O’Sullivan and Secretary, Department of Social Services (Social services second review)

[2020] AATA 2541

O’Sullivan and Secretary, Department of Social Services (Social services second review) [2020] AATA 2541 (28 July 2020)

Division:GENERAL DIVISION

File Number:2019/1154          

Re:Christine O’Sullivan  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West 

Date:28 July 2020  

Place:Melbourne

The decision under review is affirmed.

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

Member R West 

Catchwords

SOCIAL SECURITY – disability support pension – left knee osteoarthritis – right shoulder condition – depression and anxiety – chronic back and hip pain - whether conditions fully diagnosed, treated and stabilised in the qualification period –  whether impairments attract rating of 20 points or more under Impairment Tables – program of support not undertaken – whether applicant has a severe impairment – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Negri v Secretary, Department of Social Services [2016] FCA 879

Secondary Materials

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 (Cth)

REASONS FOR DECSION

Member R West

28 July 2020

BACKGROUND

1. This matter concerns a review of the decision of the Administrative Appeals Tribunal (Social Services & Child Support Division) dated 15 February 2019 affirming the decision of Services Australia to refuse the Applicant’s claim for the Disability Support Pension (DSP) (Second Tier Review).

2. The relevant history of the matter is as follows:

   ·     The Applicant was in receipt of the DSP from 5 February 2008 until 11 August 2016 in relation to a permanent impairment resulting from a shoulder and upper arm disorder and a lower limb condition. 

   ·     The Applicant’s receipt of the DSP ceased on 11 August 2016 when she transferred to a carer payment and carer allowance to provide care for her father. In May 2017 the Applicant’s father was transferred to a nursing home and the Applicant’s care entitlements ceased. 

   ·     On 25 August 2017 the Applicant again made an application for DSP.

   ·     The application was refused on 11 January 2018(Initial Decision).

   ·     A Departmental authorised review officer (ARO) affirmed this decision on
   22 November 2018 (ARO Decision).

   ·     On 15 February 2019 the Administrative Appeals Tribunal (Social Services & Child Support Division) affirmed the ARO Decision (First Tier Review).

   ·     The Applicant applied for a Second Tier Review by the General Division of the Tribunal on 1 March 2019.

3. A hearing in relation to the Second Tier Review was held on 12 May 2020.  The Applicant was self-represented.  The Respondent was represented by Ms Cailin Farrell, a solicitor.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID-19 pandemic. These restrictions necessitated that the hearing not be conducted in person. The Applicant and the Respondent each consented to the hearing proceeding on 12 May 2020 on the basis that it was conducted by telephone.

   LEGISLATION

5. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·     Social Security Act 1991 (the Act);

   ·     Social Security (Administration) Act 1999 (the Administration Act);

   ·     Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the Rules): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

   ·     Social Security (Active Participation for Disability Support Pension) Determination 2014; and

   ·     Administrative Appeals Tribunal Act 1975.

   QUALIFICATION PERIOD

6. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] Social Security (Administration) Act 1999, ss 37 and 42 and cls 3 and 4 of Schedule 2.

7. In this case the qualification period commenced on 25 August 2017 and ended on 24 November 2017.

8. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33] and Re Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

9. To qualify for a DSP an applicant must satisfy the requirements set out in s 94(1) of the Act as assessed during the qualification period.

10. In essence s 94(1) of the Act relevantly requires that:

    ·     the Applicant have a physical, intellectual or psychiatric impairment; and

    ·     the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    ·     the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table) or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    ·     the Applicant has a continuing inability to work or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support as defined in s.94(3C) and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if:

    a.they had participated in a program for at least 18 months in the three years immediately prior to the date of claim; or

    b.if the program of support was terminated before the end of the relevant period because the person was unable, solely because of their impairment, to improve their capacity to prepare for, find or maintain work through continued participation in the program; or

    c.if, at the end of the relevant period, the person was prevented, solely because of their impairment, from improving their capacity to prepare for, find or maintain work through continued participation in the program.

    CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

13. In conducting the Second Tier Review the Tribunal has had regard to:

    a)the documents produced by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T Documents and Supplementary T Documents).

    b)the oral evidence of:

    ·     the Applicant; and

    ·     the Applicant’s son, Steven Hannigan.

    c)the following additional documents:

    ·     the medical report of Dr Beikaee, dated 12 June 2019 (Exhibit A1); and

    ·     the medical report of Dr Beikaee, dated 17 September 2019 (Exhibit A2).

14. The Applicant’s claim on review related to the following conditions:

    ·     left knee osteoarthritis;

    ·     right shoulder/ upper limb disorder;

    ·     psychological disorder; and

    ·     chronic lower back and hip pain.

15. At the outset of the proceedings the Applicant acknowledged that she had not actively participated in a program of support, as required by s 94(2) of the Act. This was because, at the time of lodging her claim for the DSP in August 2017, she had not had the opportunity to participate in a program for at least 18 months in the three years immediately prior to the date of her claim, as required by s 7 of the Determination.

16. Accordingly, the issue of whether the Applicant met the requirements of s 94(2) of the Act during the qualification period depends solely on whether any of her impairments is a severe impairment, attracting a rating of 20 points or more on any one of the Impairment Tables.

17. The first issue for determination for each condition is whether the Applicant’s claimed impairments can be rated under the Impairment Tables. An impairment rating can only be assigned if the Tribunal is satisfied that during the qualification period the Applicant’s condition causing the impairment is permanent, that is, fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.[3]

    [3] Social Security Act 1991, s 94(1).

    Left Knee Osteoarthritis

18. The Respondent accepted that the Applicant’s left knee osteoarthritis was fully diagnosed, fully treated and fully stabilised during the qualification period and contended that it would attract a functional impairment rating of five points under Table 3 – Lower Limb Function of the Impairment Tables.

19. The Applicant’s left knee condition is of long standing.  Her left knee was injured initially in a car accident in 2006 requiring surgery and with subsequent ongoing pain. This was confirmed in a report of Mr Bernard Lynch, orthopaedic surgeon, dated 29 May 2007[4] who reported that the Applicant had left knee anteromedial pain. An MRI of the left knee taken on 4 June 2007[5]  revealed mild to moderate lateral patellar facet chondral degeneration as described with medial joint compartment degenerative changes and mild superficial infrapatellar fat pad oedema. Similar findings were made following an MRI of her left knee on 27 July 2017[6].

    [4] T7, p34.

    [5] T8, p35.

    [6] T15, p63.

20. The evidence clearly shows that the arthritic pain in her left knee persisted during the qualification period.  Her treating doctor Dr Beikaee reported on 31 July 2017[7] that the Applicant had severe pain in her left knee and his medical reports of 23 October 2017[8] and 16 January 2018[9] each record that the Applicant was suffering from osteoarthritis of the left knee.

    [7] T16, p66.

    [8] T22, p106.

    [9] T25, p112.

21. The Applicant was referred by Dr Beikaee for assessment and management of her left knee condition to the Orthopaedic Clinic Outpatient Department at Northern Hospital on 31 July 2017[10] and to the Outpatient Clinic – Orthopaedic Clinic at Kilmore Hospital on     23 October 2017[11] due to severe pain in her left knee. A report of Mr Anton Harms, advanced musculoskeletal physiotherapist, dated 22 March 2018[12] stated the Applicant was assessed in the Osteoarthritis Hip and Knee Service at Northern Health regarding her left knee pain on 1 and 22 March 2018. He stated that given her age and the moderate osteoarthritic change, an orthopaedic surgical assessment to consider knee arthroplasty is not indicated and she has been discharged.

    [10] T16, p66.

    [11] ST77, p133.

    [12] ST84, p144.

22. In Dr Beikaee’s report of 16 January 2018[13] he stated that the Applicant had an ongoing issue with the severe osteoarthritis of her knees. He said she was booked for possible knee replacement surgery at Northern Hospital, but her condition is stable at the moment and I believe as she is doing physio and tries to do conservative treatment her condition would be stable until she manages to see the specialists at the hospital. In a subsequent report dated 14 June 2018[14] Dr Beikaee stated that the Applicant had seen an orthopaedic surgeon and had been told that her condition was stable and that she could manage with pain killers and other conservative treatment. Later reports by Dr Beikaee[15] confirmed that the Applicant’s condition was stable although prone to flare up, but could be managed with pain medication.

    [13] T25, p112.

    [14] T27, p119.

    [15] T34, p143.

23. On the basis of this medical evidence, the Tribunal is satisfied that during the qualification period the Applicant suffered from an osteoarthritic condition in her left knee which was fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.

24. The Applicant gave evidence that she had been in receipt of carer payments from August 2016 until May 2017 as she had performed the role of carer for her aged father until he was admitted to a nursing home. She stated that her father suffered from dementia. The Applicant told the Tribunal that her role was limited and she supervised his medication and took him for coffee once per week. She said that she paid others to attend to showering her father and that her son did the housework and cooking, although she helped when she could. 

25. The Applicant described the effect of her left knee condition during the qualification period.  She said that she walked with the aid of a walking stick and used it to shuffle to the bathroom and the toilet. She said she could walk around a supermarket with the support of a trolley, but she rarely went to the supermarket. The Applicant said she was able to drive a car and could drive to the supermarket and to her doctor, but after five minutes driving her hip played up.  She told the Tribunal she could climb stairs one step at a time but with difficulty as it is hard on her legs and she can’t bend her knee. She said she avoids stairs and uses escalators or lifts, but she avoids escalators as much as possible as she is scared her leg will collapse causing severe pain and risking a fall.  The Applicant uses a recliner chair at home which assists her to stand up from a seated position, but if she sits in a normal chair she needs assistance to stand up, usually from her son who is her carer. She said she last used public transport several years ago and not during the qualification period.

26. The appropriate Impairment Table to assess the Applicant’s left knee condition is Table 3 – Lower Limb Function.

27. In assessing the functional impairment resulting from the Applicant’s left knee condition under the Impairment Tables, the Tribunal is mindful of s 8(1) of the Rules which states that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

28. There is limited medical evidence to corroborate the Applicant’s self-assessment of her left knee condition. Dr Beikaee confirmed in his report of 16 January 2018[16] that the Applicant’s knee and shoulder issues restrict her from performing daily activities and that she had to rely on family for daily activities, but he did not provide any details. The Respondent placed reliance on a JCA report of 15 November 2018[17] which was based on a face-to-face assessment of the Applicant by an occupational therapist.  The assessor concluded that there was no functional impact on activities requiring use of the lower limbs and the Applicant’s condition warranted a rating of zero points under Table 3.  The assessor observed that the Applicant mobilised independent without aid at a slowed pace. She transferred independently. The Tribunal gives this assessment little weight as it was conducted twelve months after the qualification period.

    [16] T25, p112.

    [17] T31.

29. The Applicant’s son gave some corroborating evidence.  He stated that he has performed the role of carer to the Applicant since 2016 or 2017.  He said he started to receive carer payments from the start of 2019.  He told the Tribunal that he lives with the Applicant and does all of the housework, cooking and shopping. He confirmed that the Applicant was able to come shopping with him and that she could walk around the supermarket with the support of a trolley.  He said that the Applicant could travel in the car with him and was able to drive herself for a short trip, such as to doctor’s appointments.  He said that she could get in and out of the car by herself using her walking stick and the car door for support, but he assisted her to get in and out of the car when they travelled together.  He confirmed that the Applicant sought his support to get out of a normal chair and she struggles if he is not there to help. He confirmed that the Applicant was able to shower and go to the toilet herself, but she required his assistance to get dressed and he brushed her hair.

30. In the AAT 1 Decision the Tribunal accepted that the Applicant had difficulties walking to local facilities, walking around a shopping mall or supermarket without a rest, and climbing stairs. The Tribunal also found that the Applicant was unable to stand for more than 10 minutes and mobilise effectively, and needed to use a walking stick.

31. The Tribunal is not satisfied that the Applicant’s left knee condition warrants a rating of zero points under Table 3.  The evidence does not support a conclusion that the Applicant can without difficulty walk on a variety of surfaces or use stairs.

32. The Tribunal is satisfied that the Applicant meets the criteria for a rating of five points under Table 3. The Applicant’s evidence was that she had some difficulty climbing stairs and walking to local facilities, albeit that she could mobilise effectively using a walking stick.  This was corroborated by her son’s sworn evidence and is generally consistent with Dr Beikaee’s overall assessment that she was restricted in her daily activities. 

33. The Tribunal is not satisfied that the evidence supports a finding that the Applicant’s left knee condition warrants a rating 10 points under Table 3. The Applicant’s own evidence was that she could drive a motor vehicle and walk around a supermarket, albeit with the support of a trolley. When questioned about the use of public transport she stated that she chose not to use it, but there was no evidence that she was unable to do so. Section 6 of the Rules states that a person must be assessed on what they can or cannot do and not what they choose to do. In addition, the evidence does not establish that the Applicant required the assistance of another person to use stairs or steps or that she was unable to stand for more than five minutes.

34. Similarly, the evidence does not support a finding that the Applicant’s condition justifies a rating of 20 points under Table 3. The evidence indicates that the Applicant can walk from a carpark into a supermarket and around a supermarket, without the assistance of another person. There is no evidence that the Applicant requires the assistance of another person to use public transport.

35. The Tribunal therefore finds that during the qualification period the Applicant’s left knee osteoarthritis was a permanent impairment attracting a functional impairment rating of five points under Table 3 of the Impairment Tables.

    Right Shoulder/ Upper Limb Disorder

36. The Respondent accepted that the Applicant’s right shoulder/upper limb disorder was fully diagnosed, fully treated and fully stabilised during the qualification period. The Respondent contended that it would attract a functional impairment rating of five points under Table 2 – Upper Limb Function of the Impairment Tables.

37. The Applicant injured her right shoulder in a motor vehicle accident in 2006. Dr Bernard Lynch, orthopaedic surgeon, reported on 3 April 2007[18] that two weeks earlier the Applicant had undergone an excisional arthroplasty of the right AC joint and removal of glass from the back of her right shoulder. He recommended that the Applicant undergo physiotherapy. On 29 May 2007[19], Dr Lynch reported that the Applicant had a good result from her right shoulder surgery but had a little numbness over the lateral aspect of the wounds and low grade symptoms referrable to the well healed scar. The Applicant reported chronic pain in her shoulder which occasionally radiated down her arm to a job capacity assessor in October 2007[20]. The Applicant’s right shoulder condition was reported to be fully diagnosed, fully treated and fully stabilised by Dr Richard Siemienowicz on 14 February 2008[21].

    [18] T6, p33.

    [19] T7, p34.

    [20] PT11, p43.

    [21] See JCR report of 14 February 2008 at PT13, p56.

1. An X-ray and an ultrasound were conducted on the Applicant’s right shoulder in June 2017. A report dated 5 June 2017[22] by Dr Harish Narayanan revealed that the Applicant had moderate subacromial bursitis.

   [22] T14, p62.

2. Dr Beikaee diagnosed the Applicant with osteoarthritis of the right shoulder on 23 October 2017[23].  In Dr Beikaee’s report dated 11 February 2019[24] he reported that the Applicant’s right shoulder condition was stable and she was receiving physiotherapy and general pain management.

   [23] T22, 106.

   [24] T34, p143.

3. On the basis of the medical evidence, the Tribunal is satisfied that the Applicant suffered from osteoarthritis in her right shoulder/upper arm which was fully diagnosed, fully treated and fully stabilised during the qualification period, and which was likely to persist for more than two years.

4. The Applicant described the effect of her right shoulder condition during the qualification period. She gave evidence that she could not lift her arm up to shave her armpit or to use deodorant, could not reach up to an overhead cupboard and was unable to brush her hair.  She said she needed assistance from her son to get dressed, but could do up buttons.  The Applicant told the Tribunal she was unable to peel potatoes and had difficulty opening screw-top bottles and jars. She said she could not lift anything heavy with her right arm, including a carton of milk. She did not have difficulty picking up small objects such as coins. The Applicant said she was able to write with a pen but not for long periods, as it produced numbness and pain.  She stated she could use a computer, but could only operate the keyboard with one finger of her left hand. She said she did not read books but listened to audio books on her computer.

5. The appropriate Impairment Table to assess the Applicant’s Right Shoulder/ Upper Limb Disorder is Table 2 – Upper Limb Function.

6. Again there is limited medical evidence to corroborate the Applicant’s self-assessment of her condition as required by s 8(1) of the Rules. Dr Beikaee’s report of 16 January 2018[25] conflates the Applicant’s shoulder condition with her knee condition in noting that the conditions restrict her from performing daily activities. The JCA report of 15 November 2018[26] states that the Applicant has a shoulder condition that impacts on manual dexterity and tolerance for repetitive upper limb tasks. Symptoms may impact on the ability to lift and carry loads, complete overhead tasks and manual handling. As previously observed, this assessment was conducted 12 months after the qualification period, and the Tribunal gives it little weight.  The evidence of the Applicant’s son offers little by way of corroboration in relation to the Applicant’s right shoulder condition.

   [25] T25, p112.

   [26] T31.

7. To warrant a rating of five points under Table 2, the Tribunal must be satisfied that the person has some difficulty with most of the following:

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

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

   c)doing up buttons; and

   d)reaching up or out to pick up objects.

8. The Applicant’s own evidence was that she could handle coins and do up buttons. While she did say that she could not pick up a carton of milk with her right hand there was no evidence that she had difficulty reaching up or out to pick up an object. On this evidence alone there is no basis for a finding that the Applicant’s right shoulder condition attracts a functional impairment rating of five points under Table 2 of the Impairment Tables. Similarly, under Table 2 a rating of 10 points requires the person to have difficulty with the majority of the six specified criteria. The evidence establishes that the Applicant does not have difficulty holding a pen, using a keyboard or doing up buttons and there is no evidence to support a conclusion that the Applicant could not pick up a light but bulky object requiring the use of two hands.  On this basis, the Tribunal is satisfied that a rating of less than five points is appropriate.

9. The evidence does indicate that the Applicant had some difficulty in handling objects encountered in daily life and on this basis the Applicant may not satisfy the criteria for a rating of zero points. However, s 11(1)(c) of the Rules requires that where an impairment falls between two ratings the lower of the two is to be assigned.

10. Accordingly, the Tribunal finds that during the qualification period the Applicant’s Right Shoulder/Upper Limb Disorder was a permanent impairment attracting a functional impairment rating of zero points under Table 2 of the Impairment Tables.

    Psychological Disorder

11. The Respondent contended that the Applicant’s psychological disorder was not fully diagnosed, fully treated or fully stabilised during the qualification period. In the alternative, the Respondent contended that the condition would attract a functional impairment rating of no more than 10 points under Table 5 – Mental Health Function of the Impairment Tables.

12. The Applicant was first diagnosed by Dr John King, psychiatrist, with post-traumatic stress disorder (PTSD) and an adjustment disorder with depressed mood in June 2008[27].  The diagnosis of PTSD was confirmed by Ms Ana Gasparis, psychologist, in her report of 20 August 2008[28].  There is no medical evidence from either Dr King or Ms Gasparis as to the progress of the Applicant’s medical condition over the nine years from 2008 to 2017.

    [27] ST21, p28.

    [28] ST27, p54.

13. During the qualification period in August to November 2017, the only contemporaneous evidence of a mental health condition is from the reports of Dr Beikaee, a general practitioner. In his report of 31 October 2017[29] Dr Beikaee opined that the Applicant had major depressive disorder with negative thoughts. In his report of 16 January 2018[30], he said that the Applicant had been clinically diagnosed with depression. 

    [29] ST78, p135.

    [30] T25, p112.

14. The Introduction to Table 5 of the Impairment Tables makes it clear that the diagnosis of a mental health condition must be made by a suitably qualified medical practitioner, specifically a psychiatrist or a clinical psychologist, before it can be assessed under Table 5.

15. Dr Beikaee is a general practitioner, and not a suitably qualified medical practitioner, for the purpose of assessment under Table 5. However, Dr Beikaee’s diagnosis of depression was confirmed subsequent to the qualification period. Ms Sarah Hellwege, psychologist, stated in her report of 13 September 2018[31] that the Applicant had depression and anxiety. Dr Ruwangi Malvenna, psychiatrist, reported on 23 October 2018[32] that the Applicant had recurrent major depression – currently moderately depressed…borderline personality traits (chronic suicidal ideas, anger problems) and possible perfectionists [sic] traits. 

    [31] T28, p120.

    [32] T30, p123.

16. On the basis of this evidence the Tribunal is satisfied that Dr Beikaee’s diagnosis during the qualification period was confirmed by an appropriately qualified medical practitioner. Accordingly, the Applicant’s depression was fully diagnosed during the qualification period.

17. In considering whether a condition has been fully treated, s 6 of the Rules requires a consideration of what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or planned in the next two years.

18. In assessing whether a condition is fully stabilised, the Tribunal is required to consider whether the person has undertaken reasonable treatment, as defined in s 6(7) of the Rules.  If the person has undertaken reasonable treatment, the question is whether any further treatment would be unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years. If the person had not undertaken reasonable treatment, the question is whether significant functional improvement to a level enabling the person to undertake work in the next two years is not expected, even if reasonable treatment is undertaken, or there is a medical or other compelling reason not to undertake reasonable treatment.

19. Section 6(7) of the Rules provides that reasonable treatment is treatment that:

    (a)       is available at a location reasonably accessible to the person;

    (b)       is at a reasonable cost;

    (c)       can reliably be expected to result in a substantial improvement in functional          capacity;

    (d)       is regularly undertaken or performed;

    (e)       has a high success rate; and

    (f)        carries a low risk to the person.

20. The evidence shows that subsequent to the qualification period, the Applicant was seen by a psychiatrist, Dr Malvenna, for opinion and management and received counselling from a psychologist, Ms Hellwege[33]. However, the Applicant’s treatment prior to and during the qualification period was less comprehensive. She had commenced taking medication in May 2017 and obtained some limited psychological counselling prior to January 2017, but before and during the qualification period she had not had any psychiatric intervention[34].

    [33] ST93, p166.

    [34] T26, p114.

21. A mental health care review dated 21 January 2016[35]  noted that the Applicant’s medication at that time was limited to pain medication (digesics and panadeine forte). In relation to the required treatments for her anxiety and depression, it stated that she should see a psychologist to reduce symptoms and improve function and possibly consider medication and seeing a psychiatrist. It was noted that there was a referral to Mr Anthony Monteleone, psychologist, although there is no evidence to indicate that the Applicant actually saw Mr Monteleone.

    [35] ST55.

22. A report of Ms Ilkay Kolege, psychologist, dated 18 January 2017[36]  reported that the Applicant had attended two sessions for psychotherapy but then ceased attending therapy.

    [36] ST 71, p122.

23. A mental health treatment plan dated 11 May 2017[37] noted that the Applicant had relapsed, was teary and anxious and had commenced taking Pristiq 50 mg and Serepax 15 mg for her anxiety and depressive disorders. It also indicated that she had been referred to a social worker/counsellor, Ms Tanya Jordan.

    [37] ST 73, p128.

24. A further mental health treatment plan was completed at the end of the qualification period on 28 November 2017[38]. The plan noted that the Applicant was finding it difficult to cope with low mood and poor sleep and was feeling stressed and overwhelmed. She recorded a maximum score of 50 on her K10 questionnaire[39], indicating that she was suffering severe distress. The plan recommended that the Applicant continue to see her counsellor, Ms Jordan, and maintain her medication.

    [38] ST81, p139.

    [39] ST82, p141.

25. Subsequent to the qualification period Dr Beikaee reported in June 2018 [40] that the Applicant:

    ...has been clinically diagnosed with depression and has been on medication (Pristiq 100mg daily which was not helpful and hence has changed to Zoloft as of May 2018). She has been seeing psychologist for counselling and despite all these her mood is still low and she is still depressed. Her depression is at a stable phase now, although depending on her family dynamics and her chronic pain she may have some flare ups of mood change and depression which we manage to control with change in her medication dosage and GP Counselling.

    [40] T27, p119.

26. A further health management plan dated 19 June 2018[41] noted that the Applicant felt that her mood had been getting worse and that she would really benefit from counselling.  It noted that the Applicant had not been able to see a psychologist for a while due to financial reasons and that she was to be referred to a bulk billing psychologist.

    [41] ST89, p153.

27. On the basis of this evidence, the Tribunal finds that the Applicant’s treatment during the qualification period was limited to counselling by a social worker/counsellor with the introduction of appropriate medication, but not a well-developed medication regime. In addition the Applicant had not seen a psychiatrist at all, nor had she seen a psychologist as recommended since at least January 2017. The evidence indicates that her mood was not stable during that period as indicated by the results of her K10 test in November 2017. 

28. The Tribunal is satisfied that management and treatment by a psychiatrist and ongoing psychotherapy/counselling by a psychologist are reasonable treatments within the meaning of s 6(7) of the Rules. By undertaking such treatment, the Applicant could be expected to experience a substantial improvement in her mental functional capacity enabling her to undertake work in the next two years.

    On this basis, the Tribunal finds that the Applicant’s mental health condition was not fully treated and fully stabilised during the qualification period and therefore cannot be given a functional impairment rating under the Impairment Tables.

    Chronic Lower Back and Hip Pain

29. The Respondent contended that the Applicant’s claimed chronic lower back and hip pain was not fully diagnosed, fully treated or fully stabilised during the qualification period and therefore could not be given a functional impairment rating under the Impairment Tables.

30. There is limited medical evidence regarding the Applicant’s claimed chronic back and hip pain. She was examined by X-ray and ultrasound on 13 October 2015[42] and mild trochanteric bursitis was evident. Dr Beikaee reported on 11 February 2019[43], nearly fifteen months after the qualification period, that the Applicant:

    …has chronic low back pain and hip pain, both of which has been assessed by specialist. This conditions [sic] are chronic but stable. They are restrictive for her daily activities and she has on and off flare ups of low back pain.

    [42] ST52, p93.

    [43] T34, p143.

31. However, there is no medical evidence regarding the Applicant’s claimed chronic lower back and hip pain at or about the qualification period. The Applicant’s DSP claim form dated 22 August 2017[44] does not refer to back or hip pain. Medical reports by Dr Beikaee dated 23 October 2017[45] and 16 January 2018[46] do not refer to back and hip pain. A Employment Services Assessment Report of 1 February 2018[47], which refers to the medical evidence available, makes no mention of back and hip pain.

    [44] T18.

    [45] T22.

    [46] T25.

    [47] T26, p.113.

32. On the basis of the medical evidence available, the Tribunal is not satisfied that the Applicant suffered from a chronic back and hip pain condition which was fully diagnosed, fully treated and fully stabilised during the qualification period. Therefore, the Tribunal is unable to assess the condition under the Impairment Tables.

    CONCLUSION

33. The Applicant’s impairment resulting from her conditions of left knee osteoarthritis, right shoulder/ upper limb disorder, psychological disorder and chronic lower back and hip pain do not attract a rating of 20 points or more under a single table of the Impairment Tables. Given the Applicant has not participated in a program of support as defined in s 94(3C) of the Act, the Applicant does not satisfy the requirements of s 94(1) of the Act and is ineligible for the DSP.

    DECISION

34. The Tribunal affirms the decision under review

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member R West.

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

Associate

Dated:            28 July 2020

Date of hearing:	12 May 2020
Applicant:	By telephone
Solicitor for the Respondent:	Ms Cailin Farrell, Sparke Helmore Lawyers