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

Radford and Secretary, Department of Social Services (Social services second review) [2017] AATA 1390 (30 August 2017)
Division:GENERAL DIVISION
File Number: 2017/1514
Re:Anthony Radford
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:30 August 2017
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – 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
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.
REASONS FOR DECISION
Member D K Grigg
30 August 2017
INTRODUCTION AND CLAIMS HISTORY

Mr Radford lodged a claim for Disability Support Pension (“DSP”) on 1 June 2016 describing his medical conditions as follows:[1]
[1] Exhibit 1, T Documents, T 9, pages 56 – 85, Mr Radford’s Claim for DSP dated 1 July 2016; T29, page 141,
Centrelink records.
·depression
·agitation
·panic attacks
·anxiety
·self-harm
·grief and loss
·knee injury
·ankle injury
·shoulder injury
The Department of Human Services (“Centrelink”) rejected Mr Radford’s claim for DSP on the basis that he did not have impairments with a total impairment rating of 20 points or more.[2]
[2] Exhibit 1, T Documents, T 12, pages 92 – 93, Letter from Centrelink to Mr Radford re- rejection of claim for
DSP dated 16 July 2016.
Mr Radford sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”).[3] The subsequent review by the ARO was unsuccessful on the grounds that Mr Radford’s medical conditions did not attract 20 points or more under the Impairment Tables.[4]
[3] Exhibit 1, T Documents, T 29, page 142, Centrelink records.
[4] Exhibit 1, T Documents, T 21, pages 111 – 116, Decision of ARO dated 21 November 2016.
Mr Radford then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Radford’s claim and affirmed the ARO’s decision on 10 February 2017.[5]
[5] Exhibit 1, T Documents, T2, pages 3 – 10, SSCSD’s Decision and Reasons for Decision dated 10 February 2017.
Mr Radford has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1- 2, Mr Radford’s Application for Review dated 17 March 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Radford must have a physical, intellectual or psychiatric impairment;
(b)Mr Radford’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”).[7]
(c)Mr Radford must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Radford meets the Section 94 Requirements is the date of the claim (in this instance as at 1 July 2016),[8] unless Mr Radford becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, to qualify for DSP Mr Radford must have met the Section 94 Requirements between 1 June 2016 and 31 August 2016 (“Qualification Period”).
[8] Exhibit 1, T Documents, T29, page 141, Centrelink records.
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Radford’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Date.[10]
DID MR RADFORD HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
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”.[11]
MR RADFORD’S MEDICAL CONDITIONS
[11] Determination, s 3.
Knee Condition
In August 2015 Dr Teu reported that Mr Radford had a right knee medial collateral ligament and medial meniscal injuries to his right knee.[12]
[12] Exhibit 1, T Documents, T4, page 50, Medical Certificate by Dr Teu dated 27 August 2015.
Shoulder Condition
Mr Radford told the Tribunal he had had surgery on both shoulders in 2011 and 2013 and had physiotherapy treatment afterwards.
Alcohol Abuse
In May 2016 Dr Sonia Green, General Practitioner, reported that Mr Radford was suffering from alcohol abuse and withdrawal.[13]
[13] Exhibit 1, T Documents, T5, page 51, Medical Certificate by Dr Green dated 23 May 2016.
In October 2016 Dr JK Ziukelis, Psychiatrist, considered that Mr Radford was not suffering any alcohol impairment.[14]
[14] Exhibit 1, T Documents, T18, page 102, Questionnaire completed by Dr Ziukelis dated 26 October 2016.
Mental Health
In May 2016 Dr Green reported that because of Mr Radford’s alcohol abuse and withdrawal, Mr Radford was experiencing agitation and depression and was taking antidepressants.[15]
[15] Exhibit 1, T Documents, T5, page 51, Medical Certificate by Dr Green dated 23 May 2016.
On 21 May 2016 Mr Radford presented to Dr Anayatullah Khokhar, his General Practitioner, distressed and expressing suicidal ideation. As a result, Mr Radford was admitted to hospital. Mr Radford was started on Mirtazapine, to be titrated up, and referred to Dr Khokhar for ongoing mental state examination. Mr Radford was discharged from hospital on 23 May 2016.[16]
[16] Exhibit 1, T Documents, T8, pages 54 – 55, Discharge Summary dated 10 June 2016.
In June 2016 Dr Khokhar reported that Mr Radford was depressed and crying, and was not sleeping.[17]
[17] Exhibit 1, T Documents, T6, page 52, Medical Certificate by Dr Khokhar dated 3 June 2016.
In July 2016 Dr Khokhar reported that Mr Radford was still feeling depressed and was not coping well. Dr Khokhar noted that Mr Radford was seeing a psychologist and taking anti-depressants.[18]
[18] Exhibit 1, T Documents, 10, page 86, Medical Certificate by Dr Khokhar dated 8 July 2016.
In August 2016 Dr Khokhar reported that Mr Radford was still feeling depressed with mixed anxiety, was not sleeping well and was angry. Dr Khokhar noted that Mr Radford was seeing a psychologist, taking antidepressants and had been referred to a psychiatrist.[19]
[19] Exhibit 1, T Documents, 14, page 95, Medical Certificate by Dr Khokhar dated one August 2016.
On 2 August 2016 Dr Ziukelis reported that:[20]
(a)Mr Radford had a major depressive disorder that began in 2002;
(b)his condition was currently exacerbated and likely to impact on Mr Radford’s capacity to work for the next 3 to 12 months;
(c)Mr Radford was experiencing insomnia, suicidal ideation, anxiety and withdrawal; and
(d)Mr Radford was taking antidepressant medication.
[20] Exhibit 1, T Documents, T 15, page 96, Medical Certificate I Dr Ziukelis dated August 2016.
Ms Sheree Holland, Psychologist, reported in August 2016 that she had had 10 psychological sessions with Mr Radford for the treatment of mixed anxiety and depression, together with substance abuse issues. She reported that as at 2 March 2016 the DASS–21 scale indicated that Mr Radford had extremely severe depression, extremely severe anxiety and severe stress. Ms Holland reports that on 15 August 2016 Mr Radford once again had suicidal ideation and was taken away for evaluation. Ms Holland noted that she was concerned that Mr Radford was no longer receiving treatment from herself or from the Acute Care Team or Continuing Care Team who are case managing him at Ashmore Adult Mental Health.[21]
[21] Exhibit 1, T Documents, T 16, Page 97, Report of Ms Holland dated 22 August 2016.
In September 2016 Dr Ziukelis reported that:[22]
[22] Exhibit 1, T Documents, T 17, page 99, Report of Dr Ziukelis dated 14 September 2016.
(a)he had seen Mr Radford on 3 occasions since August 2016;
(b)Mr Radford gave a history of several attempts at suicide since 2002;
(c)Mr Radford has been taken to the Gold Coast Hospital involuntarily on 2 occasions with suicidal ideation;
(d)Mr Radford’s current symptoms are those of depressed mood, social withdrawal and mild agoraphobia;
(e)the antidepressants taken by Mr Radford have been without benefit;
(f)Mr Radford no longer takes illicit drugs (and that he had a history of using “Ice”);
(g)Mr Radford has a borderline personality disorder (“BPD”) with features of depressed mood, impulsive behaviour, deliberate self-harm and chronic suicidal ideation;
(h)Mr Radford’s condition is now chronic, of long duration and incompatible with work;
(i)Mr Radford’s prognosis is unclear but the further duration is likely to be more than 2 years.
On 26 October 2016 Dr Ziukelis reported that:[23]
(a)Mr Radford had BPD which was a lifelong condition;
(b)his condition was currently exacerbated and likely to impact on Mr Radford’s capacity to work for an uncertain period;
(c)Mr Radford was experiencing depressed mood, suicidal ideation, pessimistic preoccupation, social withdrawal; and
(d)Mr Radford is currently taking medication.
[23] Exhibit 1, T Documents, T 19, page 103, Report of Dr Ziukelis dated 26 October 2016.
Conclusion on Impairment
The Secretary accepts that Mr Radford suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[24]
[24] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 28 July 2017, para 4.23.
Considering the above evidence, I conclude that at the Qualification Date Mr Radford suffered from 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.
There is not enough evidence regarding Mr Radford’s alcohol dependence for the Tribunal to be able to decide whether it was an impairment and permanent for the purposes of the Act during the Qualification Period. At a July 2016 Job Capacity Assessment conducted face-to-face with Mr Radford by a Registered Psychologist, Mr Radford reported that he had commenced counselling with a drug and alcohol service. There is no corroborating evidence of the treatment.[25] I also note that in October 2016 Dr Ziukelis reported that Mr Radford is no longer suffering from alcohol dependence.[26] At the hearing Mr Radford confirmed that he no longer suffers from alcohol dependency and that this condition was not relevant to this DSP claim.
[25] Exhibit 1, T Documents, T 11, page 88, JCA report dated 15 July 2016.
[26] Exhibit 1, T Documents, T18, page 102, Questionnaire completed by Dr Ziukelis dated 26 October 2016.
In relation to Mr Radford’s right knee condition there is no corroborating evidence of what treatment, if any, had been provided for this condition during the Qualification Period. Further, Mr Radford reported in his DSP claim form (and confirmed at the hearing before me) that he was expecting to have a knee operation in the future.[27] There is no specialist evidence or specialist referral evidence or any evidence regarding what kind of reasonable treatment should be undertaken in relation to Mr Radford’s right knee. I note however that given the mental health issues that Mr Radford was dealing with at that time, that may have been the reason his lower limb condition was not the focus of his treating doctors. However, as a result, I am unable to consider Mr Radford’s knee condition as an impairment or permanent for the purposes of the Act.
[27] Exhibit 1, T Documents, T9, page 81, Mr Radford's claim for DSP dated 1 July 2016.
In relation to Mr Radford’s shoulder condition there is no corroborating medical evidence. There is no specialist evidence or specialist referral evidence or any evidence regarding what kind of reasonable treatment should be undertaken in relation to Mr Radford’s shoulders. As a result, I am unable to consider Mr Radford’s shoulder condition as an impairment or permanent for the purposes of the Act.
DO MR RADFORD’S MENTAL HEALTH IMPAIRMENT 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.[28] They are function based[29] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[30]
[28] Determination, s 4(2) and 5(2)(a).
[29] Determination, s 5(2)(b) and (c).
[30] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[31]
(a)Mr Radford’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.
[31] Determination, see s 6(3).
Mr Radford’s condition can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[32]
(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.
[32] 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[33] the following must be considered:[34]
(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.
[33] For the purposes of ss 6(4)(a) and (b) of the Determination.
[34] Determination, see s 6(5).
A condition is fully stabilised[35] if:[36]
(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[37]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[35] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[36] Determination, see s 6(6).
[37] 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 I must first consider Mr Radford’s medical history, in relation to the condition causing the Impairment.[38]
MENTAL HEALTH IMPAIRMENT
[38] Determination, see s 6(2).
Diagnosis
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). Without such a diagnosis, no Impairment Rating can be assigned.
Mr Radford was diagnosed with:
(a)a major depressive disorder by Dr Ziukelis, Psychiatrist, on 2 August 2016. Dr Ziukelis reports that Mr Radford has had a major depressive disorder since 2002;[39]
(b)BDP with features of depressed mood, impulsive behaviour, deliberate self-harm and chronic suicidal ideation, by Dr Ziukelis, psychiatrist, on 14 September 2016.[40]
[39] Exhibit 1, T Documents, T 15, page 96, Medical Certificate I Dr Ziukelis dated August 2016.
[40] Exhibit 1, T Documents, T 17, page 99, Report of Dr Ziukelis dated 14 September 2016.
Dr Ziukelis reports that:[41]
(a)Mr Radford’s condition is now chronic, of long duration and incompatible with work;
(b)Mr Radford’s prognosis is unclear but the further duration is likely to be more than 2 years;
(c)Mr Radford’s BPD was a lifelong condition.
[41] Exhibit 1, T Documents, T 17, page 99, Report of Dr Ziukelis dated 14 September 2016; T 19, page 103, Report
of Dr Ziukelis dated 26 October 2016
The Secretary submits that because there are varying mental health diagnoses Mr Radford’s mental health was not fully diagnosed. I do not agree. The diagnosis of depression and BPD are different conditions. The fact that Mr Radford was suffering from both conditions does not mean there was any confusion by his psychiatrist regarding whether he was, in fact, depressed.[42]
[42] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 28 July 2017, para 4.25-4.26.
The Secretary also submits that because the depression was described by Dr Ziukelis in August 2016 as a temporary exacerbation of a permanent condition that this means it was not fully diagnosed or stabilised.[43] However, I again disagree. The key here is the fact that Mr Radford had a “permanent” underlying condition. The difficulty with psychological conditions is that the signs and symptoms may vary and fluctuate. This is recognised in the Introduction to Table 5 of the Determination (see paragraph 59 below). There is no doubt Mr Radford suffers from psychological impairments and during the Qualification Period his symptoms may have been more severe than usual.
[43] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 28 July 201, paras 4.24-4.26
The JCA in July 2016 concluded that Mr Radford’s depression was not fully diagnosed, treated, and stabilised because at that stage Mr Radford had not yet been seen by a psychiatrist clinical psychologist.[44] A further JCA was conducted by way of a file assessment by a registered psychologist on 17 October 2016 (“October JCA”). The October JCA determined that, given Mr Radford had now been assessed and diagnosed by Ms Holland and Dr Ziukelis, that Mr Radford’s mental health conditions were fully diagnosed, fully treated, and fully stabilised.[45]
[44] Exhibit 1, T Documents, T 11, page 88, JCA report dated 15 July 2016.
[45] Exhibit 1, T Documents, T 20, page 105, JCA Report dated 27 October 2016.

I find that Mr Radford’s depression was fully diagnosed during the Qualification Period.
From the medical evidence available the BPD condition was diagnosed after the Qualification Period. I also note that Dr Ziukelis makes reference in a Basic Rights Queensland Form to this condition being diagnosed in 2004 by Gold Coast Hospital,[46] however, there is no medical report of this. Dr Ziukelis confirms that there is no specific treatment for BPD and that crisis intervention and pharmacological sedation are used when required.[47] However, Mr Radford told the Tribunal that he was commencing clinical behavioural therapy treatment for the BPD in mid-August 2017. In the circumstances, while I accept that BPD is a lifelong condition,[48] there is not enough evidence to determine whether the BPD condition had been fully diagnosed, treated and stabilised during the Qualification Period and therefore cannot be considered permanent for the purposes of the Act and no Impairment Rating can be assigned.
[46]         Exhibit 1, T Documents, T22, page 118, Medical Questionnaire by Dr Ziukelis dated 20 December 2016.
[47]         Exhibit 1, T Documents, T 22, page 118, Medical Questionnaire by Dr Ziukelis dated 20 December 2016.
[48]         Exhibit 1, T Documents, T 17, page 99, Report of Dr Ziukelis dated 14 September 2016; T 19, page 103, Report
of Dr Ziukelis dated 26 October 2016
Treatment
Mr Radford has been treating his depression with antidepressants and psychological therapy since on or before May 2016.[49] In May 2016 Mr Radford was prescribed with Mirtazapine, an antidepressant used to treat a major depressive disorder, after expressing suicidal ideation.[50]
[49]         Exhibit 1, T Documents, T5, page 51, Medical Certificate by Dr Green dated 23 May 2016; T10, page 86, Medical
Certificate by Dr Khokhar dated 8 July 2016; T14, page 95, Medical Certificate by Dr Khokhar dated one August 2016; T 15, page 96, Medical Certificate I Dr Ziukelis dated    August 2016; T 16, Page 97, report of Ms Holland dated 22 August 2016; T 19, page 103, Report of Dr Ziukelis dated 26 October 2016.
[50]         Exhibit 1, T Documents, T8, pages 54 – 55, Discharge Summary dated 10 June 2016.
In September 2016 Dr Ziukelis reported that the antidepressants taken by Mr Radford had been without benefit.[51]
[51] Exhibit 1, T Documents, T 17, page 99, Report of Dr Ziukelis dated 14 September 2016.
The Secretary submits that because Mr Radford had not undertaken ongoing counselling, cognitive behavioural therapy and further specialist review or some other unidentified alternative treatment that therefore he had not been fully treated.[52] The Secretary also submitted that because his medication for depression had been regularly changed, this meant it had not been fully treated. There is no medical evidence to suggest that cognitive behavioural therapy is an appropriate treatment for Mr Radford’s conditions. Further it is impossible for the Tribunal to assess if some other alternative treatment was reasonable treatment when that alternative treatment has not even been identified, and has not been identified by Mr Radford’s own specialist treating doctors. Additionally, it is not uncommon for depression medication to be altered over time. Mr Radford told the Tribunal that he still takes anti-depressants but sometimes they needed to be changed or the dosages altered depending on their effectiveness.
[52] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 28 July 2017, para 4.27.
In terms of whether the condition has fully stabilised I also note that Dr Ziukelis determined in September 2016 that Mr Radford’s depression would continue for longer than 12 months. The Secretary suggests that because this opinion was proffered 2 weeks after the expiry of the Qualification Period, no weight can be given to that opinion[53] and that in August 2016 Dr Ziukelis had said it was a temporary exacerbation. However, this again misunderstands what exacerbation means in terms of mental illness. I also note the Dr Ziukelis confirmed that Mr Radford had a major depressive disorder that began in 2002. There is no evidence to suggest that is not correct or that the Secretary disputes whether Mr Radford had attempted suicide on several occasions since 2002. Therefore, to suggest that this condition is not fully stabilised given its very nature is neither fair nor accurate. To suggest that something dramatic has changed in the 2 week period after the Qualification Period, when there is no evidence to suggest that, is not at all persuasive. This is not a case where a medical practitioner is providing an opinion 6 months after of the Qualification Period.
[53] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 28 July 2017, para 4.28.
Conclusion
Based on the medical evidence available I find that Mr Radford’s Depression Impairment was fully diagnosed, fully treated, and fully stabilised during the Qualification Period.
Using the Impairment Tables
I have to assess the level of impact of Mr Radford’s Depression Impairment against the descriptors[54] (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).[55]
[54] Determination, see ss 3 and 5(3).
[55] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed 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.[56]
[56] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[57]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[57] Determination, see s 7.
I must not take into account the following information in applying the Tables:[58]
(a)symptoms reported by Mr Radford in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Radford’s local community.
[58] Determination, see s 8.
Which Tables are appropriate are determined by:[59]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[59] Determination, see s 10(1).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[60]
[60] 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.[61]
[61] 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.[62]
[62] 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.
The introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
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.
For Mr Radford to obtain the DSP, his condition would have to be a “severe impairment”, as defined in section 94(3B) of the Act, and attract an Impairment Rating of 20 points. This is because I have found that his other conditions are not permanent.
To assign an Impairment Rating of 20 points the evidence would need to show that Mr Radford’s Depression Impairment is having a severe functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 20 points are:
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.
To assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities involving mental health function.
(1)       The person has moderate difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)       social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)       concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)       behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)        work/training capacity.
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.
The October JCA assigned an Impairment Rating of 5 points.[63] To assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities involving mental health function. The Descriptors for an Impairment Rating of 5 points are:
[63]         Exhibit 1, T Documents, T 20, page 107, JCA report dated 27 October 2016.
There is a mild functional impact on activities involving mental health function.
(1)       The person has mild difficulties with most of the following:
(a)       self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b)       social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d)       concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e)       behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f)        work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
Evidence Identifying the Loss of Function
In June 2016 Dr Khokhar reported that Mr Radford was not sleeping, and he was crying.[64]
[64] Exhibit 1, T Documents, T6, page 52, Medical Certificate by Dr Khokhar dated 3 June 2016.
On 21 May 2016 Mr Radford was distressed and expressing suicidal ideation.[65]
[65] Exhibit 1, T Documents, T8, pages 54 – 55, Discharge Summary dated 10 June 2016.
In July 2016 Dr Khokhar reported that Mr Radford was not coping well.[66]
[66] Exhibit 1, T Documents, 10, page 86, Medical Certificate by Dr Khokhar dated 8 July 2016.
In August 2016 Dr Khokhar reported that Mr Radford was not sleeping well and angry.[67]
[67] Exhibit 1, T Documents, T14, page 95, Medical Certificate by Dr Khokhar dated one August 2016.
In August 2016 Dr Ziukelis reported that:[68]
(a)his condition was currently exacerbated and likely to impact on Mr Radford’s capacity to work for the next 3 to 12 months;
(b)Mr Radford was experiencing insomnia, suicidal ideation, anxiety and withdrawal; and
[68] Exhibit 1, T Documents, T 15, page 96, Medical Certificate I Dr Ziukelis dated August 2016.
Ms Holland reported in August 2016 that:[69]
(a)Mr Radford had extremely severe depression, extremely severe anxiety and severe stress;
(b)on 15 August 2016 Mr Radford once again had suicidal ideation.
[69] Exhibit 1, T Documents, T 16, Page 97, Report of Ms Holland dated 22 August 2016.
In September 2016 Dr Ziukelis reported that Mr Radford’s current symptoms are those of depressed mood, social withdrawal and mild agoraphobia.[70]
[70] Exhibit 1, T Documents, T 17, page 99, Report of Dr Ziukelis dated 14 September 2016.
In October 2016 Dr Ziukelis reported that Mr Radford:[71]
(a)was experiencing depressed mood, suicidal ideation, pessimistic preoccupation, social withdrawal;
(b)avoids social relationships and has little contact with family;
(c)is easily distracted and unable to engage in sustained tasks > 1 hour;
(d)is unable to plan for the future;
(e)has difficulty carrying out decisions.
[71] Exhibit 1, T Documents, T 19, page 103, Report of Dr Ziukelis dated 26 October 2016; T18, pages 100-101,
Questionnaire submitted by Dr Ziukelis dated 26 October 2016.
In January 2047 Dr Ziukelis reported that Mr Radford’s BPD (which incorporate the depressed mood) was having a moderate functional impact in that Mr Radford:[72]
(a)needs family support when suicidal but he lives independently;
(b)goes out alone infrequently and is not actively involved in social events and has increasing social withdrawal;
(c)has difficulty making friends and has few friends and little contact with them and no interest in maintaining or developing relationships;
(d)has poor concentration and attention, easy distractibility and preoccupation;
(e)becomes stressed and frustrated under pressure and is inclined to suicidal thoughts with a history of suicidal behaviour;
(f)difficulty interacting with peers and superiors.
[72] Exhibit 1, T Documents, T 22, pages 119-125, Medical Questionnaire by Dr Ziukelis dated 20 December 2016.
At the hearing Mr Radford gave the following evidence regarding how his mental health affects him: -
·Lives by himself
·Hate’s everybody
·Has not had a relationship for 15 years
·Will clean the house when he must
·Cooks (i.e. reheats soups, packet noodles) for himself
·Lives on meagre rations
·Does not like leaving home
·Gets angry at himself
·Hates himself
·Showers once/week to keep costs down
·Visits his daughter, and grandchildren, at his daughter’s house once/month when he has money
·Shops once/fortnight
·Drives if has petrol, otherwise he walks
·Buys his own food
·Watches TV but flicks channels a lot and gets bored
·Only uses a computer to communicate with Centrelink
·Talks to his brother on the telephone every couple of months - has no contact with his other siblings
·Talks to a friend of 35 years on the phone a couple of times per week
·How he feels fluctuates
·Having no money severely impacts his ability to do things.
Dr Ziukelis considered the Descriptors in Table 5 and reports that Mr Radford’s mental health condition is having a moderate impact on his ability to function.[73] However, Dr Ziukelis seems to contradict himself by saying it is likely that even with all further reasonable treatments and potential retraining, Mr Radford will be prevented solely by his impairments from working even 15 hours/week in any job within the next 2 years in the open market in Australia, because of Mr Radford’s intolerance of others, his chronically depressed mood, emotional extremes and his resort to self-harm.[74]
[73] Exhibit 1, T Documents, T18, pages 100-102, Information provided by Dr Ziukelis dated 26 October 2016; T22,
pages 117-126, Medical Questionnaire by Dr Ziukelis dated 20 December 2016.
[74] Exhibit 1, T Documents, T 22, page 125, Medical Questionnaire by Dr Ziukelis dated 20 December 2016.

The reports of Dr Ziukelis could support either a 10-point or 20-point rating. The Tribunal is bound to assign the lower of the two ratings in such circumstances.[75]
[75] Determination, see s 11(1).
Therefore, I find that Mr Radford’s Mental Health Impairment was having a moderate functional impact on activities during the Qualification Period and the appropriate impairment rating to be assigned for Mr Radford’s depression under Table 5 of the Impairment Tables is 10 points.
Mr Radford can, of course, reapply for the DSP, now that his BPD has been diagnosed and if the functional impact of his mental health conditions is severe and corroborated by medical evidence.
WERE MR RADFORD’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.
I have found that Mr Radford’s impairments only attract an impairment rating of 10 points and therefore he does not satisfy section 94(1)(b) of the Act.
DID MR RADFORD HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Mr Radford’s Impairments did not attract an impairment rating of 20 points therefore it is unnecessary for me to consider whether Mr Radford had a “continuing inability to work” (as defined in section 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
CONCLUSION
Mr Radford’s claim fails. His impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result he does not qualify for DSP during the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 30 August 2017

Date of hearing: 11 August 2017

Applicant: By Phone

Solicitors for the Respondent: Sparke Helmore

[2017] AATA 1390

30 August 2017

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Date of hearing:	11 August 2017
Applicant:	By Phone
Solicitors for the Respondent:	Sparke Helmore