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

Spaleta and Secretary, Department of Social Services (Social services second review) [2018] AATA 2581 (18 May 2018)
Division: GENERAL
File Number(s): 2017/3433
Re:Irena Spaleta
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Robert Cameron, Senior Member
Date:18 May 2018
Place:Melbourne

The Tribunal affirms the decision under review.
...........[sgd].............................................................
Robert Cameron, Senior Member
SOCIAL SECURITY – disability support pension – whether qualified – mental and physical health conditions diagnosed but not fully treated or stabilised – whether impairments attract rating of 20 points or more under Impairment Tables – whether program of support undertaken – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
Secondary Materials
Guide to Social Security Law
Social Security (Tables for the Assessment of Work – related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Robert Cameron, Senior Member
18 May 2018
INTRODUCTION

This is an application made on 9 June 2017 by Irena Spaleta (the “Applicant”) for review of a decision of the Administrative Appeals Tribunal Social Services and Child Support Division (“AAT1”) affirming a decision by an Authorised Review Officer of the Respondent on 1 October 2016 rejecting a claim lodged by the Applicant for the disability support pension (“DSP”) on 24 November 2015.
THE LEGISLATION AND OTHER RELEVANT MATERIALS
The following legislation and other materials are relevant to this Application:
(a)Social Security Act 1991 (“the Act”);
(b)Social Security (Administration) Act 1999 (“the Administration Act”);
(c)Social Security (Tables for the Assessment of Work – related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”); and
(d)Social Security (Active Participation for Disability Support Pension) Determination 2014 (“the POS Determination”).
ISSUES FOR DETERMINATION
Relevantly, to qualify for the DSP the Applicant must meet the criteria specified by s 94 of the Act as at the date of the claim or within 13 weeks of lodging such claim, in accordance with subclause 4(1) of Schedule 2 to the Administration Act. In this case the Applicant must have met the criteria between 24 November 2015 and 24 February 2016 inclusive (“the qualification period”).
Section 94[1] of the Act provides that a person qualifies for the DSP if (“the section 94 requirements”):
(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;…
[1] Section 94 “Qualification for disability support pension” is referred to in its entirety for its full force and effect.
The Respondent has accepted that the Applicant suffers from several medical conditions, as required by s 94(1)(a).[2]
[2] See paragraph 4.18 of the Secretary's Statement of Issues, Facts and Contentions.
The Respondent at all relevant times contended that the impairments arising from the medical conditions suffered by the Applicant cannot be assigned a total impairment rating of 20 points or more under the Impairment Tables. Therefore, she does not satisfy the provisions of s 94(1)(b) of the Act.
Therefore the determinative issue in this Application is whether, during the qualification period, the Applicant had a rating of 20 points or more under the Impairment Tables.
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in s 94(1)(b) of the Act.[3] They are function based[4] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[5]
[3] Sections 4(2) and 5(2)(a) of the Impairment Tables.
[4] Sections 5(2)(b) and (c) of the Impairment Tables.
[5] Section 5(2)(d) of the Impairment Tables.
The Tribunal can only assign an Impairment Rating to an impairment if:[6]
(a)the Applicant’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[6] Section 6(3) of the Impairment Tables.
The Applicant’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[7]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[7] Section 6(4) of the Impairment Tables.
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”,[8] the following must be considered:[9]
(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.
[8] For the purposes of section 6(4)(a) and (b) of the Impairment Tables.
[9] Section 6(5) of the Impairment Tables.
A condition is “fully stabilised”[10] if:[11]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[12] or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[10] For the purposes of sections 6(4)(c) and 11(4) of the Impairment Tables.
[11] Section 6(6) of the Impairment Tables.
[12] “Reasonable treatment” is defined in section 6(7) of the Impairment Tables.
Once it has been established that an applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Prior to applying the Tables, it is necessary to consider the Applicant’s medical history in relation to the conditions causing the impairments.[13]
[13] Section 6(2) of the Impairment Tables.
THE EVIDENCE AND OTHER MATERIAL BEFORE THE TRIBUNAL
The following evidence was adduced during the course of this hearing:
(a)The T documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975;
(b)A Psychological Assessment report prepared by Ms Nicole Plotkin, psychologist, dated 12 February 2018;[14]
(c)An “Analytical Report” produced by Jill Lark of “Mouldlab” on 3 July 2013;
(d)An “Asbestos Identification Analysis – 17 Church Street, Brighton” prepared by Noel Arnold and Associates dated 25 February 2013; and
(e)The oral evidence of the Applicant.
[14] It should be noted that this report of Ms Plotkin was prepared following the Respondent Department sending to the Applicant's husband (who at all times to this application acted as her representative and at the hearing as her advocate) a letter of 13 November 2017 with an accompanying "Dear Doctor" letter and the Impairment Tables number 1, 5 and 14. The response of Ms Plotkin was to address each of the specific questions numbered 1 to 8 contained in the "Dear Doctor" letter. Additionally, it must be recalled that Ms Plotkin provided a "Psychological Report" with respect to the Applicant for Shine Lawyers on 9 September 2016. This first report from Ms Plotkin was referred to throughout the course of the hearing and is found on pages 29 to 31 of the T documents.
Another matter that arises from this report is that it refers to the fact that the Applicant has seen Dr John Weiner who is apparently a Consultant Allergy Physician in 2017. Unfortunately, no report from Dr Weiner was in evidence. This would have assisted the Tribunal in determining, amongst other things, whether the allergic reactions that she has suffered had during the relevant period been fully diagnosed, fully treated and fully stabilised as required by the Impairment Tables. No explanation was offered as to why no report was produced to the Tribunal from Dr Weiner. Whilst the Tribunal is not bound by the rules of evidence it is difficult not to draw some adverse inference against the Applicant by reason of the failure to adduce evidence from Dr Weiner. However, it is not determinative of the issue.
In the T documents there were several medical reports which were referred to by both parties to this application throughout the course of the hearing. They will be considered further in these reasons. It is appropriate to separately mention three of them at this juncture in the reasons. They are as follows:
(a)Report by Dr Nathan Serry, consultant psychiatrist dated 25 September 2015 addressed to Vincent Ryan Solicitor;[15]
(b)Report by Dr Richard Prytula, consultant psychiatrist/psychoanalyst dated 10 October 2016; addressed to Allianz Australia Workers Compensation (Victoria) Ltd;[16]
(c)Report of Dr Alan Segal, dermatologist dated 24 October 2016; addressed to Sarah Gill, Case Manager, Allianz;[17] and
(d)Dr Jonathan Burdon, respiratory physician dated 19 December 2016 addressed to Allianz Australia Workers Compensation (Victoria) Ltd.[18]
[15] Pages 19 – 28 of the T documents.
[16] Pages 32 – 40 of the T documents.
[17] Pages 147 – 150 of the T documents.
[18] Pages 136 - 141 of the T documents.
Unfortunately, the letters of instruction to each of the doctors (and the first “Psychological Report” of Ms Plotkin of 9 September 2016) referred to in the previous paragraph were not tendered in evidence.[19] It does make it difficult for the Tribunal to know precisely what each respective medical practitioner was specifically requested to do. Whilst that is not necessarily conclusive either for or against the Applicant it does, as the Respondent fairly contended, affect the weight that the Tribunal might place upon their contents in certain circumstances. Further, the reports of Drs Prytula, Segal, Burdon and Ms Plotkin were produced some time after the qualification period. This does affect the weight that the Tribunal places on an assessment of the quality of such reports provided.
[19] Dr Prytula and Dr Burden did however reproduce the questions that they were requested to answer by the workers’ compensation insurer. Dr Serry only provided answers to numbered questions without reproducing such questions. He did however note what documentation he had been provided with which was extensive and comprised of nine documents including the statement of claim, reports and several medical certificates. One of those were two certificates from Dr Jansz, a general practitioner who had previously treated the Applicant. It was submitted to the Tribunal that Dr Jansz was the doctor who diagnosed the Applicant as suffering from a fungal infection. Dr Serry did not state what those certificates from Dr Jansz contained. It is unfortunate that there was no report from him. Also Dr Serry also referred to being provided with “Medical Certificates (multiple)” he does not identify which doctors provided such certificates nor describe what they contained.
Mr Robert Spaleta, the Applicant’s husband who appeared for her at the hearing, contended, with some level of reality, that some of the doctors whose reports are identified above were nominated by the Applicant’s workers’ compensation insurers and therefore, were not going to be “her friend” or “the workers’ friend”[20]. Whilst this is a fair comment to make, it unfortunately belies the point that the medical reports in question were requested for a different purpose, namely a workers’ compensation claim made by the Applicant and not for the purposes of conducting an assessment under the Impairment Tables for the purposes of s 94(1) of the Act. This was a submission made by Ms Lewis on the half of the Respondent with considerable force and effect. This issue will be addressed further in these reasons.
[20] Mr Spaleta, the Tribunal should record, represented his wife most competently and thoroughly notwithstanding that apparently he had no legal training or prior advocacy experience.
The Applicant’s treating general practitioner, Dr Colin Leong, provided several medical certificates which are also contained in the T documents and which diagnosed the Applicant as suffering from depression and mould exposure.[21] The contents of such medical certificates will also be considered further in these reasons.
[21] These reports are dated 1 February 2012, 9 May 2012, 22 November 2012, 13 August 2014, 10 March 2015, 7 October 2015, and 20 November 2015.
Additionally, there were extensive submissions made by the Applicant’s husband on her behalf and the Respondent’s Statement of Issues, Facts and Contentions.
THE CONTENTIONS OF THE PARTIES
The Applicant made extensive submissions by way of opening and closing addresses to the Tribunal in support of her application. The submissions on behalf of the Applicant centred around an analysis of the various medical reports that were in evidence. There was particular emphasis on the reports prepared by Dr Serry and Ms Plotkin. Much of those submissions concentrated on how such reports could be construed in terms of whether or not firstly, the Applicant’s conditions had been fully treated and fully stabilised (the Respondent accepted that the conditions were fully diagnosed). Secondly, whether or not the Applicant was suffering from a severe impairment, being an Impairment Rating of 20 points under the relevant Impairment Table.
Also, the Applicant submitted that the Respondent had not considered “Table 15 – Functions of Consciousness” (“Table 15”) which she stated was relevant and for which she contended she had an Impairment Rating of 20 points, being a severe functional impact from loss of consciousness or altered state of consciousness as required by the descriptors for that Table.
As for the notion that the relevant medical reports had been obtained for a workers’ compensation claim, the response of the Applicant was that whilst the reports may have been obtained for the purpose of litigation, the underlying medical diagnosis was the same.
Some level of debate did follow from these submissions in the context of whether the Applicant’s conditions had been fully stabilised. The reports contemplated the Applicant seeking further treatment from either a psychiatrist and/or a psychologist. The Applicant submitted such treatment or consultations were not further treatment in the strict sense but were rather “maintenance” as a result of the condition being fully diagnosed and fully treated. In this context, the Applicant submitted that there had been a misreading of Dr Serry’s report that had in effect flowed through a succession of deliberations and subsequent decisions to deny the Applicant the DSP. Further, in support of this contention the Applicant referred to Ms Plotkin’s reports both in the context of the condition being fully stabilised and treated and also in terms of the notion of “maintenance” not being further treatment in the strict sense. She submitted that her condition remained unchanged and had stabilised and was fully treated. This was described by the Applicant as “keeping her at the status quo” and not letting the patient “slide”. It was submitted that further treatment is not to cure the Applicant or improve her condition necessarily; it is simply to “keep things the same”.
As noted above, the Respondent filed a Statement of Issues, Facts and Contentions which provided a helpful outline of the position adopted by him. This document is referred to in its entirety.
The Respondent’s position with respect to the conditions suffered by the Applicant was to accept that they were fully diagnosed but contend that they were not fully treated and stabilised. Further, in terms of the Impairment Tables, the Respondent contended that either there was insufficient evidence or no evidence, to enable a finding of an Impairment Rating of 20 points or more under a single Impairment Table. Alternatively, that there was insufficient evidence to assign any points under the relevant Impairment Table.
The Respondent referred the Tribunal to several authorities which reiterate that in a consideration such as this by the Tribunal as to whether a condition has been stabilised it must look at the situation as it was and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks).[22] These authorities provide that “evidence of treatment, and the efficacy of the treatment, after the relevant period is not directly relevant to the Tribunal’s decision”.[23]
[22] The Tribunal was referred to Bobera v Sec, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].
[23] Fanning v Sec, Department of Social Services [2014] AATA 447 at [33]. The Tribunal was also referred to the cases of Yazdari v Secretary, Department of Social Services [2014] AATA 34, Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 and Gallacher v Secretary, Department of Social Services [2015] FCA 1123. These cases made similar observations to those referred to in this paragraph.
SOME OBSERVATIONS ON THE EVIDENCE
Mrs Spaleta presented as a candid witness who the Tribunal had no reason to doubt. She has obviously suffered from a variety of medical conditions for some time and unquestionably it has had a significant impact upon her both in terms of her general health and of course her capacity to engage in employment.
There was no real challenge to her evidence by the Respondent, which in the face of the credibility of her evidence was commendable.
Some of her evidence will be considered specifically under separate subject headings with respect to her various medical conditions. However, it is useful to give an overview of some of the evidence she gave both in chief and in cross-examination, particularly concerning panic attacks that she has suffered, as this aspect of her condition occupied much of her time in the witness box.
The Applicant gave evidence that she stopped working in 2011 and that her mood was anxious, stressed and that she was in fear. She then recounted how she developed a fungal infection due to the fact that rented premises in Brighton from which she conducted her business was affected by (and she was therefore exposed to) high levels of toxic mould. Apparently, once this toxic mould enters the body there is no method of removal and it appears there is limited treatment. She suffered a variety of afflictions and maladies as a result of such exposure.[24] Additionally, she gave evidence that as more information was provided to her about the nature of her conditions arising from sustained exposure to toxic mould in the relevant premises, the more her mood and general mental well-being significantly deteriorated.
[24] Dr Leong, her general practitioner, described the resultant afflictions in the following terms: "respiratory infections, fungal skin infections and dermatitis.” Dr Serry described it as recurrent “fungal infections and associated symptoms". Dr Segal recounted how she suffered from itchy skin with eruptions on the face, eyelids, chest and back. He also observed irritation on the scalp within the ears and a scaling eruption. Further, he observed areas of increased pigmentation on the cheeks and various parts of the neck from past inflammation and on the left posterior shoulder.

There was a reasonable portion of her evidence devoted to exploring the nature and frequency of panic attacks that she has suffered for many years. The Applicant gave evidence of sometimes suffering panic attacks up to 4 to 6 per day (roughly 35 to 40 panic attacks per week). The symptoms of these panic attacks were described. They included from time to time losing consciousness, screaming and loss of capacity to breathe or breathe effectively. She described it as “I start choking, I start fading and I am in fear that I’m going to die as I don’t have enough oxygen in my head, it is a feeling that I have”. In response to a question in cross-examination from Ms Lewis, she stated words to the effect that:
When you can’t breathe it causes the panic attacks, that is my perception. What I feel during the panic attack I feel is a physical restriction, I know that I’m losing my breath, I think I’m going to die and I go into a state of panic attack. Panic attacks just come and go. They come and go for no reason when you have it you just go into yourself because of the fear you feel. There is nothing that triggers it just fear for my children. My thoughts can trigger the attacks.
She recounted the experience of having a panic attack whilst present at the offices of Centrelink and ultimately passing out. During the course of another panic attack in October 2015 she suffered a fractured foot. She had started choking and losing consciousness, and when she came to, found herself on the floor in severe pain with foot swelling. She was able to drag herself to the house and was ultimately put in hospital. She stated that she loses consciousness because she is unable to breathe. It happens very suddenly, she doesn’t have time to think and she just passes out. It was depicted by her as a very “violent” experience that she has great difficulty processing.
Further, she recounted how during the day she is afraid that she might pass out; and her biggest fear is that if she passes out she might hurt herself. Additionally, it was portrayed in the context that she fears crossing the road as she might have a panic attack and people would be unable to assist her.
The Applicant stated that with respect to the panic attacks she has not been referred to any other specialist, for instance a neurologist, otherwise she is being treated by Ms Plotkin and is working on breathing techniques with her.
However, she stated that she now has a psychiatrist because Work Cover is paying for it.[25] Nevertheless, in November 2014 she couldn’t afford to pay a psychiatrist because such payments represented approximately half of her weekly Centrelink payments. However, she expressed gratitude that she now has a psychiatrist who she consults.[26]
[25] She did not identify the psychiatrist, how often she has seen him or what treatment she has undertaken with him.
[26] This evidence does indicate some level of further treatment. This later development is consistent with the observations of Dr Serry in his report that the Applicant should be under the care of a treating psychiatrist and would require treatment on an ongoing basis.
It was difficult not to feel considerable sympathy for her plight as she explained it from the witness box.
THE APPLICANT’S MENTAL HEALTH ISSUES
In addition to the evidence given by the Applicant referred to above, it is necessary to consider the medical evidence contained in the several reports that are in evidence. The report of Dr Serry of 25 September 2015 chronicles the history of the mental health matters that he observed as at that date. It is useful to provide a summary of these matters. He opined that as a result of, in particular “recurrent fungal infections and protracted and conflicted interactions with the landlord” she has developed a very significant psychiatric condition. The manifestations of this condition were ongoing symptoms of stress, anxiety, panic, frustration and significant levels of depression. He diagnosed her as suffering from chronic major depression, and panic disorder with associated general anxiety and with features of traumatisation.
Having made this diagnosis Dr Serry further opines that given the severity of the Applicant’s condition and nature of her symptoms she should be under the care of a treating psychiatrist for the foreseeable future. Critically, he further observes that given the severity of the Applicant’s condition and its duration as at that date, she would require treatment on an ongoing basis, initially weekly and then potentially monthly. The Applicant submitted through her husband that on a proper reading of this aspect of Dr Serry’s report he was, in effect certifying that her condition had stabilised. He further submitted that such report indicated that the Applicant is acutely ill with a relatively small chance of improvement and because of this the condition was stable and fully treated as at that date. The Tribunal finds that to construe the language used by Dr Serry in this way is to strain it and place a meaning on it that a proper reading could not provide. As noted earlier in these reasons it is unfortunate that the specific questions asked of Dr Serry have not been provided so as to give more accurate context to his comments. However, it does not seem possible to reach a conclusion that where he states the Applicant will require treatment on an ongoing basis that her condition is fully stabilised and fully treated in the relevant sense as required by the s 94 requirements and as contended by her.
The two reports of Ms Plotkin are also referred to. In the 12 February 2018 report she reaches the same conclusions as Dr Serry that the Applicant is suffering from chronic major depression and panic disorder with associated general anxiety and features of traumatisation.[27] Her symptoms are articulated. Ms Plotkin notes further that Cognitive Behaviour Therapy together with Acceptance and Commitment Therapy and supportive interpersonal counselling have been undertaken by her with the Applicant. She observes that “further therapeutic support is needed as she continues to struggle to accept the injustice of the landlord…and the unpredictable future outcomes/prognosis relating to the mould and asbestos exposure for her health and the health of her sons”. Further, she submits that Eye Movement Desensitization and Reprocessing (EMDR) therapy could also be helpful to assist her deal with symptoms of post-traumatic stress disorder. Similar observations were made in paragraph 6 of her report of 9 September 2016.[28] These conclusions recommending further treatment in such terms in both reports, with respect, do not support the Applicant’s contention that this report confirms that her conditions are fully treated and stabilised. While Ms Plotkin’s report seems to indicate that the Applicant’s current condition can be maintained with counselling support, clearly it goes further to suggest that her conditions could improve with further treatment, such as the EMDR therapy.[29] These two reports do not support the Applicant’s contention that she satisfies the s 94 requirements.
[27] Indeed she states in paragraph 1 of the report that she concurs with Dr Serry’s assessment.
[28] Page 31 of the T documents.
[29] It will be recalled that this response by Ms Plotkin was provided to the question in the “Dear Doctor” letter which asked whether there were any other investigations, specialist referrals or treatment yet to be undertaken for any condition as at 24 November 2015 and also whether the conditions were expected to persist for more than two years from 24 November 2015.
The report of Dr Prytula, a psychiatrist, was also in evidence. He concludes that she has developed a secondary adjustment disorder with mixed anxious and depressed mood, having arisen as a consequence of her physical condition and her concerns over it. In response to a question as to the expected duration of the incapacity, he concluded that he was unable to project a timeline for return of any capacity and it would very much likely depend on the outcome of the current litigation.[30] He further stated in response to a question:
·What is required to achieve a full return to work?
Full return to work would require an improvement in her condition and symptoms and resolution of the current litigation process.
These responses are not consistent with a condition that is fully treated and stabilised and demonstrate that resolution of the litigation is likely in his opinion to lead to relief from and/or improvement of the current incapacity. Once again these responses are not consistent with the s 94 requirements being satisfied.
[30] Page 37 of the T documents. Further, the Applicant informed the Tribunal that the litigation referred to had not, as at the date of the hearing, been concluded.
At page seven of his report Dr Prytula made the following response:
6. In relation to any work related injury or condition…what treatment (including medication) is appropriate, including frequency and duration?
The worker is likely to benefit from consultations with a psychiatrist aimed at exploring the extent of her anxiety and decompensation and managing this.
Once again this observation is indicative of the requirement of continuing treatment as at that date (of course bearing in mind that this date is outside the qualification period, being between 24 November 2015 and 24 February 2016 inclusive). Therefore, it would be a strain on the contents of this report to conclude that the condition has been fully stabilised and fully treated, in order to satisfy the s 94 requirements.
As the Applicant’s mental health condition has not been fully treated or stabilised, no impairment rating under the requisite Table, namely “Table 5 – Mental Health Function” (“Table 5”), can be assigned at this time.
For completeness I will address the allocation of impairment points under Table 5. The Respondent contends that if there were a finding that the Applicant’s mental health condition was fully diagnosed, treated and stabilised the condition could be assigned 5 points under Table 5 of the relevant Impairment Table, “Mental Health Function” (there is a mild functional impact on activities involving mental health function). After considering the material and in particular the evidence given by the Applicant, the Tribunal cannot agree with this assessment. The evidence relevant to each of the descriptors in Table 5 will be considered.
With respect to “self-care and independent living” the Applicant stated that showering is difficult and she is afraid to do it alone as if she has a panic attack or collapses she might hit her head or suffer some similar injury. She believes she cannot shower on her own and needs someone present so that she can call them if she feels like she might faint. As for cooking she states that she does some cooking in the morning but her mother tends to do it. If there is cleaning being undertaken in the house her mother takes her to her place because she is allergic, particularly to bedsheets and the like being pulled back which might cause dust particles to enter the air which affects her breathing and leads to panic attacks, the nature and effect of which she described in her evidence referred to above.[31]
[31] It was also submitted that the Applicant can’t perform household chores where dust may be raised. She did in her evidence explain the effect that dust had on her and her breathing.
With respect to “social and recreational activities” she has a fear of going outside the house alone. Frequently if she goes out shopping she likes to go with her mother but she is usually alright if she goes out with someone else she feels safe around. She was on both kindergarten and primary school boards until 2011 but is no longer due to her condition and also has limited social contact with others outside her family.[32] These characteristics also are relevant to the next descriptor interpersonal relationships.
[32] It was described at one stage as: “From 2011 almost zero social contact with anyone”.
In terms of interpersonal relationships the Applicant recounted that she has some difficulties between herself and her mother and her 12-year-old son who has discovered the “world of high school”. Evidently, she has a good relationship with her husband and otherwise, there was little evidence of any social interaction or other friendships.
On the question of “concentration and task completion” she stated that she doesn’t watch television and she doesn’t read magazines. Sometimes she tries to read books but her concentration won’t permit her, because she doesn’t have the concentration to remember what she read a few minutes ago. As she put it with respect to her concentration span “it is futile”. Further she stated that she listens to music during the day as it helps calm down and relieve her from fatigue. This was also advised by Ms Plotkin together with some meditation techniques and suggested exercise.
With regard to “behaviour, planning and decision-making”, the Applicant referred to having temper outbursts depending on the occasion, but was often triggered by references to or thoughts concerning her illness, as caused by the exposure to the toxic mould articulated previously and subsequent fungal infection. She also referred to suicidal thoughts that she has had from time to time.
In the context of “work/training capacity” the Applicant has not attempted to work since 2011. She stopped working and was not able to work due to the physical condition derived from the exposure to toxic mould and what she described as the effect of the mould report that she obtained in May 2011. She described it in terms of having: “just broke me, what I was exposed to was a horrible environment. What the landlord did was horrible, they destroyed me. We were reduced to sleeping in a one-bedroom apartment”.
Another relevant consideration in this analysis of the Applicant’s anxiety and depression concerns the issue of medication. The Applicant stated that she had been taking two types of medication prescribed by Dr Leong for some time. She stopped taking them due to suffering side-effects including weight gain. It is surprising in the circumstances that as her condition deteriorated and the medication prescribed by her general practitioner was having such side-effects, that she did not seek the assistance of a mental health professional such as a psychiatrist to further explore the possibilities of being prescribed some other form of medication that may not have had the adverse side-effects that she complained of. This is a reasonable avenue to pursue that was open to her during the qualification period which she had not availed herself of. In this context once again it seems that there is insufficient evidence for the Tribunal to reach a conclusion that the Applicant’s anxiety and depression have been fully treated and fully stabilised in the relevant sense required by the Impairment Tables.
Considering these elements of the Table 5 in the light of the Applicant’s evidence the Tribunal concludes that there was a moderate functional impact on activities from her mental health condition, her capacity for self-care and independent living is limited and she clearly does need some support from family members to be able to maintain a relatively independent lifestyle. The panic attacks are an overarching consideration, which have the effect of limiting to a moderate degree social recreational activities and travel; interpersonal relationships; concentration and task completion; behaviour, planning and decision-making and work/training capacity. The randomness and severity of such attacks does limit the extent to which she can undertake these relevant activities encapsulated in the descriptors in Table 5. The uncertainty created by them has additionally led to her exercising understandable caution in undertaking these activities. The assistance that she requires from others is in many instances important for her to be able to function. Therefore, in terms of Table 5, the Applicant’s evidence would tend to support a rating of 10 points as a realistic assessment; namely that there is a moderate functional impact on activities involving mental health function.
Additionally, there are several medical reports of Dr Leong that assume relevance in this consideration. These reports identify that the Applicant is suffering from two afflictions, namely depression and mould exposure. The manifestations of the depression were said to be poor moods, poor sleep, depression and poor self-esteem. The manifestations of the mould exposure were identified as respiratory infections, fungal skin infections and dermatitis. In the reports of 1 February 2012 and 9 May 2012 Dr Leong expresses the opinion that the depression is likely to show considerable improvement within two years and the respiratory infections, fungal skin infections and dermatitis is also likely to show considerable improvement within two years. Both conditions are described as “Temporary”. In the report of 13 August 2014 Dr Leong with respect to depression also describes it as temporary. In terms of the description of the patient’s treatment regime in the past he identifies antidepressants, counselling and psychotherapy as having been undertaken. With respect to planned treatment he recommends “psychiatrist review” and psychotherapy. He does at this point say that the prognosis is that it will continue to affect the patient’s capacity to work for more than 24 months. A similar report in identical terms was produced by him on 10 March 2015. With respect to the treatment of depression the recommendation of “psychiatrist review” would also tend to support the conclusion that the condition has not been fully treated and stabilised.
The Applicant through her advocate introduced Table 15 during the course of the hearing. It should be noted that the Respondent in the “Dear Doctor” letter referred to previously which was sent to the Applicant attached Table 5 and “Table 14 – Functions of the Skin”. The contention of the Applicant was that Table 15 was applicable and in the alternative, when one considered the 20 point descriptors, she satisfied the test that there is a severe functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity. The submission by the Applicant concerning Table 15 was made with considerable force and effect.
Several things should be noted with respect to this submission. The introduction to Table 15 states:
(a)that the table is to be used where the person has a permanent condition resulting in functional impairment;
(b)diagnosis of the condition must be made by an appropriately qualified medical practitioner;
(c)self-reported symptoms alone are insufficient;
(d)there must be corroborating evidence of the person’s impairment.
For the reasons noted above, the evidence insofar as it addresses the descriptors identified in this table does not establish whether this affliction is permanent as required.
Further, there has not been a diagnosis of the matters referred to in the descriptors by an appropriately qualified medical practitioner.
There has been no corroborating evidence or sufficiently corroborating evidence of the impairment produced that satisfies the definition of these descriptors.
Another matter of concern was the evidence from the Applicant herself, in which she stated she has a driver’s license and has had one since 1993 before she came to Australia. She then stated that she got one in 2016. She believes that was because her husband suggested that she get a license. She candidly conceded in cross-examination to a question put to her from Ms Lewis that she could have got a license earlier but didn’t, however, there was nothing stopping her from getting one. This tends to go against a finding of at least a moderate 10 point functional impairment where the person is unlikely to be granted a driver’s license and may have other safety-related restrictions on activities. There is no evidence to establish that this is the case for the Applicant and it has to be repeated that on her own admission she holds a driver’ s license and obtained one it would appear, without any impediment. For the reasons set out above, the Applicant does not attract a rating under Table 5, let alone a 20 point rating.
TOXIC MOULD EXPOSURE – RESPIRATORY INFECTION AND ALLERGIC REACTION

The Respondent has accepted that these conditions are fully diagnosed but has contended that they are not fully treated and stabilised.
As noted above, there is considerable evidence both from the Applicant herself and the various medical reports concerning the exposure to the toxic mould and the impact that it has had upon her.
The report of Dr Segal, dermatologist on 24 October 2016 reveals that he conducted an examination of her and identified the relevant conditions. He concluded that her current problems were as a result of contact over an extensive period to the mould she was exposed to in the workplace. He further stated that the length of her incapacity cannot be determined. He recommended that the Applicant “consult an allergist for skin prick testing to define the exact mould or fungal allergen” that was causing her problems and “for possible desensitization to be carried out”. He also recommended treatments with topical or oral steroids or other immunosuppressants that might be considered by an allergist. Given the length of time the Applicant had suffered from the affliction prior to seeing Dr Segal it is surprising that no course of medication as part of a treatment program had been undertaken by the Applicant for the allergic reaction to the toxic mould exposure. Critically, he stated: “It is impossible to prognosticate her clinical course until these measures have been carried out”. This is once again recommending treatment and seems to be reasonable treatment as contemplated by paragraph 6 of the Impairment Tables. For these reasons it is impossible for the Tribunal to reach a conclusion that these conditions had been fully treated or stabilised during the qualification period.
The Applicant gave evidence that Dr Segal recommended allergy testing and after she saw him she had such tests undertaken. Apparently, she advised that no other medical practitioner or healthcare professional had previously suggested that she have an allergy test prior to her consulting Dr Segal. Whilst no documentary evidence of such allergy testing was introduced during the course of the hearing the Applicant stated that the tests “came back negative”. The tests revealed that her immune system was turning against her as a result of long-term exposure to the toxic mould.
It is surprising that given the conditions the Applicant was undoubtedly suffering from, and obviously recounting to various medical practitioners and healthcare professionals, that an allergy test (which seems a logical examination to undertake), did not occur until after the Applicant saw Dr Segal on 24 October 2016. This testing did not occur until after the qualification period and in any case no report or test results were provided to the Tribunal. It is surely a part of a program of “reasonable treatment” that the Applicant could have undertaken as contemplated by subparagraph 6(6) “Fully stabilised” in paragraph 6 “Applying the Tables” of the Impairment Tables. It should be borne in mind that of course Dr Leong in the very first medical certificate provided to Centrelink dated 1 February 2012 diagnosed respiratory infections, fungal skin infections and dermatitis. One would have expected that as time passed and this “Temporary” condition did not improve, that an allergy test would have been undertaken as part of a reasonable treatment program. This observation and diagnosis is in addition to the obvious frequent panic attacks coupled with the reaction to dust causing choking that the Applicant had suffered for some years and was suffering during the qualification period. Once again as this treatment option was open it is indicative of a conclusion being reached that during the qualification period this condition had not been fully treated and had not fully stabilised.
Dr Burdon, a respiratory physician, in his report of 19 December 2016 noted that the clinical history provided by the Applicant to him was consistent with mould exposure and a general allergic response to such moulds. He stated that she continues to suffer from allergic illness related to mould exposure. When asked as to the timeframe for resolution of the injury he stated that it is always difficult to be certain of the timeframe by which there will be a complete resolution of symptoms. He states that he is of the opinion that it is likely her symptoms will continue long-term. However, he does note that she continues to suffer from significant psychological conditions requiring therapy and she has not fully recovered from her allergic illness. This use of words by Dr Burdon in this context seems to indicate that there was a reasonable prospect of improvement or recovery from the allergic illness. Once again consideration of this report indicates that it is not open to the Tribunal to find on this evidence that the conditions were fully treated or stabilised during the qualification period. The tenor of Dr Burdon’s report is one that indicates the possibility of further treatment and potential stabilisation and/or recovery. He certainly does not express an opinion that such conditions were fully treated or stabilised at that time.
Dr Prytula, although a consultant psychiatrist, in his report of 10 October 2016 quite reasonably makes an observation in the following terms: “She appears also not to have had any respiratory function tests. This would seem to be important and may well allay her anxieties.” Whilst this opinion is expressed in the context of a psychiatric or mental health examination, it does indicate that there are logical and rational further tests could be undertaken and could have been undertaken prior to or during the qualification period, which might have enabled further treatment to improve her condition or alternatively stabilise it.[33]
[33] It is of course acknowledged that in Dr Burden’s report (which again was prepared well after the expiration of the qualification period) he states that he conducted an "Examination of the respiratory system". This examination showed "that the chest was normal in shape and symmetry. Chest expansion was within the normal range, percussion note resonant and auscultation revealed normal vesicular breath sounds."
The reports of Dr Leong identified above are also relevant to the extent that whilst they were not expressing an opinion as at the date covered by the relevant period they do indicate that at the time he considered the condition, whilst ongoing, was likely to improve within two years. At the very least this indicates that the prognosis for the Applicant is uncertain.
To the extent that there is overlap between the mental health reaction caused by the exposure to toxic mould experienced by the Applicant, and this separate heading of respiratory infection and allergic reaction, reference should be made to the extensive evidence (both by the Applicant in the witness box and in the documents tendered) given concerning the relevant panic attacks that the Applicant frequently suffers from. In the context of Table 5 and the relevant descriptors under the 10 point assessment it should be repeated that these panic attacks have caused the Applicant to experience moderate difficulties as identified in each of those descriptors and the characteristics described therein. The analysis of these descriptors and the effect that the panic attacks have had referred to above are repeated.
Regrettably therefore, based upon this evidence the conclusion must be that the toxic mould exposure and consequent respiratory infections and allergic reactions suffered by the Applicant had not been fully treated or stabilised within the relevant sense required during the qualification period. As such, no impairment rating can be assigned.
THE APPLICANT’S FRACTURED FOOT
As noted above the Applicant did suffer a fractured foot as a result of losing consciousness following a panic attack.[34]
[34] See the account of the evidence of the Applicant referred to in paragraph 33 above.
Medical certificates from her general practitioner Dr Leong dated 7 October 2015 and 20 November 2015 were in evidence.[35] They showed that she was immobilised for some weeks and had experienced some pain which was monitored by him. However, it is apparent that this condition was temporary and did not satisfy the s 94 requirements. In the circumstances no further observations need be made concerning this condition.
CONCLUSIONS ON THE APPLICANT’S HEALTH CONDITIONS
[35] See pages 99 and 100 of the T documents.
Impairment rating of 20 points or more
For the reasons articulated above, the finding of the Tribunal is that the impairments arising from the Applicant’s conditions cannot be assigned a total rating of 20 points or more under the Impairment Tables.
Continuing inability to work
Section 94(1)(c), as noted above, provides an additional limb of which the Applicant must satisfy the decision maker if he or she is to qualify for the DSP.
The Applicant having not satisfied the requirements of s 94(1)(b) of the Act referred to above, it is not strictly necessary for the Tribunal to consider this question any further. However, for the sake of completeness it is considered appropriate to address the question of whether or not the Applicant satisfies the requirements of this section in any event.
Section 94(2)(aa) of the Act provides that a person has a continuing inability to work because of an impairment if the Secretary is satisfied that in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B), the person has actively participated in a program of support within the meaning of subsection (3C).
Section 94(3B) provides that a person’s impairment is a “severe impairment” if the person’s impairment is 20 points or more under a single Impairment Table. As outlined above, the Applicant has not attracted 20 points or more under a single Impairment Table.
The term “work” is defined in the definitions in s 94(5) as:
“work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.”
Several matters emerged from both the authorities that have construed this section and a consideration of the relevant sections themselves that are not relevant in determining whether a person has a continuing inability to work, these include:[36]
(a)the availability of the person’s usual work, or any work the person could do or be trained for, in the locally accessible labour market;
(b)the availability to the person of a training activity;
(c)the person’s motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment;
(d)the person’s preferences regarding the type of work or training.
[36] See for example the dot point list set out under the heading of ‘Factors to disregard in determining CITW’ at 3.6.2.112 of the Guide to Social Security Law.
Whilst one must be very much alive to the conditions that the Applicant suffers from, and which have been articulated in the evidence before the Tribunal, there is insufficient evidence to reach a conclusion that they were permanent, fully treated and stabilised. The Employment Services Assessment reports in 2013, 2014 and 2015 and the Job Capacity Assessment in 2016 have found that the Applicant had a capacity to work approximately 15 to 22 hours per week. The Applicant did concede that she had attended programs of support with Bridge Employment and MAX Employment disability employment services; but that she asked to be removed, particularly from MAX Employment because they couldn’t arrange a meeting with a psychologist. It was only when she moved to Bridge Employment who referred her to Ms Plotkin, who apparently bulk billed, that she re-engaged with this service. It was not clear what the ultimate outcome was of her referral and attendance at these services. However, it was submitted that in the absence of more cogent evidence rebutting their conclusions the observations of the job capacity assessors should be preferred. As was contended by the Respondent, they do have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity.
CONCLUSION
Unfortunately, the Applicant’s application for review must fail for the following reasons as were articulated above as she has failed to establish:
(a)a rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act; and
(b)that she has a continuing inability to work as required by s 94(1)(c) of the Act.
By reason of these findings the Tribunal affirms the decision under review.

82. I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Robert Cameron, Senior Member

............[Sgd]........................................................
Associate
Dated: 18 May 2018

Date of hearing: 28 February 2018

Advocate for the Applicant: Bob Spaleta

Advocate for the Respondent: Ms Ashleigh Allen

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 2581

18 May 2018

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Date of hearing:	28 February 2018
Advocate for the Applicant:	Bob Spaleta
Advocate for the Respondent:	Ms Ashleigh Allen
Solicitors for the Respondent:	Sparke Helmore