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

[2020] AATA 11

Sisalem and Secretary, Department of Social Services (Social services second review) [2020] AATA 11 (8 January 2020)

Division:GENERAL DIVISION

File Number:          2015/4791

Re:Aladdin Sisalem

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:R CAMERON SENIOR MEMBER

Date:8 January 2020

Place:Melbourne

The Tribunal affirms the decision under review.

..........[sgd]..............................................................
R CAMERON SENIOR MEMBER

Catchwords

SOCIAL SECURITY – disability support pension – whether qualified – whether entitled to unlimited portability - impairment tables – conditions fully diagnosed – conditions not fully treated and stabilised during qualification period – decision affirmed

Legislation

Social Security Act 1991

Social Security (Administration) Act 1999

Cases

Sesalim v Secretary, Department of Social Services [2018] FCA 1159

Secondary Materials

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

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

8 January 2020

INTRODUCTION

1. This is an application for review of a decision of the Social Services and Child Support Division of this Tribunal (“AAT1”) made on 1 September 2015 affirming a decision of an Authorised Review Officer (ARO) of the Respondent to cancel the Applicant’s Disability Support Pension (“DSP”) (“the reviewable decision”).

   THE EVIDENCE BEFORE THE TRIBUNAL

2. There was both oral and documentary evidence before the Tribunal.

3. The Applicant and a consultant psychiatrist, Associate Professor George Mendelson, gave oral evidence.

4. The following documentary evidence was tendered:

   (a)A bundle of documents tendered by the Applicant.[1]

   (b)Written submissions of the Applicant.[2]

   (c)Report of Associate Professor Mendelson.[3]

   (d)Section 37 documents lodged with the Tribunal 13 October 2015.[4]

   (e)Supplementary section 37 documents lodged with the Tribunal on 15 December 2015.[5]

   (f)Supplementary combined documents comprising 237 pages.[6]

   (g)Bundle of selected section 37 documents provided by the Respondent during cross-examination of the Applicant.[7]

   [1] Exhibit "A 1".

   [2] Exhibit "A 2".

   [3] Exhibit "R 1".

   [4] Exhibit "R 2".

   [5] Exhibit "R 3.

   [6] Exhibit "R 4".

   [7] Exhibit "R 5".

   THE REGULATORY FRAMEWORK

5. For the purposes of this application the essential features of the regulatory framework governing an entitlement to the DSP should be noted.

6. The starting point is to note that the applicable statutory provision is section 94 of the Social Security Act 1991 (“the Act”) which provides:

   1A person is qualified for disability support pension if:

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

   (c)one of the following applies:

   (i)     the person has a continuing inability to work;

   (ii)    the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;

7. These requirements are conjunctive and each one of them must be satisfied in order for the Applicant to qualify for the DSP.

8. The applicable Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (The Impairment Tables) contain descriptors which identify functional activities, abilities, symptoms and limitations.[8] They are designed to assign ratings to determine the level of functional impact of impairment. Section 6 “Applying the Tables” provides the decision-maker with the framework for their application. Section 6 need not be reproduced, however, it requires that an impairment rating can only be assigned if the condition is permanent (Section 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 (Section 6 (4)).

   [8] As was noted by Bromberg J in a previous appeal concerning this matter.

9. As the notes to subsection (4) of the Impairment Tables state, subsections (5) and (6) define when a condition is fully diagnosed, fully treated and fully stabilised for the purposes of the definition of “permanent” as follows:

   Fully diagnosed and fully treated

   5In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6 (4) (a) and (b), the following is to be considered:

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c) whether treatment is continuing or is planned in the next 2 years.

   Fully stabilised

   6For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is

   fully stabilised if:

   (a)(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)(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.

   Note: For reasonable treatment see subsection 6(7).

   Reasonable treatment

   7For the purposes of subsection 6 (6), reasonable treatment is treatment that:

   (a)is available at a location reasonably accessible to the person; and

   (b)is at a reasonable cost; and

   (c)can reliably be expected to result in a substantial improvement in functional capacity; and

   (d)is regularly undertaken or performed; and

   (e)has a high success rate; and

   (f)carries a low risk to the person.

   SECTION 80 CANCELLATION OR SUSPENSION DETERMINATION

10. Finally, section 80 of the Social Security (Administration) Act 1999 gives the power to cancel or suspend a person’s payment if they no longer qualify for their relevant security payment.

    1If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:

    (a)who is not, or was not, qualified for the payment; or

    (b)to whom the payment is not, or was not, payable;

    the Secretary is to determine that the payment is to be cancelled or suspended.

    SECTION 1218AAA UNLIMITED PORTABILITY PERIOD FOR DISABILITY SUPPORT PENSION-SEVERELY IMPAIRED DISABILITY SUPPORT PENSIONER

    1The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:

    (a)the person is receiving disability support pension;

    (b)the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94 (3B);

    (c)the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;

    (d)the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94 (4)) within the next 5 years.

11. All of the “circumstances” identified in section 1218AAA of the Act must be satisfied before the discretion to grant a person unlimited portability of his DSP can be exercised.[9]

    [9] See Chang v Secretary, Department of Social Services [2013] AATA 772 at [31] to [34] and Morton v Secretary, Department of Social Services [2014] AATA 949 at [47].

12. Subsection 94 (3B) of the Act provides that a person has a “severe impairment” if they have been assigned 20 points or more under a single Impairment Table.

    ISSUES FOR DETERMINATION BY THE TRIBUNAL

13. The issues for consideration by the Tribunal are:

    (a)Whether or not the Applicant qualified for the DSP on 10 July 2015; and

    (b)

    Whether the Applicant was entitled to unlimited portability on and from

    
    

    10 July 2015.

    BACKGROUND FACTS

14. The Applicant was granted the DSP on or about 20 January 2014.

15. The Respondent on 20 April 2015 served a notice under section 63 of the Social Security (Administration) Act 1999[10] on the Applicant, namely “Medical Report Disability Support Pension Review for portability”. This document was in two parts. “Section A” which required completion by the Applicant.[11] “Section B” required completion by the Applicant’s treating doctor.[12]

    [10] The provisions of section 63 need not be reproduced in full in these reasons. The section empowers the Secretary to give notice to a recipient of a DSP (amongst others) to provide information, undergo a medical examination or attend the Department.

    [11] He did so on 20 April 2015. It is document T 20 in the T documents.

    [12] Specific details of the completed "Part B" are referred to later in these reasons.

16. On 10 July 2015 the Applicant’s DSP was cancelled on the grounds that he was no longer eligible due to being assessed as having a rating under the Impairment Tables of less than 20 points.[13] An ARO affirmed the decision to cancel the Applicant’s DSP on             16 July 2015.[14] The findings of the ARO were affirmed in the reviewable decision as noted above.

    [13] The letter of cancellation of 10 July 2015 is document T 27 of the T documents.

    [14] The decision of the Authorised Review Officer is document T 30 of the T documents.

17. By way of a letter dated 13 July 2015 the Applicant was advised by the Respondent that because a medical review had resulted in the cancellation of his DSP, he was not eligible for indefinite portability of it under section 1218AAA of the Act.[15]

    [15] The letter of 13 July 2015 from the Respondent to the Applicant is document T 29 of the T documents.

    SOME OBSERVATIONS ON THE APPLICANT’S EVIDENCE

18. The Tribunal considers it appropriate to make some observations about the evidence given by the Applicant from the witness box. The Applicant is an intelligent man.     Despite the fact that an interpreter was present, he presented as someone who had an extremely good command of the English language. Additionally, the Applicant was an individual who was acutely aware of protecting his own interests at all times. This indeed, was evident from his own life story which is in many respects quite remarkable.        Having endured the vicissitudes of the first Gulf War, the discrimination that his people suffered in its aftermath, his subsequent escape from Kuwait, perilous overland and sea journey, ultimately arriving in Australia, is an ample testament to his personal skills.

19. Unfortunately, he did not present as a particularly good witness. On many occasions when a proper question was put to him his response was to assert that he did not understand the question when it was perfectly comprehensible, or to answer the question of the cross examiner with a question when it was just not called for.

20. On several occasions he boldly gave evidence that the contents of previous decisions of the Tribunal were factually inaccurate.

21. He also stated that the contents of a fax message signed by Dr Chris Olszweski on

    
    

    17 May 2017 were inaccurate.[16] He was bold enough to say that the doctor completely misunderstood what he was required to do. He stated that the doctor was tricked by the letter. He stated that the doctor completed the fax in a hurry and was not focusing on what he was required to do. This explanation was completely and utterly disingenuous.        The Tribunal does not accept this. The fax concerned recorded what had been stated by Dr Olszweski to the Respondent in May 2016 and sought confirmation whether or not it was still the case concerning four of the Descriptors in Table 5 of the Impairment Tables as at that date in May 2017. To assert that Dr Olszweski misunderstood what he was required to do or was in some way tricked is simply not correct and to give such evidence reflects extremely poorly on the Applicant and his credibility.

    [16] The fax formed part of exhibit "R 5" and was marked "T 92".

22. The Applicant also stated that Associate Professor Mendelson was wrong in his report where he recorded that the Applicant had told him that he was currently studying for a PhD. He went so far as to say that Associate Professor Mendelson misunderstood what he had said. Associate Professor Mendelson when in the witness box stated that those instructions were given to him in the course of the conference. The Tribunal accepts the evidence of Associate Professor Mendelson in its entirety. Lest it needs to be said, he is an esteemed and highly reputable medical professional who gave his evidence in a fair and impartial way, understanding fully his obligation to assist the Tribunal.

23. The Tribunal does not accept that on several occasions’ people of considerable standing and repute would have been capable of getting things so manifestly wrong. Therefore, the Tribunal reluctantly concludes that the Applicant is an unreliable witness. Where there is a conflict between a contemporaneous document and the Applicant’s evidence, the Tribunal prefers the evidence as recorded in the document unless otherwise stated.

    THE APPLICANT’S CONDITIONS

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

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.[17]

    [17] These concessions on the part of the Respondent were made both in its Statement of Facts, Issues and Contentions at paragraph 4.33, and in closing submissions to the Tribunal in particular at pages 83-84 of the transcript.

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.[18] 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.

    [18] A record of the telephone conversation is document T 22 of the T documents.

35. Another member of the HPAU spoke with a psychologist, Dr Gerke Witt, on         29 June 2015.[19] 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.

    [19] A record of that conversation is document T 20 of the T documents.

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.

1. 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.

2. Dr Witt prepared a report in or about 20 January 2014[20] 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.

   [20] The report of Dr Witt in 20 January 2014 is document T 6 in the T documents 5 in the tender bundle of documents submitted by the Applicant in evidence before the Tribunal. The date of the document is difficult to read if not illegible on the copy produced to the Tribunal.

3. Dr Witt prepared a further report on 16 June 2015[21] 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.

   [21] The report of Dr Witt dated 16 June 2015 is document 8 in the tender bundle of documents submitted by the Applicant in evidence before the Tribunal.

4. 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.[22] 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.

   [22] The report of Dr Witt of July 2015 is document 39 in the tender bundle of documents submitted by the Applicant in evidence before the Tribunal. It should be noted that this report together with the reports of Dr Witt dated 20 January 2014 and 16 June 2015 were furnished to Associate Professor Mendelson by the Respondent's lawyers in their letter of instruction to him prior to the preparation of his report of 15 March 29 which was in evidence before the Tribunal.

5. 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.

6. 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.

7. 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.[23] 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.

   [23] The report of Dr King dated 28 April 2017 is document 11 in the tender bundle of documents tendered by the Applicant in evidence before the Tribunal.

8. 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.

9. 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.

10. 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.

11. 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?

12. 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.

13. 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.

14. 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.

15. 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.

16. 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).

17. 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.

18. 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.

19. 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.

20. 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.

1. 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.

2. 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.

3. 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.

   [24] On the second page of the Kimpton report he states that he administered the Beck Anxiety Inventory (34), Beck Depression Inventory-11 (47), and the Beck Hopelessness Scale (18).

4. 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.

5. 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.

6. 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.

7. 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]

   [25] The consideration of this application of the Tables is derived from the observations of Bromberg J in Sesalim v Secretary, Department of Social Services [2018] FCA 1159 paragraphs [7] to [23].

8. 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.

9. 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.

10. Associate Professor Mendelson in Appendix A to his report[26] 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.

    [26] At page 34.

11. 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 2015[27] 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]

    [27] The record of the Telephone conversation with Dr Olsweski is document T 222 of the T documents.

    [28] The record of the Telephone conversation with Dr Witt is document T 24 of the T documents.

12. 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.

13. 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.

14. Associate Professor Mendelson ascribed a zero point rating to this activity.

15. 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.

    [29] The Applicant’s movement records for travel outside Australia were in evidence. In cross-examination he conceded that he travelled alone. That he booked the trips online, and that he went to the airport alone. He did seek to colour this evidence somewhat, by saying that he often travelled in the presence of other people. There was overall a pattern of overseas travel, frequently on his own, between 2010 and 2017. This was also confirmed to some extent in his evidence and the findings of AAT1 concerning this matter. The Respondent in paragraph 4.39 (f) of its Amended Statement of Facts, Issues and Contentions prepared a table showing 22 occasions on which the Applicant undertook overseas travel between 2002 and January 2019.

16. 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.

17. 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.

18. 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.

19. For these reasons the Tribunal applies a zero point rating to this activity.

20. 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.

21. 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.

22. 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.

23. For these reasons the Tribunal applies a zero point rating to this activity.

24. The fourth activity identified in Table 5 is “(1) (d) concentration and task completion.” There was quite some mixed evidence concerning this descriptor.

25. 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.

26. 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.

27. 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.

28. 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.[30] 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.

    [30] This letter was an attachment to the Respondent's Amended Statement of Issues, Facts and Contentions.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

1. 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.

2. 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.

3. The Tribunal agrees that this descriptor should attract a zero point rating.

4. The sixth activity identified in Table 5 is “(1) (f) work/training capacity.”

5. 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.

6. 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”.

7. 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.

8. The Tribunal agrees and assigns a zero point rating to this descriptor.

9. 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.

   Cervical Canal Stenosis

10. The Respondent has during the course of this application accepted that at the relevant date of 10 July 2015, the Applicant’s spinal condition of cervical canal stenosis had been fully diagnosed. It does not accept however that such condition has been fully treated and stabilised. The foundation for this submission is that there is an absence of evidence suggesting there had been any reasonable treatment of that condition as at that date.

11. The 20 April 2015 Medical report from Dr Olszewski identified the condition as being moderate to severe. The current treatment was identified as physiotherapy. The past treatment type was identified as “Conservative”. Specialist consultation was identified by a referral to St Vincent’s Hospital neurosurgery. Indeed a referral from Dr Olszewski to         St Vincent’s Hospital was in evidence before the Tribunal.[31] A date for a consultation with a neurosurgeon Mr Brendan O’Brien was fixed for 8 September 2015.[32]

    [31] It formed part of exhibit "R-5" and was marked with the number "C 30".

    [32] The letter of appointment with Mr O'Brien formed part of exhibit "R-5" and was marked with the number "T 61".

12. The current symptoms of the condition were described as neck pain and stiffness,      pain and tingling in both arms, decreased strength of arms shoulder and a restriction of movement with leg weakness. He was described as having long-standing pain and restriction of movement. He was said to be unable to sit for long periods, unable to stand, had difficulty in concentration and was experiencing chronic pain.

13. In the telephone conversation with a member of the HPAU on 10 June 2016,                   Dr Olszewski repeated that the Applicant was suffering from chronic pain and recommended “Thai Rehabilitation Therapy” as possibly alleviating his symptoms. It was noted he said those symptoms fluctuate in severity. Conservative treatment and physiotherapy were recommended. He also advised that the Applicant did not require regular support to live independently, that he was capable of travelling alone outside of familiar areas, and that he was capable of concentrating for more than 10 minutes.         He also advised that the Applicant was able to study, although his effectiveness was problematic at times.

14. Mr O’Brien’s report of 29 September 2015 is relatively close to the relevant date for the purposes of this application. The report commented on the results of an MRI scan of the brain and cervical region. It recorded that the Applicant had multilevel cervical spondylosis with disc protrusion. There was not any abnormal signal change in his spinal cord.      There was bulging of the discs at three levels. His recommendation was to continue with multimodality conservative care in regard to his cervical spondylosis. He did not believe it would be appropriate for the Applicant to undergo a two or three level anterior cervical discectomy and fusion. He suggested MRI scans on a 12 monthly basis. Beyond these observations there was no mention in such letter of the Applicant’s other symptoms and also no mention of clinical findings on any physical examination assuming that it had been undertaken by Mr O’Brien.

15. Dr Oehme, a Neurosurgery Registrar, prepared a report on 23 February 2016. The report recorded the Applicant having cervical spondylosis. It noted he had aches and pains, specifically neck pain and stiffness, with some bilateral arm paraesthesia, although it noted he was not significantly troubled by it. It was also noted that he does not have any significant cord compression and the spinal cord looked healthy at that point. Further, on examination he did not have any signs of cervical myelopathy. He recommended continued monitoring with a further appointment in one year for a repeat MRI scan.          No surgical intervention was recommended.

16. Dr Bryden Dawes, a Neurosurgery Registrar, prepared a report of 19 February 2019.                  He observed that the Applicant stated he had ongoing issues with chronic neck pain.       An MRI scan was undertaken which revealed multilevel degenerative changes and cervical canal stenosis at C 4-C 5, C 5-C 6 and C 6-C 7 with no cord signal change.        He concluded that at this stage, he is asymptomatic other than neck pain and his imaging remained stable. He offered ongoing surveillance in the setting of two yearly MRI scans or discharge for a review should he become symptomatic in the future.

17. These reports indicate that ongoing monitoring or surveillance of the Applicant’s condition was the most appropriate clinical approach to adopt on the relevant dates concerned, but in particular, on or about the time relevant to this application namely 10 July 2015. As was contended by the Respondent, the Applicant’s condition had not progressed to a stage where the doctors who conducted the several examinations of him reached the conclusion that there was nothing further that could be done in a clinical sense, such that it would be open to the Tribunal to accept that the condition had been fully treated and stabilised.

18. There was some consideration during the course of the application into the issue of physiotherapy. There is a report from a physiotherapist Ms Melissa Manuelpillai[33] recording that the Applicant first presented to her clinic on 31 March 2015 and stating that the Applicant had been managing his symptoms with regular stretching and a home exercise program.

    [33] The report of Ms Manuelpillai is document T 16 in the T documents and document 32 in the tender bundle of documents submitted by the Applicant in evidence before the Tribunal.

19. Another physiotherapy report from Ms Johanna Cross of 14 January 2016[34] described his case as complex with a lot of psychosocial contributing factors. The author recommended that the Applicant would benefit from being cared for under the guidance of a chronic pain specialist team. She did not specify in that report precisely what that term means. However, the Tribunal infers more probably than not, that she meant a specialist pain management physician.

    [34] The report of Ms Cross is document 33 in the tender bundle of documents submitted by the Applicant in evidence before the Tribunal.

20. Other physiotherapy reports were in evidence including one of 2017 from   Mr Thomas Tung[35] and a January 2018 report of Ms Wendy Peake.[36] They record that the treatment undertaken and the programs they had recommended had enabled some gains to be made, the object of which was to minimise the pressure on nerves caused by his disc in spinal pathology. Ms Peake described it as “normalising his muscle activation patterns.” It does highlight that the physiotherapy treatment was still being developed in so far as the Applicant was concerned, and cannot be relied upon to support the contention that spinal condition had been fully treated and stabilised as at 10 July 2015.

    [35] Mr Tung’s report is undated. It is document 34 in the tender bundle of documents submitted by the Applicant in evidence before the Tribunal.

    [36] Ms Peake’s report is dated 25 January 2018. It is document 35 in the tender bundle of documents submitted by the Applicant in evidence before the Tribunal.

21. A physiotherapy report from Mr Laird on 13 October 2017 recorded that on physical examination, active movements of the cervical spine show gross restriction of extension and rotation movements. He concluded that the signs he observed were typical of cervical spondylitic change. He suggested that the Applicant returned for a trial of physiotherapy and exercise. However, there had also been arranged a review in neurosurgery in four months’ time, where a further MRI could be performed if required. This confirms, certainly in so far as the physiotherapy perspective was concerned, further methods of treatment were being explored. Once again this is inconsistent with finding that the condition had been fully treated and stabilised as at 10 July 2015.

22. The Respondent did briefly in its Statement of Facts, Issues and Contentions refer to the HPAU report and also a Job Capacity Assessment report of 9 July 2015. The Tribunal does not place any emphasis on either of these reports with respect to the Applicant’s spinal condition, predominantly because they both acknowledge that a neurosurgical assessment was to be undertaken in the future. Therefore, it was contended that whilst that neurosurgical investigation and opinion had not been obtained, the condition was not fully treated and stabilised. That specialist neurosurgical opinion was subsequently obtained from Dr O’Brien as noted earlier. For this reason alone no reliance could be placed realistically on either of these reports.

23. For the reasons noted previously that the spinal condition was subject to ongoing monitoring and surveillance particularly by yearly examinations and MRI’s the Tribunal accepts the Respondent’s contention that such condition was not fully treated and stabilised as at the relevant date of 10 July 2015.

24. If indeed the Applicant’s spinal condition was fully treated and stabilised as at   10 July 2015 (which the Tribunal has found it was not) it is appropriate to consider whether such a permanent condition has resulted in functional impairment by applying “Table 4 - Spinal Function” of the Tables.

25. Table 4 is concerned with whether or not there is any mild, moderate, severe or extreme functional impact on activities involving spinal function with respect to several defined activities identified in that table. The contents of each descriptor for each level of impairment need not be reproduced for the purposes of these reasons. The contents are referred to for the full force and effect. They include tasks such as bending down, turning their trunk, turning their head, activities overhead height, bending forward and remaining seated.

26. There is limited evidence from both the Applicant and the experts on this function. In his written submissions which were received in evidence[37] and adopted by him in the witness box he stated it is very difficult for him to sit or stand for more than a few minutes, bend forward, perform overhead activities, turn his head without moving his chest, handle, move or carry most objects, use a computer keyboard intends. He explained feelings of pain and numbness across his limbs. He described it being very difficult for him to climb stairs, walk around to shop and carry out household activities such as changing sheets, putting away laundry without becoming very exhausted. The contents of that submission (statement) are referred to for the full force and effect.

    [37] Exhibit "A-2".

27. In cross-examination the Applicant’s evidence concerning this function as outlined in the previous paragraph was strongly tackled. As part of the cross-examination the advocate for the respondent put to the Applicant specific paragraphs of previous Tribunal decisions concerning the Applicant containing findings about these functions.

28. The first previous Tribunal decision containing findings about these matters that was put to the Applicant was a decision of Member Benk made on 7 September 2016.[38] The Applicant acknowledged that he gave evidence before the Member in that application. The contents of paragraph 8 of that decision were put to him. They will not be repeated in full, however, the Member observed that the Applicant confirmed he lives alone and attends to all self-care needs. He has no external support with activities. He attends the gym daily for up to three or four hours and participates in a number of activities and visits the sauna for up to one hour. The Applicant steadfastly maintained in cross-examination, that the contents of that paragraph we are inaccurate. He was even so bold as to say that the Tribunal had misdescribed the evidence he gave to it. Then he asserted that perhaps the Member had misunderstood his evidence. Indeed, he even said that he did not give some of the evidence described in that paragraph such as that he drove a car or could manage his finances.

    [38] Document T 85.

29. The contents of paragraph 12 of the reasons of Member Benk were also put to the Applicant. The Member recorded in that paragraph that the evidence revealed the Applicant is able to bend down to pick up a light object off the floor, is able to turn his trunk from side to side and turn his head to look to the sides and upwards (consistent with the medical evidence that range of motion of the neck was normal) albeit with pain. He also confirmed that at the gym he can use the vibrating machine, the stretch machines, the rollers on the ropes (suspended from the ceiling). His initial response to questions put to him about the contents of this paragraph in cross-examination was to say that he didn’t remember giving that evidence. He did concede that he mentioned the use of the ropes, the vibrator machine and the roller.

30. The second previous Tribunal decision containing findings about these matters that was put to the Applicant in cross examination was a decision of Member Markov made on 28 September 2017.[39] The Applicant conceded that he gave evidence in that hearing. The contents of paragraph 21 of Member Markov’s reasons were put to the Applicant. The relevant sections of that paragraph record that the Applicant gave evidence to Member Markov that he was able to travel overseas alone, drive a car, go shopping, cook, do his laundry and use a computer. He finds that the neck pain makes it difficult to turn, look up and do overhead work. His response was that he did not remember telling the Tribunal “those things”. When pressed he agreed that he did those things. He said however that whilst he can drive a car he can’t drive for long periods.

    [39] Document PT 3.

31. The Tribunal notes the observations made earlier in these reasons that the Applicant is an unreliable witness. In response to the questions that were put to him about evidence given in the two previous hearings before Members Benk and Markov he tended to be evasive and gave evidence with an air of unreality. The Tribunal accepts that the Applicant gave evidence in the terms described by Members Benk and Markov. It finds that on the preponderance of the evidence those descriptions were accurate and more probably than not accurate as at 10 July 2015. Also, there was some shift in the evidence given by the Applicant in his witness statement and that in the witness box. His statement described performing the functions as “very difficult”. The other evidence before the Tribunal tended to identify the functions as “difficult” to perform. Therefore, the Tribunal finds that the Applicant has some difficulty with the functions identified in Table 4 Spinal Function.

32. In the telephone interview with an officer of the Respondent on 10 June 2016

    
    

    Dr Olszewski advised that the Applicant was waiting to see a neurosurgeon. He stated that the Applicant was suffering from chronic pain. He recommended conservative treatment, physiotherapy and Thai rehabilitation therapy. He did not specifically address any specific spinal function or activity identified in the descriptors of Table 4, such as whether or not the Applicant could bend down to pick up the light object off the floor such as a piece of paper. His referral to St Vincent’s did not address those functions or any of the other descriptors.

33. The report of the neurosurgeon, Mr O’Brien, also did not address any of the descriptors and the functional impact of his condition on the spinal function on the activities described in Table 4.

34. Similarly, the report in 2019 of the Neurosurgery Registrar, Dr Dawes, does not address each of the elements of the descriptors to enable anyone to assess what functional impact, if any, his condition has had on the activities described in Table 4.

35. The physiotherapist, Mr Laird, in his report which of course was outside the relevant period and dated 13 October 2017 stated there was “gross restriction of extension and rotation movements.” Unfortunately, he did not identify what they were and did not identify the terms used to describe the impairment in Table 4, namely mild, moderate, severe or extreme.

36. The earlier physiotherapy reports of Ms Manuelpillai (referring to his condition in March 2015) identified pain in the neck, upper back, shoulders and lower limb and stated that the Applicant was managing his symptoms. Ms Johanna Cross in January 2016, stated that he goes to the gym every day and that he was responding to manual therapy. In 2017 Mr Tung confirmed that the Applicant was exercising regularly and was progressing well with increased muscle tone in pectoral and rotator cuff muscles. These do not enable the Tribunal to reach a conclusion concerning the descriptors in Table 4 or accurately apply a points rating. Those reports tend to indicate that overall the functional impact on the spinal function activities was at best mild to moderate.

37. The Respondent relied on several other matters to contend that an impairment rating could not be assigned to the functional impact on activities identified in the descriptors to Table 4 Spinal Function. There is evidence of neck pain, stiffness and numbness. However, the Applicant was able to undertake several activities including regular overseas travel. There is considerable evidence that the Applicant had the capacity to drive and engage in an independent lifestyle and regular if not daily visits to the gymnasium for several hours at a time. The evidence referred to above at paragraphs 120 to 122 concerning what the Applicant did at the gymnasium is referred to and repeated. It seems unlikely to the Tribunal that performing these exercises at the gymnasium would be possible with anything more than a mild functional impact.

1. Given the evidence described, the Tribunal finds that it can only assign an impairment rating under Table 4 as at 10 July 2015 of mild functional impact of 5 points.

   CONCLUSION.

2. For the above reasons the Tribunal concludes that the overall impairment rating applicable to both the mental health and spinal conditions on 10 July 2015 did not satisfy paragraph 94(1)(b) of the Act.

3. Given the finding that the Applicant’s conditions had not been fully treated and stabilised on 10 July 2015, his impairment was not a “severe impairment” as defined in section 94(3B) of the Act. Therefore all of the requirements of section 1218AAA of the Act for Unlimited Portability of his disability support pension have not been established.

4. By reason of the foregoing matters the reviewable decision is affirmed.

I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of                   R CAMERON SENIOR MEMBER

...............[sgd].........................................................

Associate

Dated: 8 January 2020

Date of hearing:	27 August 2019
Applicant:	In person
Advocates for the Respondent:	Mr Nam Nguyen and Mr Karwan Eskerie
Solicitors for the Respondent:	Sparke Helmore Lawyers