Norman and Secretary, Department of Social Services (Social services second review)
[2023] AATA 2196
•25 July 2023
Norman and Secretary, Department of Social Services (Social services second review) [2023] AATA 2196 (25 July 2023)
Division:GENERAL DIVISION
File Number:2022/7387
Re:Briley Norman
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:25 July 2023
Place:Brisbane
The decision under review is affirmed.
................................[SGD].................................
Member D Mitchell
Catchwords
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
25 July 2023
INTRODUCTION
On 14 December 2021, Ms Briley Norman (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1] The Applicant’s claim for the DSP considered epilepsy and mental health conditions.
[1] Exhibit 1, T Documents, T33, page 132, ARO Decision.
On 21 December 2021,[2] the Applicant’s claim was rejected on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables.
[2] Exhibit 1, T Documents, T25, pages 109-110, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision.[3] On 25 March 2022, an Authorised Review Officer (ARO) affirmed the decision.[4]
[3] Exhibit 1, T Documents, T30, pages 117-118, Centrelink letter: Your application for a formal review of decision.
[4] Exhibit 1, T Documents, T33, pages 132-136, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD).[5]
[5] Exhibit 1, T Documents, T36, pages 154-155, Request for Statement from the SSCSD.
On 2 August 2022, the SSCSD affirmed the decision to refuse the Applicant’s claim for the DSP.[6]
[6] Exhibit 1, T Documents, T2, pages 6-27, Decision of the SSCSD.
On 6 September 2022, the Applicant made an application for a second-tier review of this matter by the General Division of this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.
On 17 October 2022, the Applicant provided a letter from Dr Rebecca Horne, psychiatrist dated 29 September 2022.[8]
[8] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, Attachment A.
The Tribunal has also been provided with a copy of the Applicant’s Medicare Patient History Report, PBS Patient Summary, subsequent claims for DSP and supporting medical evidence.[9] This evidence was not before the earlier decision makers in this matter.
[9]On 19 July 2023, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was represented by her mother, Mrs Norman. Both the Applicant and Mrs Norman gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for the DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant’s application.Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of the DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[10]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[11] and
3.does the Applicant have a continuing inability to work?[12]
[10] Section 94(1)(a) of the Act.
[11] Section 94(1)(b) of the Act.
[12] Section 94(1)(c)(i) of the Act.
Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[13]
[13] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of the DSP. To be considered permanent for the DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[14] As such, a condition could be considered permanent from the perspective of it being life-long but would not meet the definition under the DSP requirements.
[14] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[15]
[15] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[16]
(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.
[16] Section 6(6) of the Determination.
Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[17]
[17] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[18] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[19]
[18] Section 6(2) of the Determination.
[19] Section 8(1) of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[20]
[20] Section 94(3B) of the Act.
The Administration Act sets out that qualification for the DSP and therefore, assessment of the relevant impairment ratings is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case, the start date for the DSP is the date the person becomes qualified.[21]
[21] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
The Federal Court and the Tribunal have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for the DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered; however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[22]
[22] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922,[34]; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [34]-[35]; ; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commenced on 14 December 2021, the date the Applicant lodged her claim for DSP and ended 13 weeks later on 15 March 2022. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore, has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[23] The Respondent considers the Applicant’s impairments, for the purposes of the claim for the DSP in question, consist of epilepsy[24] and mental health conditions.[25]
[23] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, page 6, paragraph 38.
[24] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 7-8, paragraphs 42-44.
[25] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 8-12, paragraphs 45-59.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period, the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and, if so
2.did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
Seizure condition
The Respondent contended that the Applicant’s seizure condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period.[26] The Respondent provided the following summary of the medical evidence before the Tribunal[27] upon which it bases that contention:[28]
[26] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, page 7, paragraph 42.
[27] Having reviewed the entirety evidence before it, the Tribunal considers the summary provided by the Respondent includes the pertinent medical evidence reflecting the documentation of the Applicant’s seizure condition.
[28] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 7-8, paragraph 43.
(a)On 25 June 2021 (T12), an MRI of the head returned normal results.
(b)On 4 July 2021 (T13), the Applicant presented to the Hervey Bay Hospital Emergency Department following a tonic clonic seizure. The report noted that the Applicant was currently being investigated for seizures with no diagnosis yet. It noted that she had experienced two previous seizures, with the latest one in June 2021.
(c)A GP medical certificate dated 14 July 2021 (T14) contained a diagnosis of “Grand mal epileptic fits” and noted that the Applicant was awaiting neurological review.
(d)On 28 July 2021 (T15), the Applicant presented to the Hervey Bay Hospital Emergency Department following a tonic clonic seizure.
(e)On 6 August 2021 (ST5), the Applicant’s treating general practitioner (GP), Dr Gareth Davies, reported that the Applicant was currently seeking input from a neurologist and a cardiologist for her seizures. He was concerned that the Applicant’s heavy reliance on her medications was reducing her seizure thresholds and recommended she be weaned off these medications with the support of a psychiatrist and regular counselling.
(f)On 1 September 2021 (T18), the Applicant was first reviewed by Dr Alessandro Fois (Neurologist). Dr Fois reported that the Applicant had experienced her first seizure on 17 June 2021, and subsequently on 4 July 2021 and 27 July 2021. He referred the Applicant for an EEG and commenced her on Lamotrigine. He stated, “I think we should treat her empirically while awaiting further investigation.”
(g)On 24 November 2021 (T23), Dr Fois reviewed the Applicant again and reported his impression of “probable epilepsy”. Dr Fois noted that Dr Davies had increased her dosage of Lamotrigine following another seizure on 18 November 2021.
(h)On 7 January 2022 (T26), Dr Davies provided a medical certificate with a diagnosis of epilepsy. He stated that the Applicant’s antiepileptic agents were currently being titrated, with the medication to be continued indefinitely. Dr Davies also wrote a letter to Centrelink stating, “Briley has been diagnosed by a neurologist as having epilepsy – this is NOT a temporary condition, people don’t recover from epilepsy, it is a life long problem” (T27).
(i)On 4 July 2022 (T2/18, 27), Dr Davies reported that the Applicant was currently being worked up for epilepsy by a neurologist with at least once weekly seizures. He went on to state that the Applicant could not work 15 hours a week “until diagnosis confirmed and treatment maximised by a neurologist”.
(j)The Applicant underwent an extended EEG over 8 days from 17 to 24 August 2022, which returned normal results (ST7).
(k)On 14 September 2022 (ST7), the Applicant was reviewed by Dr Fois who stated: “The normal extended EEG I think makes epilepsy unlikely. It is possible to have epilepsy and non-epileptic attacks, but her regular attacks at present are not epileptic given the normal extended EEG. I do not think we need to increase or switch her anti-epileptic therapy and if anything we could try weaning her lamotrigine. … She is on a number of medications and it may be that drug side effects are contributing significantly to her symptomatology.” Dr Fois recommended that the Applicant’s Lamotrigine be weaned until it was ceased.
(l)On 29 September 2022 (Attachment A), Dr Rebecca Horne (Psychiatrist) reported that the Applicant had been recently reviewed by her neurologist who concluded she is experiencing non epileptic seizures based on their assessment and investigations. Dr Horne stated that recommendations had been made to withdraw Lamotrigine.
At the Hearing, the Applicant told the Tribunal that:
·Her seizures impacted everything, it took over so much and took so much away from her.
·She is no longer able to continue to try and get her drivers licence, she is unable to ride a bike, go shopping or swimming on her own.
·She gets very tired and drained and has to lay down.
·Her seizures and absences stopped in September 2022.
·The doctors figured out in August 2022 that she does not have epilepsy, that it was her mental health and PTSD that was causing them; they were non-epileptic seizures. They found this out after she had a device wired up to her to see if she was having seizures.
·She had been taking anti-epileptic medication but was taken off it when her diagnosis was that she did not have epilepsy. She came off the medication around September 2022.
At the Hearing, Mrs Norman told the Tribunal that:
·The Applicant’s seizures are linked to her mental health conditions.
·The Applicant’s seizures in 2021 were full on. Before being referred to a neurologist they were tonic clonic seizures and believed to be epilepsy.
·The complexity of the condition means that 13 weeks is not enough time to get stabilised.
·After being rewired and told that her seizures were non-epileptic seizures, the Applicant had used up her sessions with Dr Horne and was referred back to the care of her general practitioner.
·She believes that in the Relevant Period the Applicant had undergone reasonable treatment for her seizures and was close to being stabilised as they knew what was happening, she was then experiencing absent seizures that may have been caused by her medication.
·She rejects the Relevant Period, as she believes that 13 weeks is not long enough, they had continuously submitted things.
·Seizures are seizures regardless of whether they were epileptic or not and she says that during the Relevant Period the Applicant had received reasonable treatment for her seizures.
The evidence before the Tribunal clearly shows that prior to the Relevant Period the Applicant had experienced a number of seizures and was undergoing investigations into their cause. During the Relevant Period Dr Alessandro Fois, neurologist, reported that he had the impression of possible epilepsy as the cause of the Applicant’s seizures and commenced her on medication. Dr Fois decided to treat the Applicant’s seizures empirically while they awaited further investigation.
On 7 January 2022, Dr Davies provided a letter to Centrelink stating that the Applicant had been diagnosed as having epilepsy of which was not temporary because people do not recover from epilepsy.[29] Then on 4 July 2022, Dr Davies reported that the Applicant could not work 15 hours a week until the diagnosis of her epilepsy episodes have been confirmed and treatment maximised by a neurologist.[30]
[29] Exhibit 1, T Documents, T26, page 111, Medical certificate of Dr Davies.
[30] Exhibit 1, T Documents, T2, page 27, Attachment to SSCSD Decision.
On 14 September 2022, Dr Fois reported that the Applicant’s seizures were unlikely to be epilepsy.[31]
[31] Exhibit 3, Supplementary T Documents, ST7, pages 6-7, Report of Dr Fois.
Based on this evidence, which was confirmed at the Hearing by the Applicant, it is clear that her seizure condition was not fully diagnosed until well after the Relevant Period and was still being treated throughout and after the Relevant Period. Further, the Applicant’s evidence was that her seizures were related to her mental health conditions and ceased occurring around September 2022.
The Tribunal understands Mrs Norman’s argument that a 13 week window of time is not long enough for a condition of this type to be fully treated and stabilised. However, the fact of the matter is that the eligibility requirements for DSP require that in order for a condition to be considered permanent and assigned an impairment rating it must have been fully diagnosed, fully treated and fully stabilised at the date of claim or within 13 weeks thereafter. As such, the condition needs to be as good as it is going to be within that window of time and likely to prevent the person from undertaking work or study for 15 hours or more a week within two years of their claim.
Consequently, based on the evidence before it, the Tribunal cannot be satisfied that the Applicant’s seizure condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Mental Health Conditions
The Tribunal accepts the Applicant’s evidence of which is corroborated by medical evidence and is not disputed by the Respondent that she has long term mental health conditions which result in functional impairment. The Tribunal is however required to consider whether or not the Applicant’s mental health conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period and if so whether they can be assigned an impairment rating under Table 5 of the Impairment Tables.
The introduction of Table 5 of the Impairment Tables requires that in order for a mental health condition to be considered fully diagnosed it must be diagnosed by a clinical psychologist or psychiatrist.
The Respondent contends that the Applicant’s mental health conditions, being anxiety and acrophobia were fully diagnosed during the Relevant Period based on the report of
Dr Horne. Although the Applicant saw Dr Horne after the Relevant Period, the Respondent contended that it provided confirmation of the previous diagnoses made by Dr Davies.[32]
[32] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 8-9, paragraphs 45-48.
The Tribunal accepts the Respondent’s contention in that regard and finds that the Applicant’s anxiety and acrophobia were fully diagnosed during the Relevant Period.
At the Hearing, the Applicant told the Tribunal that:
·She believes her mental health conditions were fully treated and fully stabilised during the Relevant Period because she had been seeing a psychologist, was in regular contact with her general practitioner and was taking a lot of medication that helped.
·She thinks she saw Ms Downes, a psychologist, for around 10 sessions in 2020.
·She saw Dr Horne in late 2022 and had previously seen Dr Forde, psychiatrist but she was too expensive.
·Her medication had been changed throughout the Relevant Period. She weaned off a lot of it.
·Said she was referred to Dr Horne who she saw for her allotted appointments and was then referred back to the care of Dr Davies.
·Dr Davies has not indicated he is going to refer her back for counselling.
·She has completed courses in Information Technology and Digital Media and a Certificate 3 in Business.
·She had started a Certificate 3 in hospitality in 2020 however she could not attend the classes because of her mental health.
·Her last work trial was in December 2020 and her first seizure happened on that day, she came home with a black eye and broken ribs.
·She does not have any plans at this stage for future study because she cannot concentrate very well.
·She still lives at home with her parents because she cannot live independently.
·She has had mental health problems since she was 17 and it has impacted all areas of her life, people do not understand what she goes through.
Mrs Norman told the Tribunal that:
·The Applicant has been suffering from mental illness and been on medication since she was a teenager.
·The Applicant is not able to do the things she wants to or what people might expect her to be able to do because of her mental health.
·The Applicant is a lot better now since the seizures stopped but she is too scared to do things because her mental health fluctuates and her seizures were caused by her mental health.
·The cost of seeing a psychiatrist or psychologist are out of the Applicant’s reach.
·The Applicant would have loved to continue with her study but because of her mental health she could not.
The Respondent provided a summary of the medical evidence before the Tribunal[33] in relation to the Applicant’s mental health conditions in support of its contentions that the conditions were not fully treated and fully stabilised during the Relevant Period. The Respondent provided the following:[34]
[33] Having reviewed the entirety of evidence before it, the Tribunal considers the summary provided by the Respondent includes the pertinent medical evidence reflecting the documentation of the Applicant’s mental health conditions.
[34] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 9-11, paragraphs 48-54.
48.The Secretary accepts that the Applicant’s mental health conditions are long standing and the evidence from the Applicant’s GP, Dr Davies, confirms that the Applicant was suffering from severe chronic anxiety with agrophobia during the qualification period (T26).
49.Although the Secretary accepts that the Applicant’s mental health conditions were fully diagnosed during the qualification period, the Secretary contends that they were not fully treated and fully stabilised.
50.The Secretary acknowledges that the Applicant had received some treatment for her mental health conditions by the end of the qualification period. In particular, the Applicant was prescribed a number of medications by her GP and had engaged with psychologists.
51.However, the Secretary contends that the Applicant’s mental health conditions cannot be regarded as fully treated and fully stabilised during the qualification period in circumstances where:
(a) the Applicant did not engage in treatment with a psychiatrist until after the end of the qualification period;
(b) the Applicant reported to the ARO on 1 March 2022 that she had last seen a psychologist at the end of 2021, and despite her GP recommending regular counselling, she did not engage with a psychologist again until after the end of the qualification period (T33/136);
(c) changes were made to the Applicant’s medication regime after the end of the qualification period; and
(d) during the qualification period, further reasonable treatment (engagement with a psychiatrist, psychologist and adjustments to her medication) could be expected to result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years.
52.The Secretary relies on the following evidence:
(a) A GP medical certificate dated 14 July 2016 (T4) contained a diagnosis of agoraphobia (onset 2010), with treatment identified as the medications Lexapro and Mirtazapine.
(b) A GP verification of medical conditions form dated 8 October 2018 (T6) contained a diagnosis of depression (onset 22 December 2014). Treatment was identified as Lexapro and Mirtazapine. Psychologist referral was recommended.
(c) On 24 October 2018 (T7), the Applicant reported to an Employment Services Assessor that she had suffered from agoraphobia from about the age of 14 years and had seen a number of psychologists in the past including a psychologist through high school, however this had not helped her. She reported that her GP had increased her dosage of Lexapro and Mirtazapine.
(d) On 26 March 2019 (T35), the Applicant’s treating GP in Victoria, Dr Ronald Gwynn, completed a GP Mental Health Care Plan for “gross anxiety symptoms, generalised panic disorder and agoraphobia”. The Applicant’s current medications were listed as Endep, Seroquel and Valium. Dr Gwynn also referred the Applicant to Steven Watts, Clinical Psychologist. The referral noted a long history of depression and previous engagement with psychologists with little benefit.
(e) On 28 February 2020 (T9), Dr Jayakody Indika (GP) reported that the Applicant was having ongoing mental health issues for which she was taking regular medication.
(f) On 6 August 2020 (T11), the Applicant reported to an Employment Services Assessor that her current treatment is medications, she has not seen a psychiatrist in the past and she had discussed with her GP her previous experience seeing psychologists. She reported that, with the support of her GP, she was looking at completing a mental health plan and a referral to see a psychiatrist.
(g) A GP medical certificate dated 14 July 2021 (T14) contained a diagnosis of anxiety/depression, with treatment identified as anti-anxiety medications.
(h) On 6 August 2021 (ST5), the Applicant’s treating GP in Hervey Bay, Dr Davies, referred the Applicant to Specialist Mind Care. In the referral, Dr Davies stated that the Applicant has had severe anxiety/depression since the age of 15 and has not had consistent psychology or psychiatric support for many years. He observed that the Applicant had “somehow ended up on huge doses of Endep, desvenlafaxine [Pristiq] and quetiapine [Seroquel]”. Dr Davies was concerned that the Applicant’s heavy reliance on her medications was reducing her seizure threshold and stated the she needed to be weaned off these medications with the support of a psychiatrist and regular counselling.
(i) On 1 September 2021 (T18), Dr Fois reported that the Applicant had a history of significant anxiety/depression, with her current medications including Amitriptyline, Pristiq, Seroquel and Serepax. Dr Fois considered that the Applicant’s psychotropic medications should be rationalised, noting that she had been on a number of medications at high doses.
(j) On 15 October 2021 (T20), 7 January 2022 (T26) and 22 April 2022 (T34), Dr Davies provided medical certificates with a diagnosis of “severe chronic anxiety with agoraphobia” with a date of onset of 1 June 2003. Treatment was noted as “medication, referred to local psychiatrist, referred for counselling”.
(k) On 27 October 2021 (T2/22), Specialist Mind Care wrote to Dr Davies stating that a referral had been received for the Applicant to engage with Psychiatrist Dr Elnike Brand, however Dr Brand was not seeing patients in 2022. Dr Davies subsequently requested that the Applicant see another Psychiatrist at the same practice, Dr Jenny Ford.
(l) On 1 March 2022 (T33/136), the Applicant advised the ARO that she had seen five psychologists over the years which did not help. She last consulted a psychologist in early 2021 but did not attend many sessions. She has been taking medication for mental health since she was 19 years old. Her GP referred her to a psychiatrist and for counselling, but not appointments have been booked yet.
(m) On 22 March 2022 (T32), the Applicant reported to the JCA that she was currently taking medications (Endep, Pristiq, Seroquel and Serepax) and was awaiting an appointment with a psychologist.
(n) On 24 March 2022 (T32), the JCA recommended that the Applicant’s mental health condition could not be considered FDTS as there was no evidence of diagnosis and/or treatment by a psychiatrist or clinical psychologist and further treatment (including modifications) may result in symptom reduction and functional improvement.
(o) On 4 July 2022 (T2/18), Dr Davies reported that the Applicant had ‘severe anxiety disorder (chronic)” and was seeing a psychologist.
(p) On 10 August 2022 (ST6), Dr Davies referred the Applicant to Community Mental Health, noting that the Applicant had been trying to get mental health assistance for at least a year. He stated that the Applicant had started to see Specialist Mind Care but could not afford to continue with this. He also stated that the Applicant was trying her best to reduce her long-term anxiety medications but was struggling with this.
(q) On 29 September 2022 (Attachment A), the Applicant was reviewed at The Village Community Mental Health Base, by Dr Rebecca Horne (Psychiatrist). Dr Horne provided a provisional diagnosis of “complex PTSD, emotionally unstable personality traits, chronic anxiety and depression”. She recommended changes to the Applicant’s medication, namely increasing her dosage of Desvenlafaxine to 200mg daily and stopping Amitriptyline. She also recommended ACT Peer Support Worker engagement and Brief Intervention Therapy via ACT.
(r) On 14 October 2022 (ST11 and ST12), the Wide Bay Hospital and Health Service (WBHHS) Acute Care Team closed the Applicant’s case.
(s) On 4 January 2023 (ST16), Dr Davies completed a medical certificate stating that the Applicant was currently seeing a psychiatrist through WBHHS and peer support and arranging to see a psychologist.
(t) The Applicant’s Medicare records contain only three appointments during the qualification period, all with the Applicant’s GP (ST2).
(u) The Applicant’s PBS records show that the Applicant was taking Amitriptyline, Diazepam and Desvenlafaxine during the qualification period (ST3).
53.The Secretary contends that engagement with a psychiatrist, psychological therapy and appropriate trials of medication is reasonable treatment as defined under s 6(7) of the Rules, consistent with the Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines.[35]
54.Case law has established that treatment following the qualification period or scheduled outside the qualification period is not fully treated or fully stabilised.
[35] See Clinical Practice Guidelines for Mood Disorders (accessible online at
The medical evidence before the Tribunal clearly shows that the Applicant was regularly seeing her general practitioner and taking medication for her mental health conditions during the Relevant Period. It also shows that in the few months before the Relevant Period that Dr Davies had referred the Applicant for psychiatric review, was concerned about her doses of medication and considered that she required regular counselling. During that period, Dr Fois also noted that changes to the Applicant’s medication was desirable.
Based on both the Applicant’s evidence and the medical evidence before the Tribunal, changes were being made to her medication well after the Relevant Period, including by
Dr Horne in September 2022. The evidence further indicates that the Applicant had not been able to seek the further treatment recommended by Dr Davies by the end of the Relevant Period. Further, Dr Davies continued to recommend further treatment of which the Applicant did not receive until late in 2022.
Consequently, based on the evidence before it, the Tribunal cannot be satisfied that the Applicant’s mental health conditions were fully treated and fully stabilised during the Relevant Period.
Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for the Applicant’s mental health conditions.
Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?
As the Tribunal has found that the Applicant did not have a total of 20 impairment points either on one Impairment Table or across multiple Impairment Tables during the Relevant Period, there is no need to consider whether she met the requirements of section 94(1)(c) of the Act.
CONCLUSION
Based on the evidence before it, the Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s:
(a)seizure condition was not fully diagnosed, fully treated and fully stabilised and, therefore, could not be considered permanent for the purposes of assigning a rating under the Impairment Tables; and
(b)mental health conditions were fully diagnosed however were not fully treated and fully stabilised and, therefore, could not be considered permanent for the purposes of assigning a rating under the Impairment Tables.
The Tribunal finds that, for the purposes of section 94(1)(b) of the Act, the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
................................[SGD]..................................
Associate
Dated: 25 July 2023
Date of hearing: 19 July 2023 Applicant: Mrs Liz Norman Solicitors for the Respondent: Mr Chris West
Services Australia
Exhibit 2, Supplementary T Documents, ST1-ST3, pages 1-25; Exhibit 3, Supplementary T Documents,
ST4-18, pages 1-46 and Exhibit 4, ST19-ST20, pages 1-8.
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