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

[2019] AATA 3502

Schultz and Secretary, Department of Social Services (Social services second review) [2019] AATA 3502 (16 September 2019)

Division:GENERAL DIVISION

File Number(s):      2018/1723

Re:Kathleen Schultz

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson AM

Date:16 September 2019

Place:Brisbane

The decision under review is affirmed.

...............................[SGD].........................................

Senior Member P J Clauson AM

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether Applicant had conditions that were fully diagnosed, fully treated and fully stabilised during Relevant Period – whether Applicant had 20 impairment points under the Impairment Tables – mental health condition– decision under review is 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

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

Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Senior Member P J Clauson AM

16 September 2019

1. On 29 August 2017, Ms Kathleen Schultz (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”)[1] listing her medical conditions as:[2]

   ·major depressive disorder

   ·chronic anxiety

   ·panic attacks

   ·social anxiety disorder

   ·panic disorder

   [1] Exhibit 1, T Documents, T9, pages 56-85, DSP Claim Form.

   [2] Exhibit 1, T Documents, T9, page 81, DSP Claim Form.

2. To support her claim for DSP, the Applicant provided a medical certificate by her general practitioner, Dr Justin Cuffe. In that report, Dr Cuffe listed the Applicant’s conditions as: chronic anxiety, depression, social anxiety, asthma, hypertension and morbid obesity.[3] The Applicant also included a self-prepared list of her issues[4] and provided a report by Dr Angela Anthonysamby, a clinical psychologist.[5]

   [3] Exhibit 1, T Documents, T7, page 53, Medical Certificate by Dr Justin Cuffe.

   [4] Exhibit 1, T Documents, T8, pages 54-55, Statement by the Applicant.

   [5] Exhibit 1, T Documents, T6, page 52, Report by Dr Angela Anthonysamy, Clinical Psychologist.

3. The issue before the Tribunal is whether the Applicant qualified for DSP at the date of her claim, 29 August 2017, or within 13 weeks thereafter, being up until 28 November 2017 (“Relevant Period”).

   HISTORY OF THE MATTER

4. On 29 August 2017, the Applicant lodged a claim for DSP[6] supported by a pro-forma medical report by Dr Cuffe dated 14 September 2017[7] and a report by Dr Anthonysamby dated 7 September 2017[8].

   [6] Exhibit 1, T Documents, T9, pages 56-85, DSP Claim Form.

   [7] Exhibit 1, T Documents, T7, page 53, Medical Certificate by Dr Justin Cuffe.

   [8] Exhibit 1, T Documents, T6, page 52, Report by Dr Angela Anthonysamy, Clinical Psychologist.

5. On 5 October 2017, the Applicant was assessed by a DSP Assessor regarding the Applicant’s medical eligibility to receive DSP. The Assessor’s professional discipline was listed as occupational therapist.[9] In the resulting Assessment Services Recommendation (“ASR”) report, the Assessor provided the view that the:[10]

   ·Applicant’s mental health conditions were considered to be permanent and fully diagnosed, as the diagnosis had been reported by the general practitioner and confirmed by a clinical psychologist. However, the Applicant’s mental health conditions could not be classified as fully treated and stabilised, as the Applicant had only recently undertaken an initial assessment with a clinical psychologist. A program of psychological intervention was recommended.

   ·Applicant’s other conditions of hypertension, asthma and morbid obesity were not supported by any medical evidence to indicate treatment for these conditions. Given that there was no medical evidence to advise that these conditions had received programs of medical treatment to optimally treat, manage and stabilise these conditions, these medical conditions could not be considered to meet the fully diagnosed, fully treated and fully stabilised criteria.

   [9] Exhibit 1, T Documents, T10, pages 86-87, Assessment Services Recommendation for DSP medical eligibility.

   [10] Exhibit 1, T Documents, T10, page 87, Assessment Services Recommendation for DSP medical eligibility.

6. On 31 October 2017, the Respondent wrote to the Applicant advising her that her application for DSP had been rejected on the basis that she did not have a rating of 20 or more impairment points.[11]

   [11] Exhibit 1, T Documents, T11, pages 88-89, Centrelink Notice: Rejection of DSP claim.

7. On 14 November 2017, the Applicant wrote to the Respondent and requested a review of that decision.[12]

   [12] Exhibit 1, T Documents, T12, page 90, Review of Decision form.

8. On 29 December 2017, a second ASR was undertaken by an occupational therapist. The Assessor found that the Applicant’s conditions were fully diagnosed, but not fully treated and fully stabilised.[13]

   [13] Exhibit 1, T Documents, T14, pages 94-95, Assessment Services Recommendation for DSP medical eligibility.

9. On 12 January 2018, the Applicant attended a face to face Employment Services Assessment (“ESA”) with a rehabilitation counsellor.[14] The Assessor provided an ESA Report that concluded that the Applicant had a baseline work capacity of 15-22 hours, but with intervention the Applicant had a capacity to work between 23-29 hours per week within 2 years.[15]

   [14] Exhibit 1, T Documents, T16, pages 97-101, Employment Services Assessment Report.

   [15] Exhibit 1, T Documents, T16, page 100, Employment Services Assessment Report.

10. The decision was affirmed by an Authorised Review Officer (“ARO”).[16] The ARO found that the Applicant’s conditions were fully diagnosed, but they were not fully treated and fully stabilised.

    [16] Exhibit 1, T Documents, T17, pages 102-107, Authorised Review Officer Decision and Notes.

11. On 14 March 2018, at first review by the Social Services and Child Support Division of the Tribunal (“AAT1”) affirmed the decision to reject the Applicant’s claim for DSP.[17] The AAT1 agreed with both previous decision makers that the Applicant’s conditions were fully diagnosed, but that they were not fully treated and fully stabilised. The AAT1 found that even if this were not the case, the Applicant’s mental health condition could not be assigned more than 10 points under Table 5.[18] Further, there was no evidence to suggest that the Applicant’s remaining conditions were causing a degree of functional impairment that was likely to prevent the Applicant from working.[19] Thus, the AAT1 found that the Applicant did not have an impairment rating of 20 points or more and was not qualified for DSP.

    [17] Exhibit 1, T Documents, T2, pages 3-5, Decision of the Social Services and Child Support Division.

    [18] Exhibit 1, T Documents, T2, page 5, Decision of the Social Services and Child Support Division.

    [19] Exhibit 1, T Documents, T2, page 4, Decision of the Social Services and Child Support Division.

12. On 27 March 2018, the Applicant filed an Application for Second Review of Decision with the General Division of the Tribunal.[20]

    [20] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.

13. The Applicant did not provide any further medical evidence personally. However, several pieces of additional medical evidence were provided to the Tribunal by the Respondent in the form of reports by Dr Cuffe and Dr Anthonysamy.[21]

    [21] Exhibits 7, Material Received from Dr Angela Anthonysamy; Exhibit 8, Material Received from Dr Justin Cuffe; and Exhibit 9, Medical Report from Consultant Psychiatrist Professor Michael Robertson to Dr Justin Cuffe.

    LEGISLATIVE FRAMEWORK

14. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. The three primary requirements are that:

    (a)the Applicant has a physical, intellectual or psychiatric impairment;[22]

    (b)the Applicant’s impairment is of 20 points or more under the Impairment Tables;[23] and

    (c)the Applicant has a continuing inability to work.[24]

    [22] Section 94(1)(a) of the Act.

    [23] Section 94(1)(b) of the Act.

    [24] Section 94(1)(c) of the Act.

15. Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”).

16. The Determination provides a general set of principles that must be considered when applying the Impairment Tables.[25] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations.[26] They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions. The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[27]

    [25] Section 5(1)-(2) of the Determination.

    [26] Section 5(2) of the Determination.

    [27] Section 6(1) of the Determination.

17. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if: the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[28] In order for a condition to be considered “permanent” it must:[29]

    (a)have been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)have been fully treated; and

    (c)have been fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than 2 years.

    [28] Section 6(3) of the Determination.

    [29] Section 6(4) of the Determination.

18. When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next 2 years.[30]

    [30] Section 6(5) of the Determination.

19. A condition is fully stabilised if:[31]

    (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.

    [31] Section 6(6) of the Determination.

20. Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[32]

    [32] Section 6(7) of the Determination.

21. An impairment rating can only be assigned in accordance with the rating requirement for each section each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two 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.[33] A rating cannot be assigned in excess of the maximum rating specified in each Table.[34]

    [33] Section 11(1) of the Determination.

    [34] Section 11(1) of the Determination.

22. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

23. The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) provides that qualification for DSP and assessment of the relevant impairment ratings are determined as at the date of claim, being 29 August 2017. The exception arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified 13 weeks following the date of claim.[35] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[36]

    [35] Sections 41 and 42, clauses 3 and 4(1), Schedule 2, Part 2 of the Administration Act.

    [36] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].

    RELEVANT PERIOD

24. The Relevant Period for considering whether the Applicant qualified for DSP in this matter is from 29 August 2017, the date the Applicant lodged her claim for DSP, and the 28 November 2017, 13 weeks later.

    ISSUES FOR THE TRIBUNAL

25. It is not in dispute that the Applicant has impairments for the purposes of section 94(1)(a) of the Act.[37] However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and that the Applicant did not satisfy sections 94(1)(b) or (c) of the Act.[38]

    [37] Exhibit 2, Respondent’s Statement of Facts and Contentions, page 6, paragraph 30.

    [38] Exhibit 2, Respondent’s Statement of Facts and Contentions, page 6.

26. The remaining issues for the Tribunal to consider are:

    (a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric condition(s) which was fully diagnosed, fully treated and fully stabilised;

    (b)whether at the Relevant period, the Applicant’s condition(s) caused a functional impairment that attracts an impairment rating of 20 points or more under the Impairment Tables, and if so;

    (c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and

    (d)whether the Applicant has a continuing inability to work.

    EVIDENCE

    Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

    Mental Health Condition – Table 5 – Mental Health Function

27. In her written submission dated 19 September 2018,[39] the Applicant relied primarily on the letter from her general practitioner Dr Cuffe dated 14 November 2017 and in particular to the statement “[the Applicant] has a long term history of chronic anxiety and depression for more than twenty years. These conditions are treated, permanent and stable”.[40] The Applicant also relied upon another letter of Dr Cuffe dated 15 February 2018[41] wherein he effectively repeated the contents of the letter dated 14 November 2017, but added that: “She has completed her counselling sessions with the psychologist Angela Anthonysamy.” The Applicant’s current list of medications was also set out.

    [39] Exhibit 6, Applicant’s Submissions dated 19 September 2018.

    [40] Exhibit 1, T Documents, T13, page 92, Medical Summary by Dr Justin Cuffe.

    [41] Exhibit 1, T Documents, T19, page 110, Medical Summary by Dr Justin Cuffe.

28. The Applicant further relied in her submission upon a letter from Dr Cuffe of the 27 March 2018[42] and in particular his statement that: “She is currently unable to work, as her symptoms can be in the extreme range.” The Applicant also relied upon other the reports prepared by Dr Cuffe dated 14 September 2017[43] and the 4 April 2018 (this report could not be found in the material before the Tribunal) respectively. The reports reiterated the view that the Applicant could not engage in work as her conditions were permanent and at the extreme range of impairment.

    [42] Exhibit 3, Medical Report of Dr Justin Cuffe.

    [43] Exhibit 1, T Documents, T7, page 53, Medical Certificate by Dr Justin Cuffe.

29. The Applicant relied upon a report by Dr Anthonysamy dated 29 May 2018, outside the Relevant Period, which stated:[44]

    “In summary, [the Applicant’s] depression and anxiety has become a chronic mental health condition that limits her level of functioning and at this stage this will greatly impact her ability to hold jobs”.

    [44] Exhibit 7, Material Received from Dr Angela Anthonysamy, page 6.

30. The Applicant had been referred to Dr Anthonysamy by Dr Cuffe and she had her first session with Dr Anthonysamy on the 6 September 2017. Dr Anthonysamy prepared a report for Dr Cuffe the following day regarding the Applicant’s conditions.[45] The report confirmed that the Applicant suffered major depression following the death of her grandmother and that she reported that she had chronic depression and anxiety for most of her life. She had also experienced a failed suicide attempt, but felt conflicted about dying and leaving her daughter to deal with that outcome. It was noted that she refused hospital admission and that she agreed to a safety plan and to contact Dr Anthonysamy if she was feeling suicidal. Dr Anthonysamy also expressed concern in the report regarding the Applicant’s social isolation and the possible requirement for family intervention. Dr Anthonysamy further convinced the Applicant to undertake one counselling session per week for a period of six weeks and to report to Dr Cuffe at the end of those sessions. The report noted that the Applicant seemed agreeable to continuing with more sessions with Dr Anthonysamy.

    [45] Exhibit 1, T Documents, T6, page 52, Report by Dr Angela Anthonysamy, Clinical Psychologist.

31. The Applicant’s evidence to the Tribunal under cross examination was that she unilaterally ceased these sessions with Dr Anthonysamy on 1 November 2017 on the basis that she considered they were not helping. However, she also told the Tribunal that she agreed that Dr Anthonysamy had recommended a further four sessions of therapy and that she needed much more long term therapy if any significant change was to be achieved. In her evidence, the Applicant volunteered that the report of Dr Anthonysamy dated 29 May 2018[46] stated that she was highly resistant to any therapy she attended.

    [46] Exhibit 7, Material Received from Dr Angela Anthonysamy, page 5.

32. When asked about her engagement with other medical specialists in the field of mental health, the Applicant agreed that she had been referred to two psychiatrists by Dr Cuffe. The Applicant saw Dr Michael Robertson, consultant psychiatrist, who prepared a report for Dr Cuffe dated 26 September 2017.[47] Dr Robertson expressed a view in the following terms:[48]

    “I do not believe that [the Applicant’s] psychosocial impairment is of such severity that it would be inconsistent with at least part-time employment. I think that [the Applicant’s] mental health would be best served by her being provided opportunities to engage with a disability employment service or at least a rehabilitation provider to help her refine her skills and seek suitable employment. There are clearly benefits to work participation, particularly given [the Applicant’s] pattern of abnormal illness behaviour… Given she was little interested in any substantive discussion about her care I had little else to offer her... In essence, I do not believe [the Applicant’s] psychiatric symptoms and concomitant psychosocial disability are inconsistent with at least part-time employment and I am not in a position to provide unqualified support for her application for Centrelink benefits.”

    [47] Exhibit 9, Medical Report of Professor Michael Robertson.

    [48] Exhibit 9, Medical Report of Professor Michael Robertson, page 1-2.

1. The Applicant told the Tribunal that Dr Robertson “was the rudest man I’ve ever met in my life” and that he had only seen her for a total of “about 15 minutes”.[49] She concurred with the Respondent’s representative that at that time she believed she had no work capacity and that she should be receiving the DSP. The report by Dr Robertson was unable to confirm that this was in fact the case.[50]

   [49] Transcript of Proceedings, page 17, line 32.

   [50] Exhibit 9, Medical Report of Professor Michael Robertson.

2. The Applicant was then referred to a second psychiatrist by Dr Cuffe. Dr Dick Williams, consulting psychiatrist, prepared a report dated the 19 October 2017 which he provided to Dr Cuffe.[51] This report was generally reflective of the Applicant’s history with regard to her background and notably states:[52]

   “Three months back she took an overdose of sedatives following the death of her gran. She had written letters to various family and had laid out money and valuables for collection. However, she woke the next day and did not seek immediate help. She has, however met up with a psychologist ‘helpful’ and a psychiatrist colleague, ‘he was terrible’… [the Applicant] is convinced that Aropex 60 mg has been her saviour and it would be a nigh impossible task to convince her otherwise. I presume Angela has introduced her to relaxation techniques plus and CBT but she needs to modify her sedentary lifestyle. I expect she is still grieving for gran for whom she acted as carer and perhaps mum also. Bariatric surgery might be an option although [the Applicant] did not show much enthusiasm for this… I have arranged review for next month.”

   [51] Exhibit 8, Material Received from Dr Justin Cuffe, page 87.

   [52] Exhibit 8, Material Received from Dr Justin Cuffe, page 87.

3. The Applicant did not report back to Dr Williams the following month as arranged. The Applicant confirmed Dr Williams’ report during cross examination. The transcript reveals this in the following exchange:[53]

   “Yes. So, you would agree that you asked to see another psychiatrist?---Yes. All right, and you did see Dr Williams, didn’t you?---I did. But only once?---Only once. He told me to continue with Dr Anthonysamy for grief counselling. But he also actually arranged a review with you for the next month, didn’t he?---I think so. Yes, but you never attended?---No, no. I explained to Dr Cuffe, it just makes me cry talking to people.”

   [53] Transcript of Proceedings, page 18, lines 20-31.

4. The Respondent in this matter accepts that the Applicant’s depression condition is fully diagnosed.[54] Having considered the evidence before me relating to this aspect of the matter, the Tribunal agrees and accepts that this is correct.

   [54] Exhibit 2, Respondent’s Statement of Facts and Contentions, page 6, paragraphs 35-46.

5. The Respondent contends the medical evidence does not establish that the Applicant’s mental health condition was fully treated and fully stabilised during the Relevant Period.[55]

   [55] Exhibit 2, Respondent’s Statement of Facts and Contentions, page 6, paragraphs 35-46.

   CONSIDERATION

6. The Tribunal accepts the contention of the Respondent that the mental health condition while fully diagnosed, had not been fully treated and fully stabilised based at the Relevant Period based on the medical and oral evidence adduced.

7. The evidence available to the Tribunal surrounding the Applicant’s mental health condition does not establish any level of impairment of capacity during the Relevant Period, nor that the Applicant’s condition was fully treated and fully stabilised. The letter of Dr Cuffe dated 14 November 2017 stated “[the Applicant] has a long history of chronic anxiety and depression for more than twenty years. These conditions are treated, permanent and stable.”[56] The letter dated 15 February 2018 stated “[the Applicant] has a long history of chronic anxiety and depression. Her condition is currently stable and permanent. She has completed her counselling sessions with the psychologist Angela Anthonysamy”.[57] This letter then lists her medications as Aropax 20mg Tablet twice daily and Valium 5mg Tablet 1/2-1 nocte prn for anxiety. Unfortunately, none of these letters from Dr Cuffe speaks to what treatment, other than medication, she had or was receiving over the years for the mental health condition prior to or during the Relevant Period. Also, the letter dated 15 February 2018 mistakenly states that the Applicant had completed her counselling sessions with Dr Anthonysamy. However, Dr Anthonysamy had recommended the Applicant receive four more treatments following the six she had completed on the 18 October 2017.

   [56] Exhibit 1, T Documents, T13, page 92, Medical Summary by Dr Justin Cuffe.

   [57] Exhibit 1, T Documents, T19, page 110, Medical Summary by Dr Justin Cuffe.

8. Dr Anthonysamy confirmed that the Applicant had attended the six counselling sessions for therapy which was “focused on grief and loss issues and coping strategies”[58] following the death of her grandmother for whom she had cared for seven years prior to her death. The death of her grandmother was confirmed to be impactful upon the Applicant. According to Dr Anthonysamy, on the Depression Anxiety and Stress Scales (“DASS”) the Applicant had “extremely severe ranges for depressive, anxiety and stress symptoms”.[59] Dr Anthonysamy also confirmed that the Applicant reported the use of Aropax “for years”.[60] Dr Anthonysamy described the Applicant as presenting with “a highly fragmented sense of self and due to this… she is also highly resistant to any therapy she attends”[61]

   [58] Exhibit 4, Letter from Dr Angela Anthonysamy, page 5.

   [59] Exhibit 4, Letter from Dr Angela Anthonysamy, page 5.

   [60] Exhibit 4, Letter from Dr Angela Anthonysamy, page 5.

   [61] Exhibit 4, Letter from Dr Angela Anthonysamy, page 5.

9. In her evidence, the Applicant also pointed to the section in Dr Anthonysamy’s report which stated that she was highly resistant to any therapy she attended. This statement by Dr Anthonysamy is somewhat ambivalent in its meaning for the purposes of the Tribunal insofar as it could be interpreted in one of two ways. It could mean idiosyncratic to the Applicant’s state of mind as part of her condition or, on the other hand, it could simply mean that the Applicant is not prepared to engage in the process because it may not suit her purpose so to do. In any event, the evidence before the Tribunal clearly indicates that the Applicant has chosen not to continue her engagement with her clinical psychologist Dr Anthonysamy, or the psychiatrists Dr Robertson and Dr Williams to whom she was referred by Dr Cuffe.

10. In order to establish that the Applicant’s mental health condition has been fully treated and fully stabilised, it is necessary to establish that, either the Applicant:[62]

    ·has undertaken reasonable treatment and that further reasonable treatment is unlikely to result in significant functional improvement enabling her to work within the next 2 years or,

    ·has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment.

    [62] Section 6(6) of the Determination.

11. It is the view of the Tribunal that the Applicant has not undertaken any treatment for her mental health condition that could satisfy the requirements of the first part of the test nor has she established sufficient grounds to support the application of the second part of the test. The evidence of the specialists is particularly persuasive in this regard, although in somewhat scant availability. Dr Anthonysamy in her report dated 23 October 2017 indicates that the Applicant would benefit from another four sessions with her and that she would require “much more long term therapy to see any significant change in her behaviour”.[63] Dr Robertson in his report of the 26 September 2017 suggests that when the Applicant saw him her condition was not fully treated and stabilised.[64] Dr Williams suggested that an ongoing treatment regime would assist the Applicant, as he indicated that he would follow up his initial consultation with the Applicant one month after her initial consultation with him.[65]

    [63] Exhibit 8, Material Received from Dr Justin Cuffe, page 88.

    [64] Exhibit 9, Medical Report from Consultant Psychiatrist Professor Michael Robertson to Dr Justin Cuffe.

    [65] Exhibit 8, Material Received from Dr Justin Cuffe, page 87.

12. It is clear to the Tribunal that all three specialists felt that the Applicant had not completed her treatment for her mental health condition and that an ongoing regime of treatment was required before any view could be formed as to whether her mental health condition could be classified as fully treated and fully stabilised.

13. The Tribunal therefore considers that the Applicant’s mental health condition was not fully treated or fully stabilised during the Relevant Period and thus no impairment rating could be assigned.

    Other Conditions – Hypertension, Morbid Obesity and Asthma

14. The Tribunal notes that the evidence before it indicates that the Applicant also suffers from other medical conditions namely: hypertension, morbid obesity and asthma.[66]

    [66] Exhibit 1, T Documents, T7, page 53, Medical Certificate by Dr Justin Cuffe; and Exhibit 1, T Documents, T13, page 92, Medical Summary by Dr Justin Cuffe.

15. The Respondent contends that there is insufficient medical evidence in relation to the treatment of these conditions or their functional impact.[67]

    [67] Exhibit 2, Respondent’s Statement of Facts and Contentions, page 8-9, paragraph 47.

16. The Tribunal agrees that there is a paucity of evidence as to whether these conditions are fully diagnosed, fully treated and fully stabilised and notes that the Applicant did not progress these conditions at Hearing. The Tribunal is unable to be satisfied that these conditions were permanent and therefore is unable to assign them an impairment rating.

    Summary of Impairment Points

17. The Applicant does not have a total of 20 or more impairment points under the Impairment Tables, she therefore does not satisfy the requirement under section 94(1)(b) of the Act.

    Continuing Inability to Work

18. Given that this Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for me to consider whether she satisfies section 94(1)(c) of the Act.

    DECISION

19. For the reasons I have set out above, the decision under review is affirmed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

..........................[SGD]...............................

Associate

Dated: 16 September 2019

Date of Hearing:	19 October 2018
Applicant:	By Telephone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Department of Human Services