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

Noy and Secretary, Department of Social Services (Social services second review) [2018] AATA 1272 (4 May 2018)
Division:GENERAL DIVISION
File Number: 2017/4491
Re:Linda Noy
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:4 May 2018
Place:Brisbane

The Tribunal affirms the decision under review.
.............................[sgd].....................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairments permanent – whether impairments attracted 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)
Social Security (Active Participation for Disability Support Pension) Determination 2014
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
REASONS FOR DECISION
Member D K Grigg
4 May 2018
INTRODUCTION

On 12 September 2016 Ms Noy lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
·mental breakdown
·panic attack
·both knee(s)
·three-disc bulge
[1] Exhibit 1, T Documents, T21, pages 76 – 107, Ms Noy’s Claim for DSP dated 12 September 2016.
Ms Noy indicated in her claim form that she was expecting to have an operation on her knees and back in the future and claims her conditions cause her to have a short attention span and make it very hard for her to walk, sit and move around.[2]
[2] Exhibit 1, T Documents, T 21, page 104, Ms Noy’s Claim for DSP dated 12 September 2016.
On 20 September 2016 Dr Sivakumar Subramaniyam, General Practitioner, reported that Ms Noy:[3]
(a)has osteoarthritis in both knees;
(b)has major depression;
(c)has been referred to an orthopaedic clinic for assessment;
(d)is currently taking Lyrica and using a Duragesic patch (i.e. fentanyl);
(e)takes Pristiq for depression; and
(f)attends counselling with Dr Ian Pratt.
[3]Exhibit 1, T Documents, T 22, page 108, Report of Dr Subramaniyam dated 20 September 2016
On 28 October 2016, Dr Subramaniyam confirmed that Ms Noy:[4]
(a)has an appointment with an orthopaedic surgeon regarding her knees on 31 October 2016; and
(b)is having ongoing counselling of Dr Pratt and taking Pristiq.
[4]Exhibit 1, T Documents, T 23, Report of Dr Subramaniyam dated 28 October 2016
On 1 November 2016 Logan Hospital wrote to Ms Noy regarding the referral to the orthopaedic specialist service and confirmed that her appointment was scheduled for 11 November 2016.[5]
[5]Exhibit 1, T Documents, T 24, page 110, Letter from Logan Hospital to Ms Noy dated 1 November 2016.
On 4 November 2016 Logan Hospital advised Ms Noy that they had received a referral from her doctor requesting an outpatient appointment in the physio screen clinic and that she had been assessed as a category 3 patient.[6]
[6]Exhibit 1, T Documents, T 25, page 111, Letter from Logan Hospital to Ms Noy dated 4 November 2016; category three outpatients are described as “Non-urgent (Category 3) – specialist consultation recommended within 365 days of being added to the outpatient wait list” on the Queensland health website:
On 31 October 2016 Ms Noy had a right knee arthroscopy.[7] The orthopaedics clinic of Logan Hospital reported on 11 November 2016 that Ms Noy has “mild/moderate osteoarthritis in both her knees” and that she would be unable to work from 31 October 2016 to 12 December 2016.[8]
[7] Exhibit 1, T Documents, T 26, page 113, Surgeons report dated 31 October 2016.
[8] Exhibit 1, T Documents, T 26, page 112, Report of Orthopaedic clinic Logan Hospital dated 11 November 2016.
A Job Capacity Assessment (“JCA”) was conducted by a registered psychologist and a rehabilitation counsellor with Ms Noy via telephone. The JCA found that Ms Noy’s conditions were not fully treated and stabilised.[9] As a result of the JCA report, the Department of Human Services (“Centrelink”) rejected Ms Noy’s claim for DSP on the basis that she did not have permanent impairments with a total impairment rating of 20 points or more.[10]
[9] Exhibit 1, T Documents, T 27, pages 114 – 119, JCA report dated 16 November 2016.
[10] Exhibit 1, T Documents, T 28, pages 120 – 121, Rejection of claim for DSP dated 26 November 2016.
Claim History
Ms Noy sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
[11] Exhibit 1, T Documents, T 31, pages 125 – 130, Decision of ARO and notes dated 24 January 2017.
Ms Noy’s medical conditions were not permanent, as defined in the Social Security Act 1991 (Cth) (the “Act”), and did not attract an impairment rating of 20 points or more.[11]
Ms Noy lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 8 February 2017.[12] The SSCSD rejected
[12] Exhibit 1, T Documents, T32, pages 131 – 132, Request for Statement dated 8 February 2017.
[13] Exhibit 1, T Documents, T2, pages 3 – 11, SSCSD’s Decision and Reasons for Decision dated 14 June 2017.
Ms Noy’s claim and affirmed the ARO’s decision on 14 June 2017.[13]
Ms Noy has sought a review of the SSCSD’s decision by the General Division of theTribunal.[14]
[14] Exhibit 1, T Documents, T1, pages 1–2, Application for Review of Decision dated 31 July 2017.
ISSUES FOR DETERMINATION
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Ms Noy must have a physical, intellectual or psychiatric impairment;
(b)Ms Noy’s impairment/s 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 (“Determination”);[15]
(c)Ms Noy has a continuing inability to work.
[15] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Noy meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 21 March 2016), unless Ms Noy becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[16] Therefore, to qualify for DSP Ms Noy must have met the Section 94 Requirements between 4 August 2016 and 4 November 2016 (“Qualification Period”).
[16] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
It is important to keep in mind that medical evidence concerning the functional impact of Ms Noy’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[17]
DID MS NOY HAVE PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[17] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
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”.[18]
[18] Determination, s 3.
Ms Noy’s medical conditions
Lumber Spinal Condition
In June 2005 Ms Noy had an MRI of her lumbar spine which indicated disc desiccation and a disc bulge at L4/5 and L5/S1.[19]
[19] Exhibit 1, T Documents, T5, page 43, MRI report dated 6 June 2005.
Dr Simon Gatehouse, Spinal Surgeon, reported in October 2009 that Ms Noy had facet blocks performed at L4 – 5 and L5 – S1 which resulted in “fairly good temporary relief” and that Ms Noy was coping with her pain. Dr Gatehouse indicated his preference would be to hold off on any further intervention and for Ms Noy to continue with non-operative measures and therapies.[20]
[20] Exhibit 1, T Documents, T7, page 45, Report of Dr Gatehouse dated 14 October 2009.
In February 2017 Dr Paul Nothdurft, Chiropractor, reported that:[21]
(a)Ms Noy presented to his practice in April 2005 with very acute bilateral low back pain and shooting pains down her left posterior leg;
(b)Examination revealed painful and restricted lumbar motion on all movements, spinal tenderness at the L’4, L’5 and S’1 spinal levels, and muscular spasms throughout the lower back;
(c)initial treatment had included ice applications, muscle releases, lumbar spine flexion destruction, chiropractic spinal adjustments, corrective postural and exercise advice;
(d)Ms Noy had received good symptomatic relief and improved motion as a result of the chiropractic care management over the past 12 years; and
(e)due to her work as a cleaner with Queensland health, she experienced episodes of back and sciatica which affected her ability to work and resulted in her resigning in late 2016.
[21] Exhibit 1, T Documents, T 33, page 133, Report of Dr Nothdurft dated 21 February 2017.
In April 2017 Ms Noy had a CT and x-ray of her lumbar spine which indicated broad-based disc bulges at L2/3 and L3/4, moderate facet joint arthropathy causing mild to moderate spinal canal stenosis and severe facet joint arthropathy at L4/S1.[22] Dr Peter Zheng, Radiologist, reported that if Ms Noy’s pain was localised across the lower back, a CT-guided facet joint block would be recommended and if Ms Noy demonstrated multiple distribution dermatome symptoms, an epidural injection would be advised.[23]
[22] Exhibit 1, T Documents, T 36, pages 137 – 138, CT and extra Report of Dr Zheng dated 5 April 2017.
[23] Ibid.
In April 2017 Ms Noy was referred to the Princess Alexander Hospital Spinal Surgery Clinic for an opinion and management of her chronic lower back pain.[24]
[24] Exhibit 1, T Documents, T 37, pages 139 – 141, Medical Report by Dr Ali Chatroodi, Redbank Plaza Medical dated 6 April 2017.
In May 2017 a medical officer from the Mater Hospital certified that Ms Noy was suffering from chronic low back pain and had limited walking distance consistent with spinal stenosis. The medical certificate indicatedthat she was presently unfit for work and had been offered physiotherapy and a Spinal Surgeon review.[25]
[25] Exhibit 1, T Documents, T 38, page 142, Medical certificate: Mater Hospital dated 24 May 2017.
Ms Noy was referred for physiotherapy rehabilitation treatment assessment on 7 June 2017. The assessment revealed “significant neural limitation” and decreased mobility. The physiotherapist, Rebecca Lee, reported that she recommended that Ms Noy have one treatment a week for five weeks in order to improve her pain and quality of life.[26]
[26] Exhibit 1, T Documents, T 39, pages 143 – 144, Report of Ms Lee dated 7 June 2017.
In February 2018 Dr Ian Cheung, Spinal Orthopaedic Surgeon, reported that:[27]
(a)he saw Ms Noy on 1 February 2018;
(b)Ms Noy has “lumbar spondylosis, a permanent condition of a degenerative nature”;
(c)surgical intervention is unlikely to improve Ms Noy’s condition;
(d)“Ms Noy is likely to have persisting pain (and severe functional limitations) despite surgery”;
(e)the condition is fully treated and stable; and
(f)Ms Noy has maximised her treatment options.
[27] Exhibit 3, Report of Dr Cheung dated 1 February 2018.
Depression
In July 2014 Dr Ian Platt, Clinical Psychologist, reported that Ms Noy:[28]
(a)had presented for six sessions with depressed mood following her adjustment to the breakdown of her marriage;
(b)responded well to cognitive behavioural therapy (‘CBT’);
(c)completed a DASS–21 self-report which indicated that her depression and tension-stress are in the normal range in conjunction with mild anxiety symptoms; and
(d)given the ongoing nature of the stressors related to her husband’s decision to end the marriage, further sessions were recommended.
[28] Exhibit 1, T Documents, T 8, page 46, Letter from Dr Ian Platt, Clinical Psychologist, Lakeside Rooms dated 11 July 2014.
In December 2014 Dr Platt compiled a further report which detailed that Ms Noy had:[29]
(a)initially presented with severe symptoms of depressed mood and anxiety and met the criteria for a diagnosis of adjustment disorder with mixed anxiety and depressed mood;
(b)attended 12 sessions of therapy chiefly comprised of CBT; and
(c)indicated that her depression and anxiety had significantly improved prior to the report date.
[29] Exhibit 1, T Documents, T 9, page 47, Letter from Dr Ian Platt dated 1 December 2014.
In February 2015 Dr Platt recommended that Ms Noy obtain further counselling sessions.[30]
[30] Exhibit 1, T Documents, T 10, page 48, Report of Dr Platt dated 6 February 2015.
In April 2015 Dr Platt reported that Ms Noy had presented in a distressed state and he was concerned that she had increased her alcohol consumption and may need a medically managed alcohol withdrawal program.[31]
[31] Exhibit 1, T Documents, T 11, page 49, Report of Dr Platt dated 20 April 2015.
In June 2015 Dr Platt reported that Ms Noy had completed a further four sessions and had stopped using alcohol to self-medicate and continued to function well at work.[32]
[32] Exhibit 1, T Documents, T 12, page 50, Report of Dr Platt dated 9 June 2015.
In April 2016 Dr Subramaniyam reported that:[33]
(a)Ms Noy had ongoing major depression; and
(b)was taking Pristiq and having counselling with Dr Platt.
[33] Exhibit 1, T Documents, T 16, pages 56 – 57, Report of Dr Subramaniyam dated 7 April 2016.
In April 2016 Dr Platt reported that:[34]
(a)Ms Noy had made significant positive progress since her initial presentation in 2014;
(b)over the past few months she had been subject to a number of life stresses which had a negative impact on her mood and ability to function;
(c)osteoarthritis had made it impossible for her to fulfil her work duties which precipitated considerable financial stress and worry about the future, which escalated to panic at times;
(d)Ms Noy had been struggling to come to terms the loss of her mother in November last year; and
(e)Ms Noy was very much in need of continuing psychological support at this time.
[34] Exhibit 1, T Documents, T 17, page 58, Report of Dr Platt dated 20 April 2015.
On 16 June 2016 Ms Noy was assessed by Dr Eric De Leacy, Consultant Psychiatrist/Consultant Pathologist, for a psychiatric assessment requested by Ms Loy’s income insurer. Dr De Leacy reported that:[35]
(a)Ms Noy was on Duragesic patches and taking Efexor;
(b)had adjustment disorder with anxiety and depressed mood which was chronic and of moderate severity;
(c)Ms Noy’s mental health conditions were probably enough to stop her working for the foreseeable future unless it improved considerably which was not likely in the medium term;
(d)Ms Noy had problems with concentration and memory and was highly distracted;
(e)seeing a psychiatrist could assist but he was not overly optimistic it would make a significant difference given the complexity of Ms Noy’s problems;
(f)he had doubts whether further psychological care would make Ms Noy “work capable”.
[35] Exhibit 1, T Documents, T 19, pages 66 – 73, Report of Dr De Leacy dated 27 June 2016.
On 20 September 2016, Dr Subramaniyam reported that Ms Noy was still taking Pristiq for depression and attending counselling with Dr Ian Pratt (sic).[36]
[36] Exhibit 1, T Documents, T 22, page 108, Report of Dr Subramaniyam dated 20 September 2016
On 5 December 2016, Dr Subramaniyam reported that:[37]
(a)Ms Noy’s major depression was permanent and caused depressive symptoms, poor motivation, panic attacks and tiredness;
(b)Ms Noy continued to treat the condition with Pristiq and counselling with Dr Pratt.
[37] Exhibit 1, T Documents, T 29, pages 122 – 123, Medical certificate of Dr Subramaniyam dated 5 December 2016
In January 2017 Mr Nick Marcon, Psychologist, reported that:[38]
(a)he was currently treating Ms Noy and had seen her for three sessions;
(b)he agreed with the diagnosis and recommendations of Dr De Leacy and Dr Platt;
(c)in his opinion Ms Noy suffered from severe depression and anxiety and experienced panic attacks on a frequent basis;
(d)in his opinion, Ms Noy’s situation was unlikely to change over the next few years and her prognosis was poor due to the length of time she had already been suffering from mental health issues;
(e)to ensure Ms Noy did not deteriorate further it was beneficial for her to continue counselling; and
(f)should Ms Noy be made to look for work it would greatly affect her emotional state in a negative way, which could cause her further harm.
Upper limbs – shoulder
[38] Exhibit 1, T Documents, T 30, page 124, Report of Mr Mark on dated 18 January 2017.
In April 2017 Ms Noy had an ultrasound of her right shoulder which found features of right-sided subacromial bursitis which would be amenable to ultrasound-guided injection if conservative measures failed.[39]
Lower limbs – Knees
[39] Exhibit 1, T Documents, T 35, pages 135-136, Ultrasound report dated 5 April 2017.
In January 2016 Ms Noy had an x-ray of both knees which found early osteoarthritis in her left knee.[40]
[40] Exhibit 1, T Documents, T 13, page 51, X-ray report dated 7 January 2016.
In April 2016 Dr Subramaniyam reported that:[41]
(a)Ms Noy had pain in both knees and was not able to undertake a full-time job as a general service assistance as a result of her pain;
(b)was taking Brufen and having regular intra-particular steroid injections; and
(c)Ms Noy had been referred to an Orthopaedic clinic.
[41] Exhibit 1, T Documents, T 16, pages 56 – 57, Report of Dr Subramaniyam dated 7 April 2016.
On 31 October 2016, an orthopaedic surgeon performed a right knee arthroscopy and reported that Ms Noy would require review, and the next procedure was a total knee replacement.[42]
[42] Exhibit 1, T Documents, T26, page 113, Surgeon’s report dated 31 October 2016.
On 5 December 2016 Dr Sivakumar Subramaniyam, General Practitioner, reported that Ms Noy:[43]
(a)had pain in both knees and difficulty walking and that her prognosis was unclear;
(b)had had an arthroscopy on her right knee and repair of the meniscus in the right knee;
(c)continued physiotherapy was planned; and
(d)may need a knee joint replacement for her right knee.
Sleep Apnoea
[43] Exhibit 1, T Documents, T 29, pages 122 – 123, Medical certificate of Dr Subramaniyam dated five December 2016
In June 2017 Ms Noy was assessed by a respiratory and sleep physician who reported that Ms Noy’s suffers from moderate obstructive sleep apnoea and recommended a CPAP titration study.[44]
[44] Exhibit 4, Report from Snore Australia dated 22 June 2017.
Conclusion on Impairments
The Secretary accepts that Ms Noy suffers from a physical impairment for the purposes of section 94(1)(a) at the Qualification Period.[45]
[45] Exhibit 2, Secretary's Statement of Facts, Issues and Contentions dated 30 January 2018, at [20].

In light of the above medical evidence, the Tribunal finds that during the Qualification Period, Ms Noy suffered from a Lumbar Spine Impairment, a Knee Impairment and a Mental Health Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
In relation to the sleep apnoea and shoulder conditions, they were not diagnosed during the Qualification Period and had not been fully treated and therefore they cannot be considered the purposes of this DSP application. Further, there is insufficient evidence on how these conditions were impacting on Ms Noy’s ability to function.
DO MS NOY’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
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.[46] They are function based[47] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[48]
[46] Determination, s 4(2) and 5(2)(a).
[47] Determination, s 5(2)(b) and (c).
[48] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[49]
(a)Ms Noy’s condition causing that impairment is “permanent”; and
(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.
[49] Determination, see s 6(3).
Ms Noy’s conditions can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[50]
(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.
[50] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[51] the following must be considered:[52]
(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.
[51] For the purposes of ss 6(4)(a) and (b) of the Determination.
[52] Determination, see s 6(5).
A condition is fully stabilised[53] if:[54]
(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;[55] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[53] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[54] Determination, see s 6(6).
[55] For reasonable treatment see s 6(7) of the Determination.
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.
Before applying the Tables, Ms Noy’s medical history, in relation to the condition causing the Impairments, must be considered.[56]
[56] Determination, see s 6(2).
IS MS NOY’S LUMBAR SPINE IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence establishes that Ms Noy was diagnosed with disc bulges at L4/5 and L5/S1 prior to the Qualification Period. The question is whether the Spinal Impairment was fully treated and fully stabilised during the Qualification Period.
Dr Nothdurft, Chiropractor, reported in February 2017 that he had treated Ms Noy since 2005 and that her treatments had included ice applications, muscle releases, lumbar spine flexion destruction, chiropractic spinal adjustments, corrective postural and exercise advice.[57]
[57] Exhibit 1, T Documents, T 33, page 133, Report of Dr Nothdurft dated 21 February 2017.
Dr Gatehouse reported that her condition in 2009 did not warrant surgical intervention at that stage.
However, Ms Noy told the Tribunal her pain had increased, and her condition had deteriorated since the Qualification Period and resulted in her quitting her job in late 2016.
The Secretary submitted that Ms Noy had not been treated by a pain specialist and therefore her Spinal Impairment had not been fully treated. There is no suggestion in the evidence that is available that a pain specialist was recommended or would assist Ms Noy. The Tribunal is concerned about the lack of medical evidence regarding Ms Noy’s Spinal Impairment between 2009 and 2017. It makes it impossible for the Tribunal to form a conclusion as to whether the Impairment was fully treated and stabilised before or during the Qualification Period. Further, although there are medical reports provided from 2014 to 2016, the focus of these reports, including the doctor’s report for Ms Noy’s permanent disability benefit, only refer to Ms Noy’s mental health and knee condition.[58] If Ms Noy’s Spinal Impairment was so significant to her ability to function, why was it not mentioned by her treating practitioners?
[58] Exhibit 1, T Documents, T14 and T18, pages 52-54, 59-65, Permanent Disability Benefit Application – Doctor’s Statement completed by Dr Subramaniyam dated 3 March 2016 and Income Protection Benefit Claim – completed by Ms Noy dated 20 April 2016.
The Tribunal finds that, based on the limited evidence available, Ms Noy’s Spinal Impairment, cannot be considered permanent during the Qualification Period because there is simply no evidence between 2009 and 2017 (which is after the Qualification Period) of the status of Ms Noy’s condition, whether any treatment was required and what impact, if any, it was having on her ability to function.
Before the hearing, Ms Noy provided a report from Dr Cheung, a Spinal Orthopaedic Surgeon dated 2 February 2018. Dr Cheung reported that Ms Noy’s Spinal Impairment is now permanent and that she has maximised her treatment options. While Dr Cheung says he examined Ms Noy in 2013, he did not assess her again until February 2018, which is more than 12 months after the Qualification Period. There is no reference in the report to Ms Noy’s condition during the Qualification Period.[59]
[59] Exhibit 3, Report of Dr Cheung dated 1 February 2018.
In the circumstances, the Tribunal is unable to find that Ms Noy’s Spinal Impairment was fully treated and stabilised during the Qualification Period and therefore no Impairment Rating can be assigned.
Ms Noy told the Tribunal she lodged a subsequent DSP claim in November 2017. Dr Cheung’s report will no doubt be relevant to that subsequent application.
IS MS NOY’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist with evidence from a clinical psychologist, if the diagnosis has not been made by a psychiatrist). This element is satisfied because Ms Noy was diagnosed by a clinical psychologist with adjustment disorder with mixed anxiety and depressed mood prior to the Qualification Period. The Tribunal finds that Ms Noy’s Mental Health Impairment was fully diagnosed.
The evidence of Dr Platt and Dr Subramaniyam indicates that Ms Noy’s condition will require long-term therapy and is chronic. The Tribunal accepts that Ms Noy’s Mental Health Impairment was permanent for the purposes of the Act during the Qualification Period. Therefore, an Impairment Rating can be assigned.
The Secretary accepts that Ms Noy’s Mental Health Impairment was fully diagnosed, treated and stabilised during the qualification period.[60]
[60] Exhibit 2, Secretary's Statement of Facts and Contentions dated 30 January 2018, para 31.
Using the Impairment Tables
The level of impact of Ms Noy’s Impairment needs to be assessed against the descriptors[61] (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).[62]
[61]Determination, see ss 3 and 5(3).
[62] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[63]
[63] Determination, see s 6(1).
The Determination provides that:
(a)the following information must be taken into account in applying the Tables:[64]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)the following information must not be taken into account in applying the Tables:[65]
(i)symptoms reported by Ms Noy in relation to her condition where there is no corroborating evidence;
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Noy’s local community.
[64] Determination, see s 7.
[65] Determination, see s 8.
The appropriate Table is determined by:[66]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[66] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[67]
[67] Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[68]
[68] 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.[69]
[69] 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.[70]
[70] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table for this Impairment.
The introduction to Table 5 provides:[71]
[71] Determination, Introduction to Table 5.
·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:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews 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 provide as follows:[72]
[72] Determination, Table 5.
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.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
In order to assign an Impairment Rating of 20 points the evidence would need to show that there is a severe functional impact on activities involving mental health function. The Descriptors for an Impairment Rating of 20 points provide:[73]
[73] The Determination, Table 5.
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.
The Secretary contends that an Impairment Rating of 10 points under Table 5 of the Impairment Tables during the Qualification Period is appropriate because:[74]
(a)Dr Platt had indicated in 2014 that Ms Noy responded well to CBT and had improved;
(b)Dr De Leacy described Ms Noy’s condition as of “moderate severity” in June 2016;
(c)Dr De Leacy’s report provided that:
Her concentration was not totally adequate as she was slow at performing tests. She is distracted. She does not lack intelligence however...
Her day to day life is affected by her physical state significantly. She is not able to do work around the house, she is unable to do her shopping. She depends on her housemates. Her psychological state leads to disorganisation. She cannot organise herself well. Because of her poor sleep, she sleeps most of the date and does practically nothing.... ·
She could benefit from monthly sessions with a psychiatrist but I would not be overly optimistic that this would make a significant difference given the complexity of this woman's problems.'
[74] Exhibit 2, Secretary's Statement of Facts and Contentions dated 30 January 2018, para 32.
Mr Marcon, Psychologist, described Ms Noy’s depression condition as “severe” in January 2017.[75] While Mr Marcon’s report is just outside the Qualification Period, it was prepared closer in time to the Qualification Period than Dr De Leacy’s reports and therefore may provide insight into Ms Noy’s condition during the Qualification Period. In Mr Marcon’s opinion, compelling Ms Noy to look for work would greatly affect her emotional state in a negative way which could cause her further harm.
[75] Exhibit 1, T-documents, T30, page 124, Letter from Nic Marcon, Principal Psychologist, Emotional Balance dated 18 January 2017.
There is little other corroborating evidence regarding how Ms Noy’s Mental Health Impairment impacts on her ability to function. The Tribunal finds that an appropriate Impairment Rating could fall between 10 and 20 points. Where an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[76] There is no corroborating evidence that Ms Noy satisfies all of the descriptors for a 20-point rating during the Qualification Period. Ms Noy told the Tribunal that her Mental Health Impairment had deteriorated significantly since the Qualification Period and she has been placed on increased levels of medication as a result. This information would be relevant, with a corroborating medical report, to Ms Noy’s subsequent DSP claim.
[76] Determination, see s 11(1).
The impact of Ms Noy’s Mental Health Impairment on her ability to function during the Qualification Period warrants an Impairment Rating of 10 points under Table 5.
IS MS NOY’S KNEE IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?

The medical evidence establishes that Ms Noy had signs of early osteoarthritis in early 2016 and was referred to an Orthopaedic Clinic in April 2016.[77] In October 2016 Ms Noy had had an arthroscopy and meniscus repair, and continued physiotherapy was planned.[78]
[77] Exhibit 1, T Documents, T 13, page 51, X-ray report dated 7 January 2016.
[78] Exhibit 1, T Documents, T 29, pages 122 – 123, Medical certificate of Dr Subramaniyam dated five December 2016
The Tribunal finds that the evidence indicates that the Knee Impairment was not fully treated during the Qualification Period because she was continuing to be reviewed and had not yet commenced the recommended physiotherapy treatment.[79] Therefore, no Impairment Rating can be assigned to Ms Noy’s Knee Impairment.
[79] Ms Noy did not commence physiotherapy treatment until June 2017: Exhibit 1, T Documents, T39, pages 143- 144, Report of Ms Rebecca Lee, Physiotherapist.
If Ms Noy’s Knee Impairment has now been fully treated and stabilised and is causing an impact on her ability to function, it will no doubt be considered in relation to her subsequent DSP application.
WERE MS NOY’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. The Tribunal has found that Ms Noy’s permanent Impairment attracted a 10-point impairment rating, and therefore she does not satisfy section 94(1)(b).
DID MS NOY HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As the Tribunal has concluded that Ms Noy’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables during the Qualification Period it is not necessary to consider whether she had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) of the Act.
CONCLUSION
Ms Noy’s claim fails. Her impairments did not attract an impairment rating of 20 points or more under the Impairment Tables during the Qualification Period and as a result, she did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 86 (eighty - six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..............................[sgd]...................................
Associate
Dated: 4 May 2018

Date of hearing: 18 April 2018

Applicant: By Phone

Advocate for the Respondent: Ms Jasmine Forsyth

Solicitors for the Respondent: Department of Human Services

(Cth).

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].

[2018] AATA 1272

4 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date of hearing:	18 April 2018
Applicant:	By Phone
Advocate for the Respondent:	Ms Jasmine Forsyth
Solicitors for the Respondent:	Department of Human Services