Rychtowski and Secretary, Department of Social Services (Social services second review) - [2021] AATA 1346

Rychtowski and Secretary, Department of Social Services (Social services second review) [2021] AATA 1346 (14 May 2021)
Division:GENERAL DIVISION
File Number(s): 2020/6974
Re:Tania Rychtowski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:14 May 2021
Place:Sydney

The decision under review is affirmed.
...............................[sgd].........................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – rejection of disability support pension claim – whether the Applicant qualified for disability support pension – trigeminal neuralgia – whether the Applicant had a physical, intellectual or psychiatric impairment under s 94(1)(a) –– whether impairment was of 20 points or more under s 94(1)(b) – whether Applicant had continuing inability to work under s 94(1)(c) – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Lucas and Secretary, Department of Social Services (Social services second review) [2018] AATA 2563
Michaelides and Secretary, Department of Social Services [2021] AATA 245
Newman and Secretary to the Department of Families and Community Services [2002] AATA 917
Smalldon and Secretary, Department of Social Services [2015] AATA 2
Smalldon and Secretary, Department of Social Services (Social services second review) [2015] AATA 575
SECONDARY MATERIALS
Healthline.com, Pregablin, Oral Capsule (9 March 2021): Clinic, Trigeminal neuralgia: Institute of Neurological Disorders and Stroke, Trigeminal Neuralgia Fact Sheet: Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Tamworth Rural Referral Hospital – Pain Management Clinic: Neuralgia Association of Australia:
Trigeminal Neuralgia – American Association of Neurological Surgeons: FOR DECISION
Chris Puplick AM, Senior Member
14 May 2021

Ms Tania Rychtowski (the Applicant) is seeking a review of a decision made on 28 October 2020 by the Social Services and Child Support Division of this Tribunal (AAT1) which in turn had affirmed a decision by a delegate of the Secretary (the Respondent) to refuse her application for the Disability Support Pension (DSP).
The Applicant first lodged her application with the Department of Social Services (the Department) on 22 November 2018, but it was rejected. The Applicant then provided further evidence for consideration and the initial refusal decision was reconsidered by an Authorised Review Officer (ARO) of the Department. On 17 August 2020 the ARO confirmed the rejection decision and the matter was then appealed to the AAT1 by the Applicant on 31 August 2020.
The hearing of the review of the AAT1 decision was held on 28 April 2021 using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols.
The basis of the decision by both the ARO and the AAT1 was that the Applicant does not meet the requirements of subsection 94(1) of the Social Security Act 1991 (Cth) (the Act) in that she does not have the degree of impairment which is required to qualify for the DSP as measured against the Impairment Tables[1] used for such assessments.
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) made under section 26 of the Act (Impairment Tables).
THE DSP SCHEME
In order to qualify for DSP an applicant must fulfil certain criteria which are set out in section 94 of the Act which has three distinct limbs:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
In essence, these three requirements or criteria amount to this:
·the person has a physical, intellectual or psychiatric condition;
·the person’s medical condition(s) rates 20 points or more on the Impairment Tables. Points may be accumulated for a variety or number of conditions or, in certain circumstances, awarded directly for one condition of particular severity;
·the person has a continuing inability to work or the Secretary is satisfied that the person is participating in a program known as the supported wage system.
In addition, there must be evidence that:
·the person has turned 16; and
·the person is an eligible citizen or qualifying resident.
Failure to meet any one of these requirements is fatal to a claim for DSP and the Tribunal has neither the power nor the authority to disregard any such failure.
In assessing the points to assign to impairments, the condition (however defined) giving rise to the impairment must be:
·fully diagnosed and documented;
·fully treated; and
·fully stabilised.
These important terms are defined in the Impairment Tables[2] as follows:
[2] Impairment Tables s 6.
...
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’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.
Permanency of conditions
(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(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.
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Each of these criteria must be met before any points on the Impairment Tables can be considered or awarded.
A “continuing inability to work” is defined in subsection 94(2) of the Act. In effect, it means that the impairment prevents the person from:
(a) …doing any work independently of a program of support within the next 2 years; and
(b) …either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
It is against this legislative background that the Tribunal must consider each application coming before it, taking into account the particular circumstances and facts of each case, but making sure that the rules are applied equally to each case.
There are two further aspects of the scheme which need to be noted. In the first place, the Social Security (Administration) Act 1999 (Cth) provides that the assessment of an applicant’s conditions must be an assessment of their impairment status within a period which runs for 13 weeks from the date on which they lodged their application. In this instance that “qualifying period” would run from 22 November 2018 to 21 February 2019.
As a result, changes in an applicant’s condition (especially any deterioration of the condition) which take place after the qualifying date cannot be taken into account, although they may form the basis of a subsequent application.[3] Equally, any medical evidence submitted after the qualifying period can only be considered to the extent to which they refer to the applicant’s condition during that period.[4]
[3] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].
[4] Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
The second matter is that the Impairment Table related to assessment of mental health conditions requires that diagnoses 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.”[5] In many instances this serves to disqualify applications where the mental health diagnosis is not made by such a “suitably qualified practitioner” such as a General Practitioner without relevant specialist qualifications.
[5] Impairment Tables, Table 5 – Mental Health Function, Introduction to Table 5.
THE CONDITIONS IN QUESTION
The Applicant claims:
I suffer from left-sided trigeminal neuralgia (TN). TN is a chronic, degenerative and debilitating pain condition which triggers random jolts of excruciating pain and is considered to be one of the most painful conditions known to mankind. Severe pain attacks and flare-ups can last from minutes to hours, days, weeks, even months without relief. It was formerly known as ‘the suicide disease’.[6]
[6] Applicant’s Letter in Support of DSP Review Appeal (15 October 2020).
There is also evidence before the Tribunal which suggests that the Applicant suffers from depression and anxiety brought on by her condition of TN; that this condition also affects her ability to speak (communicate) because of its impact on her jaws and that finally this condition also impairs her powers of concentration and memory.
Each of these claimed impairments must be considered separately to determine whether, in the first instance, they are fully diagnosed, treated and stabilised and secondly, if they are, what impairment rating (if any) should be assigned to them on the relevant Impairment Table.
Prior to proceeding to consider each claimed condition, an applicant for DSP is required to meet the threshold established in paragraph 94(1)(a) of the Act – namely, do they have a physical, intellectual or psychiatric impairment. There is agreement between the parties that the Applicant has been diagnosed with and suffers from TN and hence this condition is satisfied.[7]
[7] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [40].
Trigeminal Neuralgia (TN)
The American Association of Neurological Surgeons describes TN as follows:
TN tends to run in cycles. Patients often suffer long stretches of frequent attacks, followed by weeks, months or even years of little or no pain. The usual pattern, however, is for the attacks to intensify over time with shorter pain-free periods. Some patients suffer less than one attack a day, while others experience a dozen or more every hour. The pain typically begins with a sensation of electrical shocks that culminates in an excruciating stabbing pain within less than 20 seconds. The pain often leaves patients with uncontrollable facial twitching, which is why the disorder is also known as tic douloureux.
Pain can be focused in one spot or it can spread throughout the face. Typically, it is only on one side of the face; however, in rare occasions and sometimes when associated with multiple sclerosis, patients may feel pain in both sides of their face. Pain areas include the cheeks, jaw, teeth, gums, lips, eyes and forehead.[8]
[8] Trigeminal Neuralgia – American Association of Neurological Surgeons: >
The condition is most commonly diagnosed in people over the age of 50 and appears to be twice as common in women as in men.[9]
[9] Ibid.
There are in fact two forms of TN referred to as TN1 and TN2 depending on the severity and presentation of the associated pain and, according to the National Institute of Neurological Disorders and Stroke, “[t]he intensity of pain can be physically and mentally incapacitating.”[10]
[10] National Institute of Neurological Disorders and Stroke, Trigeminal Neuralgia Fact Sheet: >
There are a variety of treatment approaches which include the use of anti-convulsive medications, surgery and neuromodulation. Some reference is also made to complementary therapies such as yoga, meditation, chiropathy, acupuncture and vitamin/nutritional therapy.
The range of available anticonvulsive drugs is extensive, including carbamazepine[11], phenytoin, baclofen, gabapentin and amitriptyline, all of which have been tried by the Applicant without any degree of success and some of which produced side-effects. The Applicant is currently on a regime involving pregabalin (Lyrica).[12]
[11] Referred to as “the first drug of choice” by the Trigeminal Neuralgia Association of Australia: Surgical records of Dr Russell D’Cunha, Tribunal documents (T-documents) at 121.
The American Association of Neurological Surgeons notes that:
[t]here are drawbacks to these medications, other than side effects. Some patients may need relatively high doses to alleviate the pain, and the side effects can become more pronounced at higher doses. Anticonvulsant drugs may lose their effectiveness over time. Some patients may need a higher dose to reduce the pain or a second anticonvulsant, which can lead to adverse drug reactions. Many of these drugs can have a toxic effect on some patients, particularly people with a history of bone marrow suppression and kidney and liver toxicity. These patients must have their blood monitored to ensure their safety.[13]
[13] Above n 8.
There are also a variety of surgical interventions possible including microvascular decompression, stereotactic radiosurgery or rhizotomy (encompassing options of balloon compression, glycerol injection and radiofrequency thermal lesioning) as well as neurectomy.[14]
[14] Mayo Clinic, Trigeminal neuralgia: >
Neuromodulation involving the placement of one or more electrodes at designated sites and deep brain stimulation are also used as treatments for TN.[15]
[15] Above n 8.
Assessment of the trigeminal neuralgia condition
It is the Respondent’s contention that while the Applicant’s condition of TN was fully diagnosed during the qualifying period, it was not fully treated and stabilised.[16]
[16] Respondent’s SFIC at [42] – [43].
This is at odds with the report of the Job Capacity Assessor (JCA). In a report dated 24 September 2019 the JCA originally assessed the Applicant as rating nil points on any of the Impairment Tables,[17] largely due to lack of information to corroborate the Applicant’s own self-reporting. However, after an initial assessment there was a reconsideration of new or additional evidence. This led the JCA to conclude that the condition of TN was fully diagnosed, treated and stabilised and, as a result impairment ratings were assigned as follows for a total of 25 points: Table 1 – Functions requiring Physical Exertion and Stamina – 10 points; Table 7 – Brain Function – 10 points and Table 8 – Communication Function – 5 points.[18]
[17] T-documents at 191-192.
[18] Ibid at 197.
The Respondent rejects the JCA assessment and asserts that the TN condition, while fully diagnosed is not (and was not in the qualifying period) fully treated and stabilised.
In the first instance the Respondent is critical of the Applicant for demonstrating some reluctance to “trial other neuropathic pain medication”.[19] This is hardly surprising given that she has already been through some half-a-dozen different drugs and suffered both side-effects and at one stage fear of developing Stephens-Johnson syndrome.[20]
[19] Respondent’s SFIC at [45].
[20] Report of St Shamim Uzzman (15 April 2013), T-documents at 108. Stevens-Johnson syndrome is a form of toxic epidermal necrolysis presenting initially as a rash in the skin and mucous membranes.
The Tribunal does not accept that it is a fair basis for criticism of the Applicant to want to draw a line at repeated changes in medication when she has suffered side-effects and other concerns about the medication and has settled on one regime (Lyrica) which seems to be tolerable and to some degree effective.
The Respondent is critical of the Applicant’s claims on the basis that she “[h]ad not received specialist treatment prior to the qualification period” and had not received any continuing treatment from the specialists she saw in April 2013 and August 2019 prior to that period.[21] The Tribunal is not persuaded that this is fatal to finding that the Applicant’s condition is fully treated when the treatment she received during the qualifying period is taken into account.
[21] Respondent’s SFIC at [44].
In relation to surgery the Tribunal notes that the advice of the American Association of Neurological Surgeons is to the effect that it should be considered once it has been established that there is “pressure on the trigeminal nerve from a nearby blood vessel which can be diagnosed with imaging of the brain, such as a special MRI”.[22]
[22] Above n 8.
It is the evidence of Dr David Healey that:
“Ms Rychtowski has had at least 2 x MRI scans of the brain, to assess if there was any demyelination seen almond the trigeminal nerve, or compression of the nerve. Ms Rychtowski understands that neither feature was found. Thus, she was not a surgical candidate for this condition.”[23]
[23] Letter from Dr Healey (22 January 2021) at [5].
The Tribunal notes that a request for an MRI was arranged via Dr Melinda Pascoe (a specialist neurologist) in December 2018, but the Respondent challenges whether or not this was undertaken and in any event notes the absence of any resulting report in the documentation before the Tribunal.[24]
[24] Respondent’s SFIC at [47]. At the hearing the Respondent noted that this was an oversight in their submission as such a report was before the Tribunal.
On the other hand, Dr Healey’s report refers to advice about the outcome of the MRI being provided by Dr Pascoe to the Applicant[25] and indeed such a report is before the Tribunal dated 19 August 2014.[26] It confirms the fact that no MRI-based assessment supported the option of surgical intervention.
[25] Letter from Dr Healey (22 January 2021) at [7].
[26] T-documents at 114.

It is clear that the Applicant herself has considered the surgical options and has advanced a good case for not wanting to embark on that cause of action.[27] She is more than entitled to make that choice and her decision in this matter is to be respected.
[27] Applicant’s Letter in Support of DSP Review Appeal (15 October 2020).
A more serious concern raised by the Respondent is the Applicant’s failure to attend any formal pain management clinic or to have a developed regime of pain management arranged by a relevant specialist. The Australian Government’s healthdirect[28] website indicates that a pain management clinic operates at the Tamworth Rural referral Hospital which is located some two-and-a-half hours from the Applicant’s home.
[28] Tamworth Rural Referral Hospital – Pain Management Clinic: >
The Respondent draws attention to the decision of the Tribunal in Smalldon and Secretary, Department of Social Services where the Tribunal, in upholding decision by an Authorised Review Officer (ARO) of the Department stated:
As all Ms Smalldon’s impairments relate to pain, or the effects of that pain, I consider it inappropriate to regard any of her conditions as permanent until she has at least completed a course of pain management at a recognised pain clinic. It is usual for pain management clinics to address the very problems Ms Smalldon complains of, and to help chronic pain suffers cope with the pain and the effects of chronic pain.[29]
[29] [2015] AATA 2 at [16].
However, the Respondent equally failed to draw to attention that this same ARO decision was reviewed, as a social services second review, and set aside with the matter remitted to the Department with a finding by Senior Member McCabe (as he then was) to the effect that:
I am ultimately satisfied from Dr Ng’s report dated 18 June 2014 (exhibit 3) that pain management is not likely to yield significant benefit to Ms Smalldon. Ms Smalldon is being optimally treated and was being optimally treated during the relevant period.[30]
[30] Smalldon and Secretary, Department of Social Services (Social services second review) [2015] AATA 575 at [7].
Other Tribunal decisions have referred to the question of the role of formal pain management programmes as part of a treatment regime,[31] however the Tribunal must consider the individual circumstances of each case and in some this course of treatment will be more indicated than others. The recommendations made to this Applicant do not prescribe such a course of treatment but refer rather to “[p]sychological counselling for distraction as part of pain management.”[32]
[31] Lucas and Secretary, Department of Social Services (Social services second review) [2018] AATA 2563 at [51]; Michaelides and Secretary, Department of Social Services [2021] AATA 245 at [49]; Newman and Secretary to the Department of Families and Community Services [2002] AATA 917 at [32].
[32] T-documents at 166.
In his letter of 22 January 2021 Dr Healey writes, in relation to the question: “Any further investigations or referrals yet to be undertaken?”:
“No. Ms Rychtowski has exhausted all avenues that neurologists could have provided for… There have been no new advances in the management of trigeminal neuralgia since that time [i.e. 2013/2014], so a further neurological referral was unlikely to be beneficial.”
The Tribunal acknowledges that Dr Healey’s report post-dates the qualification period, but it nevertheless can be accepted as providing information which was relevant to that period.
At no stage did any of the Applicant’s treating physicians recommend referral to a pain management clinic. The Tribunal notes that none of the websites of the Trigeminal Neuralgia Association of Australia, the US National Institute of Neurological Disorders and Stroke, American Association of Neurological Surgeons or The Mayo Clinic specify engagement with a pain management clinic as a front-line treatment option.
It was the Applicant’s evidence that she had given some consideration to accessing a pain management clinic, but having found that the nearest one was at Tamworth (and expressing some concerns that pain management was not necessarily an appropriate response to TN) had not sought to undertake the pressures of travel which would have been involved in her accessing the service.
The Respondent drew attention to the Guidelines for the Pharmacological Treatment of Neuropathic Pain (2017) issued by the Western Australian Therapeutic Advisory Group. This sets out guidelines for the treatment of TN as follows:

First-line

Carbamazepine
• Should be started at low dose and titrated according to effect/adverse effects in a range of 200-1200 mg
• Has several adverse effects, but is highly effective
• Enzyme inducer; may interact with other drugs

Second-line

Procedural pain management, neurosurgery or radiosurgery (gamma knife)

Third-line (if surgery is

contraindicated)

Pregabalin / gabapentin

Baclofen

Clonazepam
Baclofen may be used as add-on therapy with carbamazepine
For each medication, commence at a low dose twice daily and increase every 3 days according to effect/adverse effects

The evidence before the Tribunal is that, in relation to the Applicant, she has been on a course of carbamazepine (more than once) and found it unhelpful; she is currently finding some effective relief from pregabalin (Lyrica); she has tried treatment with baclofen which she found aggravated her condition and made her feel worse; that surgery is not indicated on the basis of MRI evidence and that “procedural” pain management is being undertaken by way of meditation, massages, diet management, alternate therapies and resort to use of the “Curable” app. The Applicant’s management of her condition appears to comport well with the WA Guidelines.
The Tribunal notes that there is no specific table in the 2011 determination which refers to pain as a separate condition for impairment assessment. Prior to the 2011 amendments, impairment assessments were made using tables which appeared as Schedule 1B to the Act which contained, at Table 20 a specific set of criteria related to “chronic fatigue or pain”. As this is no longer the case, issues of pain must be assessed within one of the 2011 tables and not as a separate consideration.
In addition to the report of Dr Healey, the Tribunal has before it several reports from Dr D’Cunha, the Applicant’s principal treating physician (4 September 2018, 15 February 2019, 3 September 2019). There are reports from Dr Presgrave, a neurologist (15 April 2013); Dr Johansson, a chiropractor (23 July 2014); and Dr Pascoe, also a neurologist (28 December 2018) all of which report on various aspects of the Applicant’s treatment. Again, some fall outside the qualifying period and each must be read in a way which links their comments and reports to that period (22 November 2018 to 21 February 2019).
The Respondent makes much of the fact that the Applicant only saw one specialist prior to or during the qualifying period[33] but rather thereafter relied on her general practitioner(s) for treatment. There is no reason to believe that this was not necessarily effective and appropriate treatment for the Applicant.
[33] Respondent’s SFIC at [54].
Upon consideration of all of these, the Tribunal finds that the Applicant’s condition of trigeminal neuralgia was, during the qualifying period, fully diagnosed, treated and stabilised.
IMPAIRMENT RATINGS: TRIGEMINAL NEURALGIA AND RELATED CONDITIONS
There then arises a question as to which of the Impairment Tables should be used in order to assess the degree of impairment arising from this condition and associated manifestations. There are two obvious candidates: Table 1 – Functions requiring physical exertion and stamina and Table 7 – Brain function.
The Tribunal accepts the Respondent’s argument that Table 7 should not be used.[34] This table is to be used only “where a person has a permanent condition resulting in functional impairment related to neurological or cognitive function”. Although there is evidence that the Applicant sometimes suffers problems related to “difficulty holding a conversation”; “inability to concentrate/brain-fog, headaches” and “blurred vision, poor sleep”[35] these are primarily self-reported syndromes (deemed “insufficient” under Table 7 for consideration) and are more likely to be the transitory result of the Applicant’s medication[36] rather than a resultant cognitive impairment arising from TN.
[34] Respondent’s SFIC at [72]-[76].
[35] Applicant’s Letter in Support of DSP Review Appeal (15 October 2020).
[36] Healthline.com, Pregablin, Oral Capsule (9 March 2021):

Table 1 – Functions requiring Physical Exertion and Stamina
The assessment of the Applicant’s level of impairment must therefore be against the criteria in Table 1. The evidence before the Tribunal does not support a finding that the Applicant’s level of impairment reaches a stage of being “severe” which would, in itself establish a 20-point assessment of impairment. Rather, the decision lies between an assessment of mild (5-point) and moderate (10-point) functional impairment. The Table provides:

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)         The person:

(a)         experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)          walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)          performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)         is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)         The person:

(a)         experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)          is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)          has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)         is able to:

(i)          use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)          perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).

At the Tribunal hearing, the Respondent’s representative took the Applicant through a narrative of her daily routines and her capacity to undertake matters such as limited shopping, some driving, general maintenance of her home surroundings, dressing herself and undertaking some laundry duties. The Applicant agreed that she could manage these, albeit, in each instance, with a degree of discomfort and pain attendant. She expressed particular difficulty in relation to matters such as brushing her teeth, cooking (other than to defrost frozen meals in the microwave) and undertaking anything that required more than a minimal degree of physical effort.
Consideration of the totality of her evidence would suggest that the Applicant meets the criteria set out in item 1(a)(ii) of the 10-point table and the Tribunal so finds. It assigns the Applicant 10 points on Table 1.
Table 8 – Communication Function
Reports from Dr D’Cunha indicate that, as a result of her TN the Applicant has experienced bouts of “involuntary contractions of her left jaw, making speech difficult.”[37] He also describes this condition as “chronic” although without giving further details.[38]
[37] T-documents at 167.
[38] Ibid at 121.
In her evidence to the Tribunal the Applicant elaborated on this stating that when the pain is particularly severe she is unable to move her jaws without so much discomfort that she is effectively rendered incapable of talking. As a naturally sociable and communicative individual she finds this particularly burdensome.
This brings into consideration whether or not the Applicant qualifies for an impairment rating on Table 8 – Communications Function. The relevant part of that Table provides:

5

There is a mild functional impact on communication in the person’s main language.

(1)         At least one of the following applies:

(a)         the person has some difficulty understanding complex words and long sentences (e.g. a complex newspaper article); or

(b)         the person has mild difficulty in producing speech and has minor difficulty with being understood due to speech production or content.

10

There is a moderate functional impact on communication in the person’s main language.

(1)         At least one of the following applies:

(a)         the person;

(i)          has some difficulty understanding day to day language, particularly where a sentence or instruction includes multiple steps or concepts (e.g. ‘Please take this book out to Jane at the front desk and ask her to give you some paper clips and bring them back in here’); or

(ii)          may need instructions repeated or broken down into shorter sentences; or

(b)         the person has moderate difficulty in producing speech (e.g. a stutter or stammer), difficulty coordinating speech movements or damage to speech structures (e.g. vocal cords, larynx) which makes speech effortful, slow or sometimes difficult for strangers to understand; or

(c)          the person uses alternative or augmentative communication (e.g. sign language, technology that produces electronic speech, use of symbols to communicate) and is unable to speak clearly and may be partially

reliant on a recognised sign language (e.g. Auslan or signed English) or other non-verbal communication methods.

It would appear that the Applicant meets the criteria at item 1(b) of the 5-point table as a result of her TN but there is no evidence that she reaches the level of impairment set out at the 10-point level.
The Tribunal finds that the Applicant rates 5 points on Table 8.
Table 5 – Mental Health Function
A further question was raised about the more general state of the Applicant’s mental health. There is evidence from both Dr D’Cunha and from Dr Wei Wang that the Applicant suffers from depression and anxiety as a direct result of her having to manage with TN.[39] Dr Wang is a psychologist and Member of the Australian Psychological Society and Dr D’Cunha is a General Practitioner. Unfortunately for the Applicant, for any impairment to be considered on Table 5 – Mental Health Function a diagnosis is required from a psychiatrist or a clinical psychologist. As neither so qualifies consideration of this matter cannot be advanced further.
[39] Letter of Dr Wang (8 October 2020), T-documents at 214-215.
Equally unfortunately, it was the Applicant’s evidence that she had in fact participated in 5 or 6 sessions with a clinical psychologist (Ms Ward) in Inverell but had found these sessions distressing and had ceased attendance at them. Hence no corroborative evidence in relation to a mental health diagnosis was available to the Tribunal to remedy the defect of the other evidence.
As a result, no rating can be given in relation to Table 5.
CONCLUSIONS
As a result of the Tribunal’s findings that the Applicant’s impairment rating is at the level of 15-points and thus below the 20-point qualifying threshold there is no need for the Tribunal to give further consideration to the third limb of section 94, namely the continuing inability to work test (paragraph 94 (1)(c)).
In the Respondent’s SFIC the Applicant’s status in this regard is examined “for completeness” and it is concluded that even were the Applicant to qualify at a level of 20-points, she would be ineligible for the DSP because of her failure to meet subparagraph 94(1)(c)(i) requirements.[40] The Tribunal has no evidence before it which would cause it to disagree with this assessment.
[40] Respondent’s SFIC at [84]-[103].
The Tribunal understands that this is a disappointing conclusion for the Applicant who, without doubt, suffers significant disadvantage from her condition of TN. She is in constant pain and it appears that she receives only minor relief from her current medication. The quality of her life is severely impacted and resultantly, an intelligent woman who wishes to work and who, prior to the onset of this ailment in December 2012, led an active and fulfilling social life finds her daily existence severely compromised.
It may well be that if the Applicant made a further DSP claim as she is entitled to do, and if she provided some appropriate evidence from a qualified practitioner which would allow assessment of her mental health conditions, then there might be some different outcome in terms of her impairment rating. That would be no more than speculation on the part of the Tribunal and would be a matter to be determined at another time and place. Even if the impairment rating were different, there would remain the unaddressed issues of the continuing inability to work requirements of the Act.
The Tribunal finds that the Applicant has an impairment rating of 15 points which is below the required threshold to qualify for the DSP.
DECISION
The decision under review is affirmed.

I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.................................[sgd].......................................
Associate
Dated: 14 May 2021

Date(s) of hearing: 23 April 2021

Applicant: In person

Solicitors for the Respondent: Ms S Moulder, Services Australia

Date(s) of hearing:	23 April 2021
Applicant:	In person
Solicitors for the Respondent:	Ms S Moulder, Services Australia