Sesalim and Secretary, Department of Social Services (Social services second review) - [2021] AATA 4783

Sesalim and Secretary, Department of Social Services (Social services second review) [2021] AATA 4783 (22 December 2021)
Division:GENERAL DIVISION
File Number: 2018/0843
Re:Dean Sesalim
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

File Numbers: 2017/6422 & 2018/1134
Re:Secretary, Department of Social Services
APPLICANT

AndDean Sesalim
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:22 December 2021
Place:Melbourne

In application 2017/6422, the reviewable decision made on 28 September 2017 is set aside and in substitution the Tribunal decides that on 10 August 2017 Mr Sesalim did not satisfy the requirements of sections 94(1)(b) and (c) of the Act and therefore did not qualify for the DSP; and
In applications 2018/0843 and 2018/1134, the Tribunal decides to set aside the reviewable decision dated 6 February 2018 and in substitution decides that on 10 August 2017 Mr Sesalim did not satisfy the requirements of:
(i)sections 94(1)(b) and (c) of the Act and therefore did not qualify for the DSP; and

(ii)section 1218AAA of the Act and therefore, was not eligible for unlimited portability of the DSP.

.....[sgd]...................................................................
R Cameron, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – qualification for payment – conditions of anxiety, depression and cervical canal stenosis – post traumatic stress disorder – whether impairment attracts a rating of 20 points or more under impairment Tables – eligibility for unlimited portability – applicant did not meet qualifying criteria – decision set aside and substituted
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Sesalim and Secretary, Department of Social Services [2020] AATA 11
Secondary Materials
Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination
REASONS FOR DECISION
R Cameron, Senior Member
22 December 2021
INTRODUCTION

There are three applications before the Tribunal in which review is sought of two decisions of the Social Services & Child Support Division.
The first decision was made on 28 September 2017 that Mr Sesalim remained eligible for the disability support pension (“the DSP”) at the time it was cancelled, as he continued to satisfy paragraphs (a), (b) and (c) of section 94(1) of the Social Security Act 1991 (“the Act”). The Secretary, Department of Social Services (“the Secretary”), seeks a review of this decision.
The second decision was made on 6 February 2018 that Mr Sesalim:
(a)satisfies section 94(1) of the Act and therefore continues to be eligible to receive the DSP; and
(b)is not eligible to be paid the DSP on an unlimited basis whilst overseas.
Both parties seek review of the second decision.
THE EVIDENCE
No oral evidence was given at the hearing of these applications. The matter proceeded by way of tender of documentary evidence. Both parties tendered bundles of documents.
It should be observed that included in the Secretary’s tender bundle was the transcript of the hearing previously conducted in Sesalim and Secretary, Department of Social Services [2020] AATA 11[1] (“the 2020 matter”). That decision affirmed a previous decision of the Social Services & Child Support Division of this Tribunal, which affirmed a decision of an Authorised Review Officer cancelling Mr Sesalim’s DSP as at 1 September 2015.[2]
[1] Application 2015/4791.
[2] Application 2015/4791.
The Tribunal directed that the transcript of the proceedings in the 2020 matter be evidence in these applications.
The only additional documentary evidence that was tendered at the hearing of these applications from the 2020 matter were two emails of 23 and 27 of April 2021 between

Mr Sesalim
and an adviser at Deakin University, withdrawing his candidature for a higher degree.
It should also be noted that the Secretary lodged and served a Statement of Facts, Issues and Contentions, and Mr Sesalim lodged and served a written submission. Both documents have been considered by the Tribunal.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
The issues for determination in these applications are whether Mr Sesalim was:
(a)qualified for the DSP on 10 August 2017 (“the cancellation date”) (applications 2017/6422 and 2018/1134); and
(b)entitled to unlimited portability on and from 10 August 2017 (application 2018/0843).
THE REGULATORY FRAMEWORK
This application is governed by the following:
(a)The Act;
(b)Social Security (Administration) Act 1999 (“the Administration Act”); and
(c)Social Security (Tables for the Assessment of work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”).
The criteria that must be satisfied in order to qualify for the DSP are found in section 94 of the Act. A person qualifies if:
(a)they have a physical, intellectual or psychiatric impairment;
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a “continuing inability to work”.
Each one of these criteria must be satisfied for a person to qualify for the DSP.
The Impairment Tables contain descriptors which identify functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of the relevant impairment. Rule 6, “Applying the tables”, provides the decision-maker with the framework for their application. An impairment rating can only be assigned if the condition is permanent (Rule 6(3)). A condition is permanent if it has been fully diagnosed, fully treated, fully stabilised and is more likely than not to persist for more than two years (Rule 6(4)). Rules 6(5) and (6) define when a condition is fully diagnosed, fully treated and fully stabilised. Rule 6 of the Impairment Tables need not be reproduced for the purposes of these reasons.
The Secretary is obliged under section 80 of the Administration Act to cancel or suspend a person’s social security payment, which includes the DSP, if they are satisfied that such payment is being, or has been paid to a person who is not, or was not, qualified for the payment; or to whom the payment is not or was not payable.
Section 1218AAA of the Act dictates when an unlimited portability for a DSP will be granted. All of the “circumstances” identified in this section must be satisfied before the discretion to grant a person unlimited portability of his or her DSP can be exercised. The circumstances include that the Secretary be satisfied that the person’s impairment is a severe impairment within the meaning of section 94(3B) of the Act. This section provides that a person has a “severe impairment” if they have been assigned 20 points or more under a single Impairment Table.
THE CONDITIONS SUFFERED BY MR SESALIM
The material before the Tribunal demonstrates that Mr Sesalim suffers from conditions of anxiety and depression, together with cervical canal stenosis. In the 2020 matter the Tribunal undertook a detailed analysis of both conditions. Given that the evidence in that proceeding is also evidence in this proceeding, the Tribunal sees no reason not to, where appropriate, adopt the reasoning used in the previous decision.
It should be noted that the Secretary accepts that Mr Sesalim’s post-traumatic stress disorder (“PTSD”) and cervical spine conditions were fully diagnosed as at the cancellation date of 10 August 2017. However, the Secretary submits that those conditions were not fully treated and stabilised at that time, and therefore cannot be assigned an impairment rating under the Impairment Tables.
It is appropriate to reproduce the Tribunal’s findings in the 2020 matter about Mr Sesalim’s conditions and undertake further analysis for the purposes of these applications. With respect to Mr Sesalim’s conditions, the Tribunal observed:
24.There is some variation in the material as to the description of the conditions suffered by the Applicant.
25. As a starting point, it is appropriate to examine the medical report prepared by the Applicant’s treating general practitioner Dr Olszewski which was lodged with the Respondent on 20 April 2015 (the Medical Report of 20 April 2015).
26. The first condition identified in the Medical Report of 20 April 2015 was “Anxiety/Depression”.
27. The second condition identified in the Medical Report of 20 April 2015 was “Moderate to severe acquired cervical canal stenosis C 4/5, C 5/6 and C 6/7.”
28. In two other documents entitled “Additional Medical Evidence for Disability Support Pension Record” various terms are used including “PTSD with associated depression, anxiety and chronic pain” and “Cervical Canal stenosis”.
29. In its Statement of Facts, Issues and Contentions and other documentation, the Respondent has tended to use more generic terms to identify the conditions describing them as “Mental health condition” and “Cervical spine condition”.
30. The Tribunal considers it is most appropriate to adopt the description used in the Medical Report of 20 April 2015 prepared and signed by the Applicant’s treating general practitioner. Naturally, whichever description is used, including variations of those descriptions throughout the evidence both documentary, and oral, they have been considered by the Tribunal.
Anxiety and Depression
The observations made by the Tribunal concerning Mr Sesalim’s condition of anxiety and depression made in the 2020 matter warrant reproduction as they also significantly address the situation as at the cancellation date relevant to these applications, namely 10 August 2017.
The Tribunal, in the 2020 matter, observed as follows:
Anxiety and depression
[31] At the commencement of a consideration concerning this condition it should be recorded that the Respondent at all times in this application accepted that the Applicant’s anxiety, depression and Post Traumatic Stress Disorder (PTSD) were fully diagnosed as at the relevant dates. As noted earlier, the significant bone of contention between the parties is that the Respondent does not accept that this condition had been fully treated or stabilised in either 2015 or 2017.
[32] There was much expert evidence before the Tribunal concerning these conditions. It is apparent that the Applicant has sought treatment for various mental health conditions over many years both before and after the relevant dates.
[33] The Medical Report of 20 April 2015 identifies the date of onset of this condition as 2004. The current and past treatment was identified as psychological counselling. Future and planned treatment was identified as being conservative. The history and various symptoms were recorded as including difficulty in concentration and memory, sleep disturbance, anger and time management issues.
[34] Subsequently, in a telephone conversation on 10 June 2016 between Dr Olszewski and a member of the Respondent’s Health Professional Advisory Unit (“HPAU”), he advised them that the Applicant had been treated by several psychologists and the condition appeared to be stable, although his symptoms would fluctuate. Dr Olszewski also noted that he did not have a record of the Applicant having undertaken any psychiatric treatment. He concluded, in his discussion with that member of the HPAU, that at that time the impact of the PTSD appeared to be moderate not severe.
[35] Another member of the HPAU spoke with a psychologist, Dr Gerke Witt, on 29 June 2015. She confirmed the diagnosis and also observed that such condition appeared to be stable although the symptoms fluctuated. She stated that past treatment consisted of medication and psychological therapy. There had been no record of psychiatric intervention. She recommended further treatment techniques.
[36] There is no evidence before the Tribunal that the Applicant has ever consulted a psychiatrist for treatment of anxiety and depression or any other mental health condition.
[37] A report of a psychologist Ms Bender of 12 October 2010 (the Bender report) was in evidence. She had seen the Applicant under a Medicare Mental Health Care Plan and provided 24 counselling sessions from June 2009 until 12 May 2010. It appears from an examination of this report that it was prepared to support the Applicant in dealing with some form of court appearance. She recorded that the Applicant had previously been diagnosed with PTSD and provided details of his symptoms which need not be repeated. Critically, she observed that someone suffering from PTSD needs to be persuaded in mind and body that the danger has subsided and that safety is largely established in order to embark on a normal pattern of living and relationship. To achieve this objective she recommended further counselling and support for attention to his mental health issues.
[38] Another psychologist Mr Francois Joubert prepared a report concerning the Applicant in October 2012 (the Joubert report). This report was prepared following an appearance by the Applicant in court where he had given an undertaking requiring him to participate in counselling. That the Applicant was suffering from PTSD was acknowledged. Details were provided of the various symptoms suffered by him and the effect they were having upon his life at that time. Mr Joubert identified strategies that were implemented and further strategies and interventions that he considered would assist, and continue to assist the Applicant achieve what he described as constructive outcomes. Those recommended strategies and interventions were as follows:
(a) Employ Cognitive Behavioural Therapy (“CBT”) Techniques to help reduce his anxiety and depressive symptomology;
(b) Assist him to successfully reintegrate into society via engagement with friends, and social activities;
(c) Utilise grounding techniques to help him work through avoidance of the trauma and feelings of depersonalisation associated with it;
(d) Utilise individual trauma focused CBT to help him confront the memory of his trauma in a safe and controlled environment;
(e) Narrative therapy; to help him create a clear and coherent narrative of the trauma that is understandable to him;
(f) Increase his range of affect and enhance his ability to soothe his heightened levels of arousal;
(g) Work on building his sense of self-worth, self-esteem and resilience. Assist him to develop his identity and self-confidence to make decisions on his own; and
(h) Relaxation and deep breathing techniques.
[39] Mr Joubert concluded that with ongoing treatment and support the Applicant may develop the ability to reduce his traumatic symptoms and potentially reach a level of social functioning that would enable him to integrate effectively.
[40] Dr Witt prepared a report in or about 20 January 2014 in which she also diagnosed the Applicant as presenting with high clinical levels of depressive, anxiety and stress levels, as well as severe and chronic PTSD. She gave details of the range of clinical symptoms he presented to her with. Her conclusion was that given the “chronicity and complexity” his psychological condition was unlikely to resolve spontaneously in the near future. He therefore required long-term counselling and assistance. She did not specify what form that counselling and assistance might take, for instance whether psychiatric attention was warranted.
[41] Dr Witt prepared a further report on 16 June 2015 in support of the Applicant who was seeking special consideration for outstanding fines from the Victorian Department of Justice and Regulation (now known as Department of Justice and Community Safety). She repeated her findings of the conditions suffered by the Applicant as stated in her April 2014 report previously referred to. She noted that since his first appointment with her on 6 January 2014, he had seen her 14 times. She stated that the Applicant had sought help from a number of professionals in the last few years including, counselling, psychological, medical and psychopharmacological treatment, with limited benefit. Once again she repeated that given the chronicity and complexity of his psychological condition it was unlikely to resolve spontaneously in the near future and required long-term counselling and assistance. She did not specify what form that counselling and assistance might take, for instance whether psychiatric attention was warranted.
[42] A “Clinical Psychology Treatment Report” was also prepared by Dr Witt and was in evidence before the Tribunal. It is undated, but has a date stamp endorsed upon it as having been received on 17 July 2015. The Tribunal infers that it was most likely prepared by Dr Witt on or about that date. She records in that report that as at the date of its compilation the Applicant had completed six sessions of clinical psychology treatment in 2015. The contents of that report are referred to in their entirety. However, she recorded amongst other things, the various symptoms experienced by the Applicant. These included that he was struggling with ongoing and worsening pain levels. He had cognitive distractibility interfering with his plans and ability to focus on completing his studies, causing distress, irritability, hopelessness. There were ongoing sleep issues and that he was using alcohol. She noted that he was seeking assistance with legal processes including fines, and Centrelink. The treatment administered by her was identified as CBT, psycho-education, mindfulness and acceptance commitment therapy. She recommended continued treatment to reduce symptoms to acceptable levels and prevent relapse.
[43] The fact that Dr Witt, who by July 2015 had frequent contact with the Applicant, recorded that his pain levels were worsening, and that there were continued treatment options available to reduce symptoms to acceptable levels, and prevent relapse, is strongly indicative of the fact that both of the Applicant’s conditions were not fully treated and stabilised within the relevant sense required by the application of both the Act and the Impairment Tables.
[44] A clinical psychologist engaged by HPAU prepared a report, or more accurately as it was described “Opinion”, on 29 June 2015. That report concluded that the Applicant presented with a permanent, fully diagnosed, fully treated and fully stabilised condition of depression, anxiety and PTSD. The author of the report referred to the Bender report, the Joubert report, the reports of Dr Witt and the contact with the Applicant’s treating general practitioner, Dr Olszewski. The author concluded that there was satisfactory medical and other supporting evidence to conclude that the condition had been fully treated by pharmacotherapy, psychological treatments and mindfulness. Further, it was concluded that in the light of moderate improvements achieved with the treatments to date it cannot be asserted that psychiatric treatment would result in a significant improvement in the next 24 months.
[45] Two reports prepared by a clinical psychologist Dr Michael King were in evidence before the Tribunal. The first report prepared by Dr King is dated 28 April 2017. In the first paragraph of that report he identifies a current question being “has this man deteriorated in functionality and has this deterioration been in recent times.” Prior to compilation of this first report Dr King administered several tests. Details of these tests and the results are included in the report. He recorded that the Applicant had, since arriving in Australia, functioned at an advanced level of intellectual ability, (indeed he described him as a person of above average intelligence) given the fact that he had been admitted to a doctoral level degree. This was an opinion with which Associate Professor Mendelson agreed. Dr King observed that the Applicant’s current mental state was such that he could not retain focus on any cognitive task. Further, the effort of attempting to maintain such focus led to constant and entirely disrupting lapses of attention (“a state where he cannot proceed with his work”). The effect of these symptoms was to prevent the Applicant from progressing to a functioning professional level.
[46] This report does not express any opinion about future treatment options for the Applicant’s conditions. It at best really identifies the current mental state experienced by the Applicant as at the date of its compilation. It is difficult from this document to reach a conclusion about the Applicant’s mental state at the date relevant to this application in July 2015. Also whether the date be in July 2015, or any other date the contents of this report do not enable one to conclude that the applicant’s conditions, including anxiety and depression or any other mental health affliction, had been fully treated and stabilised. Associate Professor Mendelson made some observations concerning this report of Dr King which will be addressed later in these reasons.
[47] Dr King’s second report was dated 22 August 2018. Dr King recorded that he had been asked by the Applicant’s “legal team” to comment upon the Applicant’s capacity to deal with stressful events and specifically to comment upon the possibility that he may experience “more than “normal” levels of anxiety under cross examination in his present (2018) matter”. In the penultimate paragraph of that report he concluded that it was his expectation that as a direct consequence of the Applicant’s “well-documented mental health issues, he would likely display unexpected and quite likely negative responses under the additional duress of being in court.” Once again, it would appear that this report was prepared in anticipation of a Court appearance. No letter of instruction or details of the request from the Applicant’s legal team were provided to the Tribunal. In the body of this report Dr King reproduces the first four paragraphs of Dr Witt’s 20 January 2014 report. He then expresses the opinion that the Applicant continued to display similar symptoms (presumably as identified in Dr Witt’s 20 January 2014 report) which had not diminished with time, nor via clinical psychological support. He makes no recommendations for future treatment. Additionally, he does not state, nor is it possible to infer, that he has concluded that the Applicant’s conditions have been fully treated and stabilised.
[48] A report of 23 April 2019 from Mr Bryan Kimpton (Kimpton) was in evidence. He, like several other psychologists whose reports have already been referred to, noted the conditions that the Applicant presented with including what he described as “chronic PTSD” together with its symptoms. He firmly concluded that the Applicant required a current psychiatric assessment and likely ongoing management. Further psychological intervention could only be an adjunct, and not an alternative to, a psychiatrist being involved. Kimpton observed that the Applicant had informed him that attempts had been made in the past to find a private psychiatrist prepared to accept him as a patient who would bulk bill. These attempts had been unsuccessful. These attempts to locate a private psychiatrist by the Applicant, more likely than not on the advice of other healthcare professionals, are consistent with a recognition on the part of both the Applicant, and the other healthcare professionals who he has consulted, that psychiatric intervention was necessary and appropriate to fully treat and stabilise the mental health conditions from which he suffers.
[49] Finally, there was in evidence an extensive report from Associate Professor Mendelson of 15 March 2019. He is, as noted earlier, a highly qualified and vastly experienced Consultant Psychiatrist, who in addition to several impressive clinical and teaching appointments has a long history of publishing learned articles, texts and giving presentations in the realms of psychiatry. Associate Professor Mendelson also gave oral evidence to the Tribunal. He was the only healthcare professional to do so. He was an impressive witness whose evidence was of much assistance to the Tribunal. His report was the only expert report prepared specifically for the hearing of this application. Prior to the preparation of his report he was furnished with a detailed letter of instruction and an extensive array of medical reports and other material by the Respondent’s solicitors. He was asked specific questions as follows:
Do you consider that Mr Sesalim had undertaken reasonable treatment for his mental health condition by:
-10 July 2015; and
-10 August 2017?
If you consider that Mr Sesalim did not undertake reasonable treatment for his mental health condition by either 10 July 2015 or 10 August 2017, what further reasonable treatment do you consider would be appropriate? Were there any reasons why Mr Sesalim could not have undertaken the treatment/s you recommended?
What benefit would he expect from any further reasonable treatment you have identified, had Mr Sesalim undertaken such treatment prior to the date of each cancellation, or now?
Having regard to your answers above, do you consider that Mr Sesalim’s mental health condition was fully diagnosed, treated and stabilised as at either 10 July 2015 or 10 August 2017?
[50] Associate Professor Mendelson concluded that the Applicant’s PTSD had not been fully assessed or diagnosed, and also not optimally treated and stabilised, as at both 10 July 2015 and 10 August 2017. He reached this conclusion after considering the material he had received and the history given to him by the Applicant when he consulted him on 20 February 2019. His opinion is based upon the current best practice guidelines for treatment of PTSD. He enclosed the current relevant practice guidelines published by the American Psychiatric Association. He also referred to the current guidelines published by the Australian Centre for Post-traumatic Mental Health.
[51] Associate Professor Mendelson recommended that the Applicant be referred to the Psychological Trauma Recovery Centre, located at Austin Health, for detailed assessment and treatment as appropriate. He observed this centre, located at a public hospital, provides both inpatient and outpatient treatment for persons experiencing trauma related mental health conditions. He opined that had the Applicant been referred for such specialised assessment and treatment in 2009 or earlier, he would have expected that treatment at a tertiary institution, under the care of psychiatrists and psychologists with training and expertise in the diagnosis and management of PTSD, would have led to significant amelioration of symptoms even if full remission had not been achieved.
[52] Associate Professor Mendelson was probed in cross-examination by the Applicant about treatment and diagnosis of PTSD. In particular he was asked what treatment regimes might be implemented with someone suffering such conditions as him. Associate Professor Mendelson said that an approach most likely to be adopted would be either “first-line” or “second-line” medication. Usually, when such types of treatment by medication are adopted they are also aligned with psychological treatment. The aim he described of such treatment, is to be tailored to the individual patient’s needs as assessed by the psychiatrist. In some cases this is undertaken in an inpatient environment. The Tribunal accepts this assessment by Associate Professor Mendelson as a rational and reasonable treatment option for someone such as the Applicant.
[53] The Tribunal considers that the Applicant’s mental health conditions including PTSD had not been fully treated and stabilised as at 10 July 2015. It does not accept the conclusion in the HPAU report. It prefers the conclusions of Associate Professor Mendelson which is to a considerable extent supported by the slightly more recent opinion of Mr Kimpton. The effect of the other reports referred to will also be considered. The opinion expressed in the HPAU report relied upon a conclusion that in the light of moderate improvements achieved with the treatments to date, it cannot be asserted that psychiatric treatment would result in a significant improvement in the next 24 months. This conclusion or opinion was arrived at after taking into account comments from Dr Olszewski and the contents of reports and observations made by Dr Witt. The Tribunal considers that neither Dr Olszewski nor Dr Witt went that far. They acknowledged that there had been no psychiatric intervention as at the relevant date. Dr Olszewski considered planned treatment could include medication and noted that his symptoms fluctuate. Dr Witt also noted that the Applicant’s symptoms tended to fluctuate and also noted there had been past treatment with medication and psychological therapy. Neither of them reached the conclusion that the HPAU report did; that psychiatric treatment would not result in significant improvement in the next 24 months. Both of them did not rule psychiatric treatment out. Given the extent of the Applicant’s problems that have been extensively recorded, it seems illogical, or perhaps unlikely, to reach a conclusion that psychiatric treatment would not be undertaken. To do otherwise would not exhaust all of the Applicant’s possible treatment options and maximise the potential treatment outcomes.
[54] The Bender report warrants several comments. Associate Professor Mendelson observes that her diagnosis of “acute traumatic stress” is incorrect. He also concluded that given the Applicant left Kuwait in 2002 he would not have described him in 2010 as experiencing manifestations of acute traumatic stress. He concluded that the Bender report does not support the view that, at the time, the Applicant had clinically significant depressive symptoms, and the report did not refer to the diagnosis of any type of depressive disorder (which it will be recalled was one of the conditions that the Applicant relied upon in his claim for the DSP).
[55] The Tribunal also observes that the Bender report was not produced specifically for this application. We do not know what she was specifically asked to do when preparing that report. Also, and importantly, in the context of this application she recommended in a very general sense that the Applicant required ongoing attention for his mental health issues. She did not identify what that ongoing attention was and how such attention might be specifically designed to address each of the mental health issues in contemplation. Additionally and critically, she did not rule out or even make any comment on whether or not the Applicant should consult a psychiatrist which one would have expected given the history that the Applicant recounted to her. Therefore, the Tribunal cannot accept that this report supports the contention that the Applicant’s conditions have been fully treated and stabilised.
[56] As noted above, the Tribunal has considered the contents of the Joubert report. The Tribunal considers that, at the very least, this report does not support a contention that the Applicant’s conditions have been fully treated and stabilised. Professor Mendelson opines in his report that it does not provide an adequate basis for the diagnosis of any specific depressive disorder or any specific type of anxiety disorder. The Tribunal also observes that the Joubert report itself, on a careful reading, does not conclude that the Applicant’s conditions have been fully treated and stabilised.
[57] As noted earlier in these reasons Joubert recommends no less than eight strategies and interventions which may assist and continue to be used towards constructive outcomes for addressing the Applicant’s conditions. No time limit was put on how long the implementation of these strategies and interventions would require to achieve an improvement in the Applicant’s condition. The author considered that with ongoing treatment and support, the Applicant may potentially reach a level of social functioning that would enable him to integrate effectively. The precise details of such anticipated treatment and support were not identified. Critically, the conclusion of Associate Professor Mendelson that psychiatric intervention as he recommended would have led to a significant amelioration of the Applicant’s symptoms, even if full remission had not been achieved, was not ruled out in the Joubert report. Finally, as also noted earlier, the Joubert report was not prepared for the purposes of this application, and we do not know specifically what the author was requested to do. Once again, although not specifically referred to in the HPAU report; for the purposes of completion, there is nothing in the Joubert report that would enable a conclusion to be reached that the Applicant’s condition was fully diagnosed, treated and stabilised.
[58] The reports of Dr Witt referred to above have been considered. The April 2014 and June 2015 reports concluded with a similar language used by the author that, given the chronicity and complexity, his psychological condition is unlikely to resolve spontaneously in the near future and requires long-term counselling and assistance. Precise details or a prescription of what exact counselling and assistance the Applicant required was not identified in either of those reports. Given the relative severity of the language used to describe the conditions in those two reports it seems inconceivable that psychiatric intervention would not form part of the assistance he required at that time, including the relevant date for the purposes of this application. Additionally, the author does not discuss whether that assistance may require medication which it will be recalled was touched on by Dr Olszewski and to a limited extent by Dr Witt. Obviously, if that were to be the case this could only be prescribed by a qualified medical practitioner, most likely a consulting psychiatrist given the nature of the medication used to treat such afflictions. Also, Dr Witt does not specifically rule out psychiatric treatment as an option. The report of Dr Witt prepared in July 2015 as noted earlier observed that the applicant was experiencing worsening pain levels and cognitive distractibility and recommended continued treatment to reduce symptoms to acceptable levels and prevent relapse. These observations are inconsistent with the Applicant’s conditions being fully treated and stabilised.
[59] Finally, as noted above, these reports appear to have been prepared predominantly for the purposes of providing assistance to the Applicant when he was seeking special consideration with respect to payment of outstanding fines. Associate Professor Mendelson in his report observes that Dr Witt’s report of 16 June 2015 opined that the various infringements were due to the Applicant’s high clinical levels of depressive, anxiety and stress levels as well as severe and chronic PTSD in the context of his past traumatic experiences. He observed that given that by June 2015 the Applicant had successfully completed studies with a degree of a Bachelor of Engineering at Deakin University it was not clear to him how Dr Witt could have had a proper basis, or foundation for the conclusion that the Applicant’s failure to meet day-to-day obligations in relation to car use and resultant infringements could be excused by the emotional factors identified in that letter. It is a contention accepted by the Tribunal, which further provides a basis for the Tribunal preferring the opinions expressed by Associate Professor Mendelson both in his report and from the witness box over the reports of Dr Witt.
[60] As foreshadowed earlier in these reasons, Associate Professor Mendelson did make some further pertinent observations concerning both reports prepared by Dr King. Concerning the first report of 28 April 2017, he stated that he was not able to identify in that report any mention of whether or not the “psychometric” tests administered by him included some scales that assist response validity. He opined that if it was considered by Dr King that the Applicant’s cognitive ability had deteriorated to a clinically significant extent then he should be assessed by a clinical neuropsychologist. If Dr King’s opinion was confirmed then appropriate investigations should be arranged by a neurologist or a neuropsychiatrist, to exclude a potentially reversible organic cause for such deterioration. Once again, this is powerful evidence from a highly qualified medical professional suggesting that further investigations should be carried out by no less than two separate specialists if there had been deterioration in cognitive ability. Given this opinion the Tribunal does not find firstly, that Dr King’s first report of 28 April 2017 could enable a conclusion to be drawn that the Applicant’s conditions had been fully treated and stabilised as at July 2015, and secondly, they indicate that more probably than not the Applicant’s conditions had deteriorated and warranted further investigation. This is another reason for concluding that such conditions had not been fully treated and stabilised in the relevant sense for the purposes of this application.
[61] Whilst it was prepared in 2019, the report of Kimpton does shed some light on the Applicant’s ongoing mental health conditions during the qualification period. Kimpton was the only psychologist who identified a series of tests that he administered to diagnose or identify the conditions from which the Applicant suffers.24 Once again, as noted above, the author without any hesitation expressed a clinical opinion that ten calendar sessions a year with a psychologist was grossly inadequate to meet the Applicant’s needs. It must be repeated he considered the current psychiatric assessment and ongoing management were required. He differs from the other psychologists in unreservedly stating that further psychological intervention could only be an adjunct, and not an alternative to, a psychiatrist being involved. It is also important to note that in reaching this conclusion Kimpton observed that the Applicant has seen numerous psychologists since being granted residency in Australia. Therefore, if consultations with those numerous psychologists have not worked, his professional opinion is that psychiatric intervention was essential. The Tribunal infers that this situation, whilst current in April 2019, was more probable than not, also the case as at 10 July 2015.
[62] By way of conclusion, the Tribunal should make several other comments on why it prefers the opinions expressed by Associate Professor Mendelson both in his report, and oral evidence given to the Tribunal. As noted above, and for the reasons outlined there, the report was prepared specifically for the purposes of this application, after a detailed letter of instruction was given to him with a vast array of reports and other material. Associate Professor Mendelson also as noted previously, is a vastly experienced consultant psychiatrist of very high esteem. His evidence in the witness box was given professionally and impartially, understanding that his obligations as an expert witness were to the Tribunal not to the party calling him. He was an impressive witness. In both his report and his oral evidence he provided rationally based reasons for reaching the conclusion he did, that he considered the Applicant had not received optimum treatment for his conditions.
[63] Associate Professor Mendelson concluded that optimum treatment in psychiatric terms involves a combination of medication and psychological therapies. He reached his conclusions also after considering established professional literature and guidelines which in his undoubted experience provided an appropriate basis for consideration of the optimum level of treatment within the requirements of the Act and the Impairment Tables. He also considered the other experts’ reports and explained why he disagreed, or otherwise differentiated from them, and the conclusions reached in them. After explaining with appropriate reasons, why he recommended a course of treatment, he opined that he would have expected such treatment to have led to significant amelioration of symptoms even if full remission had not been achieved. Importantly, he considered such recommendations to be further reasonable treatment. As described by him, the Tribunal finds the recommendation of psychiatric intervention and referral to the Psychological Trauma Recovery Centre at Austin Health is “reasonable treatment” available to the Applicant within the meaning of Clause (7) of the Impairment Tables. When an eminent consultant psychiatrist such as Associate Professor Mendelson expresses this opinion it is difficult to see why it should not be accepted. There is also really nothing in the other material in evidence before the Tribunal (or for that matter that emerged in cross examination of him) which strictly poses a challenge to his recommendations. For these reasons, the Tribunal prefers them over any other opinions that have been expressed, including insofar as they conflict with those reports of Bender, Joubert, Dr Witt and the contents of the HPAU.
[64] By reason of the foregoing matters the Tribunal finds that the Applicant’s anxiety and depression had not been fully treated and stabilised as at 10 July 2015.
[65] If indeed the Applicant’s anxiety and depression or other mental health conditions were fully treated and stabilised as at 10 July 2015 (which the Tribunal has found that they were not) it is appropriate to consider whether such a permanent condition has resulted in functional impairment by applying “Table 5 — Mental Health Function” of the Impairment Tables. Table 5 directs attention to whether, and if so the extent to which, a person has a permanent condition resulting in functional impairment due to a mental health condition. The tables are function based rather than diagnosis based in that they describe functional activities, abilities, symptoms and limitations. They assign ratings to determine the level of a person’s impairment by reference to the functional impact of that impairment. That is, the impact that the impairment has on a person’s ordinary function.25
[66] The descriptors contained in Table 5 of the Impairment Tables and their application to the Applicant will be considered. There are four applicable point ratings namely; zero (There is no functional impact on activities involving mental health function), five (There is a mild functional impact on activities involving mental health function), 10 (There is a moderate functional impact on activities involving mental health function) and 20 (There is a severe functional impact on activities involving mental health function). In performing this task the Tribunal must make a comparison of the descriptors at each level. In determining the applicable rating it is necessary for the person to have difficulties in the relevant sense with most of the descriptors. As there are six descriptors it would be necessary to have difficulties with at least four of those six.
[67] The several reports relied upon by the Applicant which were in evidence before the Tribunal and referred to earlier in these reasons, did not specifically address the application of Table 5 and the descriptors contained therein. It is necessary therefore, for the Tribunal to examine those reports together with the other evidence before the Tribunal and determine whether they address the descriptors contained in Table 5 and enable an application of them to the Applicant’s condition.
[68] Associate Professor Mendelson in Appendix A to his report26 considered each of the descriptors and the points that he applied to them when assessing the Applicant’s level of psychiatric impairment as at 10 July 2015 in accordance with Table 5.
[69] The first activity identified in Table 5 is “(1)(a) self-care and independent living”. The evidence available to the Tribunal suggests that the Applicant had no difficulties with self-care and independent living in the relevant period. In particular, the information provided by the Applicant’s treating general practitioner Dr Olszewski to an officer of the Respondent on 10 June 201527 corroborates this fact. Dr Witt also confirmed in her discussion on 29 June 2015 with an officer of the Respondent that the Applicant did not require regular support to live independently.28
[70] A fax on 17 May 2017 (“the 17 May 2017 fax”) from Dr Olszewski and Mr Fisicaro, a psychologist, confirmed that in May 2016 that the Applicant did not require regular support to live independently. It further confirmed that nothing had changed concerning that matter as at that date.
[71] The Applicant informed Associate Professor Mendelson in reply to a question about chores such as shopping, cooking, cleaning and washing that he carries them out to the best of his ability. He did not acknowledge to Associate Professor Mendelson requiring any assistance to perform those functions. Presumably, if he did require assistance he would have said so.
[72] Associate Professor Mendelson ascribed a zero point rating to this activity.
[73] The second activity identified in Table 5 is “(1)(b) social/recreational activities and travel.” Dr Olszweski, in the telephone conversation he had with an officer of the Respondent on 10 June 2015, stated that the Applicant was capable of travelling alone outside of familiar areas. This was also confirmed by Dr Witt in her telephone conversation with the officer of the Respondent on 29 June 2015. There was also considerable evidence before the Tribunal of a number of overseas trips taken by the Applicant on his own, including a trip to Thailand in 2014 and 2015.29 The Applicant conceded this in his oral evidence.
[74] Dr Olszweski, in the 17 May 2017 fax, also confirmed that the Applicant was capable of travelling alone outside of familiar areas in May 2016 and May 2017.
[75] The Applicant gave a history of overseas travel to Associate Professor Mendelson. That travel history included from 2011 to the Russian Federation and the Republic of China as part of his studies at Deakin University. He also made references to travel in Malaysia, Singapore, Hong Kong and Thailand on a number of occasions in search of medical treatment for the management of his spinal condition. Associate Professor Mendelson concluded that the Applicant, as at 10 July 2015, and over the preceding 18 months, did have the capacity for social and recreational activities and travel. He assigned a zero point rating to this activity.
[76] The Applicant’s evidence when this was put to him in cross examination was to assert that he did travel with others. When he was probed on this issue, it was revealed the others were airline staff or other passengers who provided assistance to him at various locations on where to go. He also sought to emphasise that several of the destinations referred to previously were as a transit passenger. Overall, the Tribunal was unimpressed with the Applicant’s evidence on this topic. It seemed that he was attempting to colour, or downplay the fact that he had the capacity to travel quite independently all over the world.
[77] For these reasons the Tribunal applies a zero point rating to this activity.
[78] The third activity identified in Table 5 is “(1)(c) interpersonal relationships.” There was very little evidence before the Tribunal concerning this descriptor. Dr Witt, in her comments to the member of the HPAU, advised that the Applicant referred to doing things by himself and that he was adjusting the times when he went out. She did not say whether he had any real difficulty in forming and sustaining relationships as contemplated by any of the examples contained in the annotations to this descriptor in Table 5. For instance, no one has suggested in the material that the Applicant has interpersonal relationships that are strained with occasional tension or arguments that would attract a five point rating under Table 5.
[79] Associate Professor Mendelson noted that he was informed by the Applicant that he has not been married, does not have children, lives alone, and is not involved in any current relationship. Associate Professor Mendelson felt that if it were accepted as at 10 July 2015 the Applicant had difficulty in making and keeping friends, or sustaining relationships, due to what had been referred to in the material as a “loss of trust” associated with PTSD, it would attract an impairment of 10 points. This premise cannot be accepted by the Tribunal. Apart from the absence of material in the various reports from healthcare professionals as noted above, the Applicant in his evidence before the Tribunal did not give real evidence of any difficulties with interpersonal relationships either in forming them or sustaining them. The high point of his evidence was that he said his mental health conditions affected his ability to keep relationships and deal with people.
[80] However, this was inconsistent with some of the other evidence noted above and also the 17 May 2017 fax, which Dr Olszewski recorded that in May 2016 and until that date the Applicant was not actively involved socially and prefers his own company. That was still the case as at 17 May 2017 and nothing had changed between the two dates. For the reasons identified above the Tribunal prefers what is recorded by the medical health professionals and others in contemporaneous documents to the scant evidence given by the Applicant at the hearing. It seems that overall the Applicant was not inclined to interact as much as others might. That is a matter of his choosing. It will be recalled of course that under Clause 6 (1) of the Tables (“Applying the Tables”) the impairment of a person must be assessed on the basis of what the person can do, or could do, not on the basis of what the person chooses to do.
[81] For these reasons the Tribunal applies a zero point rating to this activity.
[82] The fourth activity identified in Table 5 is “(1)(d) concentration and task completion.” There was quite some mixed evidence concerning this descriptor.
[83] Dr Olszewski in his telephone conversation with an officer of the Respondent on 10 June 2015 stated that the Applicant was capable of concentrating for more than 10 minutes. He further advised that he was able to study, although his effectiveness was problematic at times.
[84] Dr Olszweski in the 17 May 2017 fax also confirmed that the Applicant was able to concentrate on a task for more than 10 minutes in May 2016 and May 2017.
[85] Dr Witt, in her conversation with an officer of the Respondent on 29 June 2015, also confirmed that the Applicant was most probably capable of concentrating for more than 10 minutes. She did note however that more recently the Applicant had informed of not being able to concentrate on studying for more than one hour per day which she concluded could be indicative of a diminished concentration level. She observed further, that his capacity to concentrate fluctuated depending on what is happening with his life.
[86] As at 10 July 2015 the Applicant had recently completed an engineering degree at Deakin University. A letter was produced from the Chief Executive Officer (CEO) of an engineering company Marrdrake Pty Ltd on 27 October 2015 which commented on some quite sophisticated work that the Applicant had been carrying out on an engine and cowl support pylon. The author stated this demonstrated that the Applicant’s level of comprehension and communication skills were excellent. These observations from an independent third party can only be described as a glowing endorsement. In the face of this observation, fairly close to the relevant period, it seems very difficult to conclude that the Applicant would have had much difficulty concentrating at that time.
[87] Another relevant factor in the consideration of this descriptor is the fact that upon completion of the Bachelor’s degree in engineering by the applicant he enrolled in a Masters course in 2016 and subsequently transferred to a PhD. It seems unlikely that the Applicant would have been permitted to transfer if his concentration was sufficiently impaired in the way that he would assert.
[88] Another factor that should also be considered is the fact that Associate Professor Mendelson in Appendix A to his report for the reasons described assigned a zero point rating to this descriptor. The Tribunal agrees with that assessment.
[89] The fifth activity identified in Table 5 is “(1)(e) behaviour, planning and decision-making.” Overall, the evidence concerning this descriptor does not indicate that the Applicant suffers from a functional impact on this activity.
[90] Dr Olszewski, in his telephone conversation with an officer of the Respondent on 10 June 2016, did not offer any opinion on this descriptor whatsoever.
[91] Dr Witt, in her telephone conversation with an officer of the Respondent on 29 June 2015, described the Applicant’s behaviour and decision-making as well-intentioned, spontaneous and reactive to pain. She stated that his goal was to finish his study and to obtain employment.
[92] Again, the letter from the CEO of Marrdrake Pty Ltd corroborates that it seems that the Applicant had no significant difficulties in behaviour, planning or decision-making. The author of that letter, apart from stating that his levels of comprehension and communication skills were excellent, observed that the Applicant was carrying out CAD work on an engine cowling and support pylon accurately and concisely. He further stated that he had proven his ability for attention to detail and his work ethic. That company has requested the Applicant to continue to the completion of the structural design of the engine support pylon with the hope that he would continue to be associated with it. Once again, the descriptions in this letter are hardly applicable to someone who has any difficulties in behaviour, planning or decision-making.
[93] Associate Professor Mendelson in his consideration of the material on this descriptor gave it a zero point rating. He reached this conclusion because there was no indication on the material available that the Applicant’s behaviour had at any time been disturbed or socially unacceptable. Associate Professor Mendelson also observed that the Applicant is clearly capable of planning and decision-making, as evidenced by having successfully planned his numerous overseas trips, and also his study program in relation to tertiary qualifications that he had obtained prior to 10 July 2015.
[94] The Tribunal agrees that this descriptor should attract a zero point rating.
[95] The sixth activity identified in Table 5 is “(1)(f) work/training capacity.”
[96] Once again the evidence concerning this descriptor is somewhat limited as Dr Witt observed earlier, stating the Applicant’s goal was to finish his study and obtain employment. She also described him as self-directed and committed.
[97] Again, the contents of the letter from the CEO of Marrdrake Pty Ltd are referred to and repeated. When one considers the contents of that letter alone it demonstrates an excellent work and training capacity. The Tribunal does not see any reason to doubt that the author of that letter was genuine and sincere and the observations he made of the Applicant. The last sentence of the letter really speaks for itself: “I give him my highest recommendation”.
[98] Associate Professor Mendelson when assessing this activity observed that as at 10 July 2015 the Applicant had recently completed studying for a Bachelor of Engineering degree at university earlier in 2015. He had during 2016 enrolled for a Master’s degree. Based upon these facts he concluded that the Applicant did have training capacity within the language used in that descriptor of Table 5 as at 10 July 2015.
[99] The Tribunal agrees and assigns a zero point rating to this descriptor.
[100] By reason of the foregoing matters the Tribunal finds that there is no functional impact on the activities (or descriptors) involving mental health function identified in Table 5.

Professor Mendelson stated that in his opinion, as at 10 August 2017, that Mr Sesalim likely did have symptoms consistent with PTSD. The evidence was that Mr Sesalim had not undertaken optimal treatment for PTSD by 10 August 2017 and had never received treatment for this condition under the care of a psychiatrist. Professor Mendelson considered that treatment in a tertiary institution, under the care of psychiatrists and psychologists with training and expertise in the diagnosis and management of PTSD, would have led to significant amelioration of symptoms, even if full remission had not been achieved. Therefore, it was his considered opinion, consistent with his report, that the PTSD suffered by Mr Sesalim had not been fully assessed or diagnosed, and not optimally treated and stabilised, as at 10 July 2015 and 10 August 2017.
Professor Mendelson explained from the witness box that optimum treatment in psychiatric terms involves a combination of medication and psychological therapies. He explained that if he makes a diagnosis of PTSD, then depending on the nature of the symptoms and severity, the treatment may include medication. There are a range of medications available for the treatment of PTSD including first-line and second-line medications. If after use of first-line medications the patient fails to improve, or they are not able to tolerate them because of side-effects, then there are second-line medications. These second-line medications are used less frequently but have been shown to be effective. This is then combined generally with psychological treatment in an appropriately supported setting, sometimes as an inpatient. Professor Mendelson emphasised the treatment is tailored to the individual depending on the nature of the symptoms and their severity.
Mr Sesalim said he had been given medication to ease his symptoms. Most of the medication did not have any effect, and those that did caused other symptoms such as excessive nauseous and dizziness. However, it appears that the medication concerned was clearly not prescribed by a psychiatrist adopting the approach recommended by Professor Mendelson, which was to use first-line and second-line medication if necessary.
In Appendix A of his report,[3] Professor Mendelson, applying the Impairment Tables as at 10 August 2017, expressed the opinion that Mr Sesalim met the criteria for zero impairment points under Table 5. The Tribunal accepts this opinion of Professor Mendelson.
[3] T-Documents, Document T132 ‘Report: A/Professor Mendelson(psychiatrist)’ dated 15 March 2019.
Professor Mendelson noted that Mr Sesalim, as at 10 August 2017, was working towards a PhD in Engineering at Deakin University. Therefore, he opined, any functional impairment resulting from his mental health condition did not prevent him from undertaking work of at least 15 hours per week within two years of 10 August 2017; or from undertaking a training activity that would equip him to work at least 15 hours per week within two years of 10 August 2017.
For the reasons articulated in the 2020 matter, the Tribunal sees no reason not to continue to accept the evidence of Professor Mendelson and the opinions expressed in his report about Mr Sesalim’s condition as at 10 August 2017.
The Tribunal also reiterates its observations made in the extract from the 2020 matter concerning the report of 23 April 2019 from a psychologist, Mr Kimpton. Mr Kimptom considered that psychiatric intervention was essential. This would include a psychiatric assessment and likely ongoing management. This conclusion accords with that of Professor Mendelson.
The Tribunal observes that Mr Sesalim also consulted the Psychological Trauma Recovery Service at Austin Health. This was the facility that Professor Mendelson recommended, in his report and from the witness box, that Mr Sesalim consult. They advised that they were unable to assist him and recommended him to several PTSD-specific private psychiatrists who may be able to assist him.[4] Mr Sesalim stated that these psychiatrists would not treat him as a bulk-billing patient. The Tribunal can understand the position adopted by

Mr Sesalim
. However, it does not detract from the fact that as at 10 August 2017,

Mr Sesalim
’s mental health conditions were not fully treated and stabilised. It shows that other treatment options were still available, which were likely to lead to an improvement in these conditions.
[4] An email of 3 May 2019, from Rachel Lim a psychologist at the Psychological Trauma Recovery Service of Austin Health was in evidence before the Tribunal.
For these reasons the Tribunal finds that the psychiatric conditions of anxiety, depression and/or PTSD suffered by Mr Sesalim were not fully treated and stabilised as at 10 August 2017.
Cervical Canal Stenosis
With respect to Mr Sesalim’s cervical canal stenosis, it should be recalled that no additional medical evidence or evidence from other healthcare practitioners has been tendered to what was in evidence in the 2020 matter. The Tribunal refers to and repeats the contents of paragraphs 101 to 129 of its reasons in the 2020 matter, concerning Mr Sesalim’s condition of cervical canal stenosis. They need not be reproduced.
The Tribunal considers that the conclusions reached in the 2020 matter equally apply to the cancellation date for the purposes of these applications, namely 10 August 2017. This is particularly because the evidence indicates that, as at the cancellation date, Mr Sesalim’s spinal condition was subject to ongoing monitoring and surveillance, particularly by yearly examinations and MRIs which are indicative of a lack of stabilisation at that time and the condition having not been fully treated. Therefore, such condition was not fully treated and stabilised as at 10 August 2017.
Dr Dawes’ report of 19 February 2019, as noted in the reasons of the 2020 matter, recorded that an MRI had revealed multilevel degenerative changes and cervical canal stenosis. There is no evidence that these multilevel degenerative changes have stabilised or will not continue to progress as they appear to have done. Certainly, there is no medical evidence to suggest that the condition has fully stabilised.
The Secretary also identifies several other facts that enable a conclusion to be reached that Mr Sesalim’s condition of cervical canal stenosis was not fully treated and stabilised as at the cancellation date. They are:
(a)Dr Lim on 14 April 2016 referred him for a neurological assessment due to reported worsening symptoms;
(b)a Job Capacity Assessment report of 5 August 2016 reported that he was undergoing physiotherapy, a daily exercise regime, Thai traditional medicine, massage and acupuncture by way of treatment. It also recorded that he was awaiting a neurological referral, and the start of a pain management clinic program at the Austin Hospital;
(c)on 12 October 2016 he had an MRI of the cervical spine which indicated moderate central canal narrowing resulting in cord compression at C 4/5 and C 5/6 (this should be compared with Dr Dawes’ report, referred to in paragraph 34, which recorded multilevel degenerative changes);
(d)on 14 December 2016 Mr Sesalim gave evidence to this Tribunal that an appointment to see a neurosurgeon had been arranged for March 2017, in response to Dr Lim’s referral of 14 April 2016; and
(e)
in a Job Capacity Assessment report of 24 May 2017, it was recorded that

Mr Sesalim had been referred to the pain management clinic at the Austin Hospital. (There was no evidence before the Tribunal the Mr Sesalim attended the clinic. However, it demonstrated that there was another treatment option available for this condition.)
These facts do indeed provide further evidence that the condition of cervical canal stenosis was not fully treated and stabilised. It demonstrates that the condition was likely to continue to deteriorate, and that other treatment options did exist.
For the reasons given in the 2020 matter, the Tribunal also finds as at 10 August 2017 it can only assign an impairment rating of 5 points under Table 4 for mild functional impact.
Something should briefly be said about the question of unlimited portability. As Mr Sesalim does not have 20 points or more under a Single Impairment Table for either of his conditions, he does not have a severe impairment within the meaning of section 1218AAA (1)(b) of the Act.
As the Tribunal has found that Mr Sesalim does not qualify for the DSP as at the date of cancellation relevant to these applications, namely 10 August 2017, no question of indefinite portability arises.
CONCLUSION AND DECISION
By reason of the foregoing;
(a)
in application 2017/6422, the reviewable decision made on 28 September 2017 is set aside and in substitution the Tribunal decides that on 10 August 2017

Mr Sesalim did not satisfy the requirements of sections 94(1)(b) and (c) of the Act and therefore did not qualify for the DSP; and
(b)
in applications 2018/0843 and 2018/1134, the Tribunal decides to set aside the reviewable decision dated 6 February 2018 and in substitution decides that on

10 August 2017 Mr Sesalim did not satisfy the requirements of:
(i)sections 94(1)(b) and (c) of the Act and therefore did not qualify for the DSP; and
(ii)section 1218AAA of the Act and therefore, was not eligible for unlimited portability of the DSP.

40. I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....[sgd].............................................
Associate
Dated: 22 December 2021

Dates of hearing: 4 October 2021

Applicant:

Advocate for the Respondent:

Self-Represented

Nam Nguyen

Solicitor for the Respondent: Sparke Helmore