Re: Anna D'AscanioAPPLICANTAnd Secretary, Department of Social ServicesRESPONDENT

[2021] AATA 849

D’Ascanio and Secretary, Department of Social Services (Social services second review) [2021] AATA 849 (9 April 2021)

Division: GENERAL DIVISION

File Number(s):       2020/0977

Re: Anna D’Ascanio

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal: Member I Thompson 

Date:9 April 2021

Place:Adelaide

The decision under review is affirmed.

..........................[Sgnd]..............................................

Member I Thompson

Catchwords

SOCIAL SECURITY – disability support pension – whether the applicant's conditions were fully diagnosed, fully treated and fully stabilised at the date of the claim or within 13 weeks – decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975
Social Security Act 1991

Social Security (Administration) Act 1999

Cases

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922.

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

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

INTRODUCTION

1. The applicant Anna D’Ascanio lodged a claim for disability support pension (DSP) on 5 March 2019.  Centrelink rejected the claim in the first instance and Mrs D’Ascanio requested a review of that decision.  An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.  Mrs D’Ascanio requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1).  The decision under review was affirmed.  Mrs D’Ascanio applied to the General Division of the Tribunal for a second review. 

2. The hearing took place on 20 November 2020.  Mrs D’Ascanio was represented by Ms Riley. Mr Chan represented the Respondent, the Secretary, Department of Social Services. All parties attended the hearing by telephone.

3. Mrs D’Ascanio gave evidence and called two witnesses, her daughter Lucia D’Ascanio and her general medical practitioner, Dr Kosmas. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.

4. Mrs D’Ascanio is now 58 years old. She suffers from medical conditions which include back pain, foot pain and a depressive disorder.

   LEGISLATION AND ISSUES

5. Section 94(1) of the Social Security Act 1991 (the Act) provides that a person qualifies for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables.  The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The assessment period in this case is 5 March 2019 to 4 June 2019.

6. Further, s 94(2) of the Act requires that a person has a continuing inability to work which will be satisfied if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”. 

7. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

8. Accordingly, Mrs D’Ascanio will qualify for the DSP if the Tribunal is satisfied that she has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that she has a continuing inability to work.

9. Mrs D’Ascanio’s claim for DSP listed her disabilities and medical conditions as a spinal cord injury and a mental health condition, with treatment which she noted as “countless medications, acupuncture, hydrotherapy, attempted to see numerous specialists, regular ongoing visits to my family GP, Psychologist.” [1]

   [1] T8 p 115

10. The Secretary accepted that Mrs D’Ascanio suffers from an impairment and therefore satisfies s 94(1)(a) of the Act.

11. In its Statement of Facts and Contentions, the Secretary contended that Mrs D’Ascanio does not satisfy s 94(1)(b) of the Act, that she did not have a continuing inability to work and was not qualified for the DSP during the assessment period.[2]

    [2] Exhibit 7

12. The main issue for determination is whether Mrs D’Ascanio’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, where she had a continuing inability to work.

    EVIDENCE

    MRS D’ASCANIO

13. Mrs D’Ascanio gave evidence by telephone. She is 58 years old. She resides with her husband and two adult daughters. She reached third year level at high school and studied for a year at a business college. In the past she has worked in a call centre for several years and subsequently she worked briefly as a cleaner in an aged care facility.

14. Mrs D'Ascanio told the Tribunal about problems she has with her back. Those problems have existed for several years. She has received treatment from her general medical practitioner, Dr Kosmas, and from a pain clinic at Modbury Hospital. Treatment has included anti-inflammatory medication and painkillers. Allied health treatment has included physiotherapy, hydrotherapy, acupuncture and yoga. However, Mrs D’Ascanio has little memory of the details of the treatment and medication she has undertaken. She cannot recall seeing a specialist of the Royal Adelaide Hospital, nor does she remember discussing her treatment with Dr Kosmas. She recalls some detail of her engagement with pain clinics at Modbury Hospital. She underwent some physiotherapy. She was also recommended to participate in a group session, but was not inclined to attend because of her anxiety, and because she wanted to stay at home. She exercises for approximately 10 minutes a day on a small exercise bicycle at home.  

15. Mrs D’Ascanio said she began suffering from anxiety when she was 17, after she was stabbed at work. She still has the physical scar resulting from this incident. Her daughters have been ill, and their health conditions have caused her anxiety. She said that her family tries to support her and help her to relax. Dr Kosmas talks to her in a comforting way. She cannot really recall seeing a psychologist, Alexandra Jolley, and she thinks she saw a psychiatrist, Dr Gallur, a few times at the hospital. She is not sure about the name or details of medication which she uses. Her husband manages it for her. She has had to change medication on occasions because it made her drowsy and sick.

16. Mrs D’Ascanio described for the Tribunal a normal day in her life at the time of the DSP claim. She wakes up at 10am feeling unrefreshed. Her sleep is constantly disturbed because her mind does not shut off. Her husband and daughters help her to shower, choose clothing and get dressed. She generally has her meals at home and rests in between them. Her only activity appears to be watering indoor plants and occasional dusting. She does not use a computer. The TV is on, but she does not watch it for long as she cannot concentrate for more than 10 minutes. She said that her mind goes elsewhere. Her husband makes the evening meal and she tries to help him by chopping the vegetables. She said that she gets overwhelmed, cannot retain information and frequently suffers from mental exhaustion. This pattern of behaviour started around the time her father died and her youngest daughter developed became ill. It has continued for 13 years.

17. Mrs D’Ascanio’s back problems restrict her ability to look over her shoulder without moving her entire body. As a result, Mrs D’Ascanio cannot perform certain tasks. Her husband does most of the domestic work. She says washing her hair is difficult. She cannot bend easily to pick up something from the floor. Her husband generally drives the car. She said that driving is hard because she must move her whole torso. The furthest she tends to drive is to the nearby shopping centre.  In the supermarket she can transfer shopping bags into the back of the car, however her husband is responsible for the larger shopping expeditions. She says she can press buttons but doesn't use a pen or pencil.

18. Socially, Mrs D’Ascanio says her family want her to get motivated. They encourage her to go out and get some fresh air. Sometimes she goes to the shopping centre for coffee and cake. Mainly she goes with her daughter, while sometimes she will go alone. She has no friends. She never catches a bus. Her husband takes her to see her mother. Family gatherings are problematic for her. For example, at her brother's birthday party she had to leave early as the music was too loud for her.

19. Mrs D’Ascanio doesn't think she will work or study because of her difficulties with concentration. She says she attended two sessions at a work training agency where she was given computer tasks to do. She became overwhelmed and broke down crying at the agency, and they sent her home. She is now seeing a psychologist, Mr Fallon, and she thinks she will be seeing him again on the Medicare scheme. She said she has tried several sessions of yoga, but this worsens her pain and she cannot concentrate. Bicycle exercises do not help. She said that her sessions with Dr Gallur were not helpful as her condition stayed the same. She said that acupuncture, which she tried several times, made her vomit and hydrotherapy did not help. She enjoys mostly being at home where she feels safe and less anxious.

    LUCIA D’ASCANIO

20. Lucia D’Ascanio gave oral evidence. She confirmed the details of her written statement.[3]

    [3] Exhibit 3, annexure 5

21. She told the Tribunal that her father has decreased his paid work significantly and is spending more time at home to look after Mrs D’Ascanio. She says the family has to motivate her, and her father plays a leading role in that regard.

22. Ms D’Ascanio said she sometimes accompanies her mother to sessions with Dr Gallur. She said she did not think her mother's condition has improved as a result of these sessions, rather that it has maintained.

23. Ms D’Ascanio was asked about her observations of her mother’s reaction to antidepressant medication. Ms D’Ascanio said that at times, the medication causes her mother to become nauseous and it disrupts her sleep. She said that changes to her mother’s medication causes Mrs D’Ascanio to experience severe side effects.

24. Ms D’Ascanio tried to enrol her mother in an online pain management program recommended by the clinic at Modbury Hospital, but the registration did not succeed. In effect they tried but could not access the program and they do not know the reasons for the that. She agreed that in theory a walking program is good for her mother, however that her mother cannot deal with unfamiliar places and other people. Her only familiar venue is the shopping centre. Ms D’Ascanio considered it was best for her to walk around there with a shopping trolley. She does not consider that her mother is obese.

    Impairment Tables

25. The Impairment Tables provide the mechanism by which to assign ratings for the level of functional impact of impairment.  They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

26. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment results from a condition that is more likely than not to persist for more than two years.

27. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

28. Both the Tribunal and the Federal Court have determined that there is a requirement to assess the  circumstances of a DSP applicant as they were, together with the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the assessment period may be considered, however, only insofar as it is preferable to an applicant’s condition during the assessment period.

29. It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[4] at [34]:

    “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”

    [4] [2012] AATA 922.

30. Those comments are particularly relevant to the present case given the lapse of time between lodging the DSP claim on 5 March 2019 and the hearing before this Tribunal on 20 November 2020. However, the task for the Tribunal is to assess Mrs D’Ascanio’s condition at the time of the DSP claim and the assessment period.

31. Accordingly, the applicable impairment rating, if any, for each of Mrs D’Ascanio’s conditions will be considered in turn by reference to the Impairment Tables.

    Medical evidence

32. Dr Kosmas is a general medical practitioner with interest in psychology and mental health. Mrs D’Ascanio was a patient of his colleague in 2013 and was referred to Dr Kosmas in 2017. Dr Kosmas he has also treated members of her family. The medical certificates, consultation notes, reports and correspondence of Dr Kosmas over several years were included in the documentary evidence. A certificate which Dr Kosmas compiled on 4 April 2017 noted two conditions, namely anxiety and depressed mood, with planned treatment described as GP counselling, psychology, and new anti-depressant medication; and lumbosacral disc disease and degeneration, with planned treatment comprising pain relief, physiotherapy and acupuncture.[5] Subsequent reports and notes had a focus on treatment and progress of those two primary conditions.

    [5] T53 p 257

33. Dr Kosmas gave evidence by telephone to the Tribunal. He said that the report he wrote on 18 October 2017 is still applicable. [6] In that report he wrote that the lower back pain was at times severe. He wrote that no further treatments could be offered at that time and the focus was on pain management. The report noted also that Mrs D’Ascanio suffers from anxiety which affects her daily life.  He considered that a referral to the Modbury Hospital pain rehabilitation clinic with a multidisciplinary approach might provide benefits for Mrs D’Ascanio. He considered that her back condition and her mental health issues affect one another. Strategies which she has attempted have not succeeded as she lacks the endurance and resilience to persist with them. For example, he has discussed a walking program with her, and suggested she walk with a family member due to her social anxiety. However, she cannot keep up with the pace of her family members and becomes frustrated. She is 153 cm in height and in November 2020 weighed 80.5 kg, and his medical advice is for Mrs D’Ascanio to reduce weight levels considerably.

    [6] T69 p 313

34. A lumbosacral CT scan report generated on 4 May 2017 concluded that Mrs D’Ascanio has “mild multilevel intervertebral disc and facet degeneration. No focal disc protrusion.” [7]

    [7] T55 p 259

35. Dr Kosmas referred Mrs D’Ascanio to Dr Bader, a specialist pain medicine physician. Dr Bader wrote three reports dated 5 December 2018[8], 6 February 2019[9] and 3 April 2019[10] respectively, following the attendance of Mrs D’Ascanio at the pain clinic for assessment and treatment regarding non-specific lower back pain. At the time of the first report, Dr Bader’s advice to Mrs D’Ascanio was to refer to a community psychologist for management of her depression, to trial an anti-depressant, to be weaned off pain medication within six months, participate in exercises prescribed by a physiotherapist, endeavour to achieve weight loss and attend for further review in three months.[11]

    [8] T80

    [9] T20

    [10] T28

    [11] T80 p 333

36. On 24 January 2019 Dr Kosmas wrote to Dr Bader and stated: 

    “Thank you for seeing Mrs Anna D’Ascanio for further advice about pain management. We have stopped the Tramadol and commenced Cymbalta for her depression and hopefully there will be a secondary analgesic benefit. We discussed the options of Palexia and Norspan patches however Anna needs to drive her daughter to TAFE every day. Her daughter studies nursing and does not have a driving license and is unable to use public transport for medical reasons. The potential effect on driving has meant that we have not trialled this opiate medication.”[12]

    [12] T19 p 141

37. By the time of the second report dated 6 February 2019, Dr Bader noted that Mrs D’Ascanio had decided not to follow up with a recommended physiotherapist as it was her preference to attend a clinic closer to her home. She had also declined to see a psychologist. Mrs D’Ascanio had informed Dr Bader that changes were being made to her medication. Despite discussing a Group Pain Management Program with Mrs D’Ascanio, Dr Bader wrote Mrs D’Ascanio did not think she could attend due to her social anxiety, and they had discussed a potential alternative being an online program, with further discussion about consulting a physiotherapist and participating in a walking program. Dr Bader arranged for Mrs D’Ascanio to see a psychiatrist for an opinion about antidepressants and depression management, because in her view, “her unmanaged depression remains her biggest stumbling block in engaging in active management strategies.”[13]

    [13] T20 p142

38. In her third and final report on 3 April 2019, Dr Bader summarised the results of her most recent appointment with Mrs D’Ascanio. She noted continuing issues including side-effects from medication, the desirability of participating in an online pain program, the need to address problems with weight in an effort to reduce the level of lower back pain, and the need to organise follow-up appointments with a psychiatrist, Dr Gallur. Further review was recommended in 4 months’ time.[14]

    [14] T28

39. Dr Bader’s first and second reports followed consultations which took place shortly before the assessment period. The third report was written during the assessment period and reflects her opinion at that time.

40. On 5 March 2019 Dr Kosmas wrote that both the conditions of depression and chronic back pain were fully diagnosed, stable and treated “to the full extent of our ability.”[15] That view was reiterated in subsequent reports which Dr Kosmas wrote.[16]

    [15] T24 p 148

    [16] T41 p 194; T42 p 195

1. Ms Jolly, a psychologist, conducted six sessions with Mrs D’Ascanio under the Medicare better access to mental health program. The objectives of the sessions were to assist her to manage her depression which Ms Jolly noted as a sequel to the degenerative back condition. Ms Jolly recommended after those sessions that Mrs D’Ascanio engage with a pain management clinic. Ms Jolly wrote to Dr Kosmos to that effect. She recorded the Mrs D’Ascanio found the psychology sessions helpful in terms of motivation, however it was preferable to discontinue those sessions at that time.[17]

   [17] T76 p 323

2. Dr Gallur is a senior medical practitioner in psychiatry. She wrote a report on 19 March 2019[18] at a time shortly after the DSP claim was lodged. Recommendations were made which included components of therapy, lifestyle and nutrition management, changes to medication and review within one month.

   [18] T25 p 151

3. On 16 May 2019, shortly before the expiration of the assessment period, Dr Gallur reported that Mrs D’Ascanio had cancelled two recent appointments. It appears that a telephone call which Dr Gallur initiated led to the provision of further information which enabled Dr Gallur to conclude that the depressive symptoms, including neurovegetative disturbance and the impairment in concentration were continuing. As Mrs D’Ascanio expressed a reluctance to consider options such as psychotherapy, Dr Gallur’s opinion was in favour of “more robust and antidepressant treatment in the first instance.” Dr Gallur’s recommendations included specific suggestions about changes to medication and she recommended a review in one month [19].

   [19] T30 p 158

4. Following this, Dr Gallur reported on 27 June 2019 that treatment was continuing, and recommended changes in medication together with further review to assess responses to the changes in medication.[20] This report was after the assessment period. A subsequent consultation with Dr Gallur occurred on 26 July 2019 which led to further recommendations for an increase in medication while noting that there had been be a sustained and partial improvement in her mental state. The aim was to sustain the improvement by optimising the dose of the medication with the aim of getting Mrs D’Ascanio to participate in a rehabilitation program.[21]

   [20] T32 p 161

   [21] T35 p 175

5. Dr Kosmas noted that Mrs D’Ascanio had considered electroconvulsive therapy and rejected it as an option. He said he considered the potential risks of harm such as memory impairment outweigh its potential benefit.[22] Dr Kosmas has specialised interests in mental health and counselling and he confirmed that his treatment of Mrs D’Ascanio included supportive counselling, cognitive therapy and monitoring and advice about medication. In a report written on 30 June 2020, Dr Kosmas outlined:

   “During the past 12 months, I have noticed a gradual decline of (Mrs D’Ascanio’s) mental health state with increasing anxiety, depression, impaired short-term memory and ability to make decisions, emotional lability and sleep impairment. These symptoms have been resistant to multiple attempts at providing antidepressant therapy. While there has been some initial partial improvement with the antidepressant agent Cymbalta we have been unable to progress past the starting dose of 30 mg daily due to severe side effects of nausea, tiredness and headaches.(Mrs D’Ascanio) has demonstrated sensitivity to medication in general and thus I have focused on lifestyle measures for management of her depression and other medical conditions where appropriate.” [23]

   [22] T41 p 194

   [23] Exhibit 3, annexure 4

6. Whilst Dr Kosmas considered that her condition was fully treated and stabilised he also considered that the most appropriate way forward for Mrs D’Ascanio comprises “regular psychology visits, regular GP counselling and a low stress environment where she can be effectively cared for by her husband.” [24]

   [24] Exhibit 3, annexure 4

7. Mr Fallo is a clinical psychologist. Mrs D’Ascanio was referred to him in February 2020, approximately seven months after the end of the assessment period. Seven sessions of therapy followed which Mr Fallo summarised in a report which he wrote on 18 June 2020.[25] He considered that Mrs D’Ascanio meets the DSM-5 criteria for major depressive disorder, panic disorder and somatic symptom disorder. He considered her condition to be stable and fully treated. He described that during the four months of his treatment she made no significant improvements and he did not expect improvements in the foreseeable future. He observed that “chronic pain, low energy levels and loss of enjoyment remain barriers to improvement. Autogenic training and all mindfulness exercises were not grasped due to low psychological – mindedness and a lack of curiosity about mental life.” He wrote that her impairments warrant a rating of 20 points under impairment table 5 and she has a demonstrated inability to work. He supports her application for the DSP.

   [25] Exhibit 5

   CONSIDERATION

8. A job capacity assessment report[26] (JCAR) dated 8 November 2019 included a comprehensive analysis of the medical reports, in particular those most recently written in 2018 and 2019 by Dr Kosmas, Dr Bader and Dr Gallur. The report concluded that the condition of chronic back pain was fully diagnosed, however it was not considered to be fully treated and stabilised. In support of that conclusion, the report stated that Mrs D’Ascanio had participated only in minimal pain management despite current referrals in place for her to participate in an online pain program and to attend occupational therapy appointments. Similarly, in relation to the condition of depression, the report concluded it was fully diagnosed but, in accordance with the comments by Dr Gallur, and noting changing treatment and reviews, the condition was not considered to be fully treated and stabilised.

   [26] T39 p 180

9. For a condition to be fully treated and fully stabilised for the purposes of the Impairment Tables, the Tribunal must apply the criteria in section 6(5) and (6).

10. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years. 

11. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years. 

12. In Re Fanning and Secretary, Department of Social Services,[27] the Tribunal comprising Deputy President Handley stated that:

    “The language in clauses 6(5) and 6(6) …is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.”[28]

    [27] [2014] AATA 447.

    [28] Ibid, at 33

    Back condition – whether the condition was fully diagnosed, treated and stabilised

13. Dr Bader’s impression in December 2018, not long before the DSP claim, was that Mrs D’Ascanio has “non-specific lower back pain with no evidence of neuropathy. She has significant depression and social anxiety that is limiting her ability to engage in active pain management strategies at present. Her sedentary lifestyle and reduced physical exercise tolerance perpetuating factors for her pain.”[29]

    [29] T80 p 333

14. Dr Bader made various recommendations in her final report dated 3 April 2019 as part of her professional advice for further treatment, as summarised previously in this decision. In particular, Dr Bader planned a review of Mrs D’Ascanio some four months later, around July or August 2019, which is after the assessment period. One portion of the advice was for Mrs D’Ascanio to participate in an online claim management program and while there may be a sound reason why she did not, it remains that there were other strategies which Dr Bader considered appropriate in a lead up to further assessment and review. One of those strategies was intertwined with the psychiatric review by Dr Gallur which was still pending at that time as well.

15. Dr Kosmas, with considerable diligence and professional concern for his patient, considered that she was fully treated and stabilised during the assessment period. His view must also be seen in the context of his comment that that treatment was completed to the full extent of the practitioner’s ability and the patient’s condition could be assessed as stable. Nonetheless the treatment was in fact continuing and it included treatment by Dr Kosmas himself and assessments by the hospital pain clinic

16. In accordance with Dr Bader’s reports, as already summarised, the Tribunal considers that the specialist pain management and associated medical treatment was not complete during the assessment period with further review and recommendations to come. In those circumstances the Tribunal is satisfied that at the time of the DSP claim there was a diagnosis of Mrs D’Ascanio’s back condition.  However, the condition was not fully treated, and it was not fully stabilised.  In those circumstances, an impairment rating cannot be given.

    Mental health condition - whether the condition was fully diagnosed, treated and stabilised

17. Impairment Table 5 provides the descriptors relating to functional impairment due to a mental health condition, which includes recurrent episodes of mental health impairment.  The introduction to Table 5 also indicates that the signs and symptoms of mental health impairment can vary over time and for mental health conditions that are episodic, the rating that best reflects the persons overall functional ability is appropriate.  It is necessary to have regard to the severity, duration and frequency of the episodes or fluctuations.

18. Impairment Table 5 specifies 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).

19. The psychiatrist, Dr Gallur, provided a diagnosis of a major depressive disorder in her report on 12 February 2019[30], namely that Mrs D’Ascanio has “a major depressive disorder (without psychotic or melancholic features) with the more recent emergence of some anxiety symptoms including panic attacks, fear avoidance and worry. Given her sense of self she does tend to perceive her pain and mood as being outside of her control and uses passive strategies such as resting and waiting for it to pass when it flares.”[31]

    [30] T21 p 144

    [31] Ibid

20. The reports which Dr Gallur wrote between 12 February 2019 and 26 July 2019, as summarised above, indicate that psychiatric assessment, treatment and review were continuing throughout the assessment period and thereafter. The assessments included reviews and changes in pharmacological treatment during that time. The Tribunal is satisfied the treatment for Mrs D’Ascanio’s mental health condition was underway and incomplete during the assessment period. The report in June 2020 from the clinical psychologist Mr Fallo refers to psychological treatment which he commenced following referral by Dr Kosmas in February 2020, and does not provide support for the proposition that the mental health condition was fully treated and stabilised a year and more earlier during the assessment period.

21. Accordingly the Tribunal finds that at the time of the DSP claim Mrs D’Ascanio’s mental health condition was diagnosed. However it was not fully treated and not fully diagnosed and therefore an impairment rating cannot be assigned

    SUMMARY

22. The Tribunal finds that s 94(1)(a) of the Act regarding impairment is satisfied.

23. As outlined, the Tribunal finds that Mrs D’Ascanio’s mental health condition was diagnosed but not fully treated and fully stabilised during the qualification period.  A rating under the Impairment Tables cannot be given.

24. Mrs D’Ascanio’s back condition was diagnosed, however it was not fully treated and stabilised during the qualification period and no rating can be assigned in respect of it.

25. With a total of 0 impairment points, Mrs D’Ascanio does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore, she does not satisfy s 94(1)(b) of the Act.

26. In those circumstances, it is not necessary to consider whether during the qualification period the applicant had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

27. As the applicant did not qualify for DSP at the time she lodged the claim, or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

    DECISION

28. For the reasons set out above, the Tribunal affirms the decision under review.

69.     I certify that the preceding 68 (sixty eight) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.

   ……………[Sgnd]……………………

  Administrative Assistant Legal

 Dated: 9 April 2021

Date of hearing:	20 November 2021
Advocate for the Applicant:	Ms Margaret Riley
Advocate for the Respondent:	Mr Alex Chan, SPARKE HELMORE