the Tables, I regard the evidence of Dr Cidoni as entitling me to find, as I do, that the Respondent’s mental health condition is fully stabilised.

4. First off, he says that there are no further treatments reasonably available which could be expected to see his condition significantly improve.  I consider this significant. I take
   Dr Cidoni to be saying that nothing reasonably available as a treatment will see the Respondent significantly improve. It seems to me that that means the Respondent has reached a plateau.

5. Further, though, Dr Cidoni says that there has been no improvement in the Respondent’s condition since the time of his original claim. That includes therefore the qualification period. I regard that as firmly establishing that his condition is fully stabilised.

6. Dr Cidoni, however, does say also that ‘indeed, [the Respondent’s condition] was worsened [sic] and become more entrenched’. But this properly understood does not alter my view. 

7. I consider that I should regard Dr Cidoni as meaning that the Respondent’s schizophrenia has taken yet further hold. He is not saying that the condition has ceased or that another condition has taken over and replaced it. He is saying simply that over time his ongoing condition has become more attenuated or more established, as the case may be.

8. This is unsurprising because, in the case of many a mental health condition, I would think there would or could be fluctuations from time-to-time – perhaps even daily – but the condition itself remains the one condition. The fact that the condition has taken greater hold does not mean the condition itself has not fully stabilised. 

9. There is no basis for me in Dr Cidoni’s evidence to regard the Respondent’s condition as other than permanent.

   Impairment Tables

   Impediments

10. I have dealt with the requirements in clause 6 of the Tables and the permanency of the Respondent’s condition, above.

11. The Applicant’s SFIC mentions clause 8(1) of the Tables but I am unable to detect any argument otherwise that the Respondent’s condition is not corroborated. This is not a case of self-reporting.

12. I am unable to see any other impediment to me proceeding to assess the Respondent under the Tables.

13. I therefore reject the notion of the Applicant that an impairment rating cannot be assigned under the Tables.

    Table 5

14. I base my assessment of the Respondent under Table 5 on the evidence, especially of Mrs Miller and of Dr Cidoni.

15. I accept Dr Cidoni’s evidence, and in doing so I am satisfied that the Respondent qualifies for 20 or more points under Table.  It could plausibly be contended that the Respondent qualifies even for 30 points, if I go by the evidence of his mother.

16. The Applicant argues I should rely on Dr Felman’s evidence and find a 10 point rating is appropriate. I reject the Applicant’s argument.

17. I am satisfied (under Table 5) that the Respondent is suffering a severe functional impact on activities involving mental health function. That is, in considering the evidence, I find, as submitted in the Respondent’s SFIC, that he easily satisfies 20(1) (a), (b), (c), (d) and (e) of Table 5; meaning that he meets five out of six descriptors and thus attracts the 20 point rating.

18. I note also that Dr Felman herself was inclined to find a 20 point rating in the Respondent when writing her report. I do not agree, therefore, that I should make an assumption, as the Applicant invites me to do,[4] that the Respondent’s impairment falls between 10 and 20 points and therefore the lesser of those two is the appropriate rating.

    [4] Applicant’s SFIC, [61].

19. I have considered the issue, above, of Dr Cidoni having assessed the rating he gives the Respondent some time after the qualification period is over. But his opinion holds good during that period as I have said.

    Section 94(1)(c)

20. I make the finding that the Respondent has a severe impairment under Table 5.  Therefore, the question of whether he has or has not participated in a program of support does not arise.[5]

    [5] See section 94(2) of the Act.

21. I note that the Applicant’s submissions concede that should I find the Respondent’s mental health condition rates 20 points, then ‘the evidence of the Respondent’s mother and Dr Cidoni is sufficient to establish [that] the Respondent was unable to work for at least 15 hours per week by August 2018’. 

22. It is then argued, despite this, that I should prefer Dr Felman’s evidence and find that the Respondent did not have a continuing inability to work during the qualification period. However, I have already given my reasons for not preferring Dr Felman’s evidence over that of Dr Cidoni and I refer to that earlier discussion.

23. Independently of any concession of the Applicant, I am quite satisfied that the Respondent meets the requirement of a continuing inability to work under section 94(1)(c). In that regard I rely upon the evidence given by Dr Cidoni.

24. In his report Dr Cidoni says that in his opinion the Respondent ‘was not able to work for at least 15 hours per week for 2 years from the… qualification period’.  He repeated this in somewhat stronger terms in oral evidence and his evidence was convincing.

25. Accordingly, I am satisfied the Respondent satisfies the requirement in section 94(1)(c) of the Act.

26. For the reasons I have given above, I am satisfied the Respondent qualifies under section 94(1) of the Act and was so qualified during the qualification period.

27. Sections 94(1) (a), (b) and (c) are satisfied in the Respondent’s case.

28. It follows that I affirm the decision under review.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for decision herein of Damien Cremean, Senior Member.

..............[sgd].......................................

Associate

Dated: 31 July 2019

Dates of hearing:	20 December 2018 25 March 2019
Counsel for the Applicant:	Ms Gemma Cafarella
Advocate for the Applicant:	Ms Rehana Chowdry
Solicitors for the Applicant:	Victoria Legal Aid
Advocate for the Respondent:	Mr Tim Noonan
Solicitors for the Respondent:	Department of Human Services, Litigation and Information Release Branch

.