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

[2019] AATA 4297

Stevens and Secretary, Department of Social Services (Social services second review) [2019] AATA 4297 (22 October 2019)

Division:GENERAL DIVISION

File Number(s):2018/7433      

Re:Kerrie Stevens  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Belinda Pola, Senior Member  

Date:22 October 2019

Place:Brisbane

The decision under review is affirmed.

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

Senior Member Belinda Pola

Catchwords

SOCIAL SECURITY – disability support pension – DSP – spinal condition – mental health conditions - whether condition is fully diagnosed, fully treated and fully stabilised – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security Act 1991 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810
Fanning and Secretary, Department of Social Services [2014] AATA 447
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Smalldon and Secretary, Department of Social Services [2015] AATA 2

REASONS FOR DECISION

Belinda Pola, Senior Member
22 October 2019

BACKGROUND

1.       On 6 November 2017 the Department of Human Services (‘the Department’) received a claim for the Disability Support Pension (‘DSP’) from the Applicant, Ms Kerrie Stevens[1].

[1] Exhibit 1, T7, pages 45 to 73.

2.       A psychologist from the Department produced a report in respect of the Applicant on      15 November 2017[2], which recommended the Applicant was manifestly medically ineligible due to a lack of evidence regarding the diagnosis of the Applicant’s spinal condition and mental health condition.

[2] Exhibit 1, T8, pages 74 and 75.

3.       On 21 November 2017, the Department made a decision to reject the Applicant’s claim for the DSP[3]. This decision was reviewed and affirmed by an Authorised Review Officer (‘ARO’) from Centrelink on 7 June 2018[4].

[3] Exhibit 1, T9, page 76.

[4] Exhibit 1, T14, pages 88 to 94.

4.       On 30 August 2018, the Applicant requested that the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (‘Tribunal’) review the Department’s decision to reject her claim for the DSP[5]. On 14 November 2018 the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[6].

[5] Exhibit 1, T19, page 101 and 102.

[6] Exhibit 1, T2, pages 3 to 7.

5.       The Applicant applied to the Tribunal for a second review of this decision on or about     17 December 2018[7].

[7] Exhibit 1, T1, pages 1 and 2.

JURISDICTION

6.       This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.

7. Section 179(1) of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’), provides that:

(1)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.

8.       The Tribunal has jurisdiction to hear this application.  

ISSUES

9.       The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to her claim lodged on 6 November 2017, and ending 13 weeks later on 5 February 2018.

10. For the purposes of this application and the evidence submitted and provided orally by the Applicant to the Tribunal, it is clear the Applicant suffered physical and psychiatric impairments during the qualification period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted the Applicant had impairments[8].

[8] Exhibit 2, page 7, paragraphs 39 and 41.

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

(i)Whether the Applicant’s impairments attracted 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) within the qualification period; and

(ii)If so, did the Applicant have a continuing inability to work?

RELEVANT LEGISLATIVE PROVISIONS

12. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act:

94 Qualification for disability support pension

(1) A person is qualified for disability support pension if:

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

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

(c) one of the following applies:

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

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

…

13.     To be medically qualified for a DSP a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.

14. Section 26(1) of the Act provides that “the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

15.     It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one on the material before the Tribunal[10]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

[9] Senior Member Hunt in Faulkner and Comcare [2007] AATA 1541 [27].

[10] Bowen CJ and Deane J in Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419.

16. Section 6 of the Determination states that “the impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[11]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[12].

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

[12] Section 6(2) of the Determination.

17.     An impairment rating may only be assigned to an impairment if[13]:

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

(a) the person’s condition causing the impairment is permanent; and

(b) the impairment that results from that condition is more likely than not, in light of   

evidence, to persist for more than 2 years.

18. Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[14]:

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

·be fully diagnosed by an appropriately qualified medical practitioner; and

·be fully treated; and

·be fully stabilised; and

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

19.     When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[15]:

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

(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.

20.     A condition is considered fully stabilised if[16]:

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

(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

(b)the person has not undertaken reasonable treatment for the condition and:

(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

21.     Reasonable treatment is a treatment that[17]:

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

(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.

22. Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.

23. Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.

24. In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

25. While s11(1)(c) of the Determination provides that in assigning an impairment rating “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

Continuing inability to work

26. As previously detailed in paragraph 12 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a ‘continuing inability to work’. Section 94(2) of the Act requires that:

(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

(b) in all cases—either:

(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

27. A severe impairment is defined in s94(3B) of the Act:

A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

28. Section 94(3C) of the Act states that:

A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

29.     The Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).

QUALIFICATION PERIOD

30. Schedule 2, Part 2, clause 4(1) of the Administration Act provides that the qualification period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[18].

31.     For the purposes of this decision, the day which the Applicant’s claim for DSP was registered with Centrelink was 6 November 2017, and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 5 February 2018.

32.     This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[19].

CONSIDERATION

[18] Part 2, clause 4(1)(d) of the Administration Act.

[19] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012) [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007) [1]; Fanning and Secretary, Department of Social Services [2014] AATA 447 (4 July 2014) [31].

1. The Application was heard in Brisbane on 25 September 2019, with the Applicant appearing via telephone. The Respondent was represented in person by Mr Chris Murphy. The Tribunal considered oral submissions made by both the Applicant and the Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).

2. It was clear from submitted and oral evidence that the Applicant suffered impairments during the qualification period in accordance with s94(1)(a) of the Act. This point was accepted by the Respondent[20]. The Tribunal finds the following impairments relevant to the Application:

   ·Spinal condition; and

   ·Mental health condition.

   [20] Exhibit 2, page 7 paragraphs 39 and 41.

3. For each of the impairments above, the Tribunal needs to consider whether they satisfied s94(1)(b) and (c) of the Act.

4. The Tribunal will now consider each of these impairments in accordance with s94(1)(b) of the Act, in particular whether each of these impairments meet the relevant provisions contained within the Determination as outlined in paragraphs 15 to 25 of this Decision.

   Spinal condition

5. Submitted evidence to the Tribunal in regard to the Applicant’s spinal condition which is relevant to the qualification period included a:

   ·     Discharge letter of 8 June 2017 by Dr Joel Petre of Sunshine Coast University Hospital Emergency Department[21] stating “CT thoracolumbar spine demonstrates acute endplate fractures of T11-L1, as well as a chronic appearing T9 fracture. This is in addition to generalised bony demineralisation. The orthopaedic team has seen the patient and advised that she requires no further orthopaedic follow up and can weight bear as tolerated. She most likely has undiagnosed osteoporosis. She will ideally require: bone mineral density testing; calcium and vitamin D supplementation; a bisphosphonate or denosumab”[22]. Dr Petre also stated that the “Patient currently does not have a GP. Strongly encouraged to find one for ongoing osteoporosis management”[23], and that “follow up options discussed – encouraged to find a GP for ongoing management, encourage to see private PT & access subsidised visits through GP if eligible. If not eligible, then GP can refer back to hospital OPD PT”[24].

   [21] Exhibit 1, T4, pages 35 to 40.

   [22] Exhibit 1, T4, page 35.

   [23] Exhibit 1, T4, page 39.

   [24] Exhibit 1, T4 page 38.

   ·     Medical Imaging Report of 8 June 2017 by Dean Mccombe, confirming “mild increase in thoracolumbar spine kyphosis due to fractures”; and “Generalised bony demineralisation”[25].

   [25] Exhibit 1, T4, page 40.

   ·     Medical Certificate of 31 October 2017 by Dr Ingall, outlining “Chronic Low Back Pain” and that the condition was an “exacerbation of existing condition” with the prognosis that presented symptoms were “likely to persist” with no treatment recommended[26].

   [26] Exhibit 1, T6, page 44.

   ·     Employment Services Assessment Report of 1 December 2017, by a registered Occupational Therapist who conducted an assessment with the Applicant via telephone stated that “Ms. Stevens indicated she will take over the counter pain relief when absolutely needed and confirms no other past or current treatment”[27]; and “Ms Stevens indicated she feels she has undiagnosed osteoporosis. She advised she will see her GP about having further scans to identify this condition”[28].

   ·     A Bone Mineral Densitometry Report of 17 January 2018 by Dr Drew McMenamin, concluding “This study indicates osteoporosis”[29].

   ·     Medical Certificate of 24 January 2018 by Dr Ingall, outlining (1) “Chronic Low Back Pain” and that the condition was “permanent” with the prognosis that presented symptoms were “likely to persist”; and (3) “Osteoporosis” and that the condition was “permanent” with the prognosis that presented symptoms were “likely to persist”, with a recommended treatment of “Calcium and Vit D”[30].

   [27] Exhibit 1, T10, page 78.

   [28] Exhibit 1, T10 page 81.

   [29] Exhibit 1, T11, page 83.

   [30] Exhibit 1, T12, page 84.

6. The Tribunal finds that the Applicant’s spinal condition was fully diagnosed during the qualification period on the basis of reports by Dr McMenamin and Dean Mccombe as outlined in paragraph 37 above. The Respondent accepted that the Applicant’s spinal condition was fully diagnosed during the qualification period[31].

   [31] Exhibit 2, page 8, paragraph 45.

7. During the hearing the Applicant confirmed she was advised to follow up her spinal condition with her doctor, and to see a physio therapist for ongoing management, as outlined in Dr Petre’s discharge letter of 8 June 2017[32].

   [32] Exhibit 1, T4, page 38.

8. The Applicant gave further evidence that she self-treated her condition at the time of the application due to not being able to afford private physio therapy appointments, and she was not aware she was able to access subsidised appointments through Medicare. The Tribunal notes that the Applicant’s evidence is not in accord with the submitted evidence of the discharge letter by Dr Petre of 8 June 2017[33].  In this letter the Applicant was encouraged to find a General Practitioner and access subsidised visits to a physio therapist through a referral. If the Applicant was unable to access subsidised visits to a physio therapist, she could then be referred back to the Sunshine Coast University Outpatient Department for physio therapy (instructions provided to the patient and outlined in patient notes by Jane Pegg Physio Therapist[34]).

   [33] Exhibit 1, T4, pages 35 to 40.

   [34] Exhibit 1, T4, page 38.

9. In addition to self-treatment for her spinal condition, the Applicant confirmed she took Mersyndol to treat her back pain. There is no evidence of this having been prescribed.

10. The Applicant informed the Tribunal that when she became aware she could access subsidised physiotherapy treatment for her spinal condition, she began treatment in August 2018 (six months after the qualification period for this application)[35]. A letter from David Kempthorne (Musculoskeletal Physiotherapist) of 29 August 2018[36] confirmed that the Applicant had attended 3 appointments in August 2018, with a further two visits to occur in the following fortnight; with the referral provided by Dr Ingall.

    [35] Exhibit 1, T19, page 101.

    [36] Exhibit 1, T19, pages 103 and 104.

1. Evidence before the Tribunal is that no recommended specialist treatment (by a physio therapist) was undertaken by the Applicant prior to or during the qualification period (noting this was also confirmed by the Applicant in a phone interview to the Occupational Therapist as at 1 December 2017 as part of the Employment Services Assessment Report[37]). A referral was made by the Applicant’s General Practitioner (Dr Ingall) at some point, with treatment beginning six months outside the qualification period of this application (with David Kempthorne (Musculoskeletal Physiotherapist)).

   [37] Exhibit 1, T10 page 78.

2. In relation to the degenerative nature of the Applicant’s osteoporosis no corroborative medical evidence was presented to the Tribunal as to the Applicant’s claims that recommended specialist treatment (through a physio therapist) has not assisted her condition.

3. The Tribunal finds that the Applicant’s spinal condition was not fully treated and in turn, not fully stabilised during the qualification period in accordance with the Determination. Therefore, I do not have authority to assign an impairment rating for the Applicant’s spinal condition.

   Mental health condition

4. The Applicant provided oral evidence in relation to her circumstances around the time of her application that she was homeless and living out of her car until 5 July 2019 when she recently received housing through the Government. The Applicant listed Post Traumatic Stress Disorder, Anxiety, Depression, Migraines including vision loss, and homeless in her original DSP application[38].

   [38] Exhibit 1, T7, page 69.

5. Submitted evidence to the Tribunal in regard to the Applicant’s mental health condition which is relevant to the qualification period included a:

   ·     Medical Certificate of 31 October 2017 by Dr Ingall, outlining “PTSD” and that the condition was an “exacerbation of an existing condition” with symptoms of “anxiety/depression” and the prognosis that presented symptoms were “likely to persist” with “Counselling” listed as a recommended treatment[39].

   ·     Assessment Services Recommendation for the Disability Support Pension Medical Elegibility of 15 November 2017 by a Psychologist stated that “Dr Ingall (31/10/2017) indicated diagnosis of PTSD, treated with counselling. Nil corroborative evidence from a clinical psychologist or a psychiatrist is available to support this diagnosis. Therefore this condition is not considered to have met the diagnostic criteria for assessment under Table 5 (Mental Health Function)”[40].

   ·     Employment Services Assessment Report of 1 December 2017, by a registered Occupational Therapist who conducted an assessment with the Applicant via telephone stated that “Ms. Stevens confirmed no medication for this condition and confirms no past or current psychological counselling. She advised she will see her GP to organize referrals.”[41].

   ·     Medical Certificate of 24 January 2017 by Dr Ingall, outlining “PTSD” and that the condition was an “exacerbation of an existing condition” with symptoms of “anxiety/depression/panic attacks/migraines/loss of vision” and the prognosis that presented symptoms were “likely to persist” with “Counselling (clinical psychologist)” listed as recommended treatment[42].

   ·     Clinical Psychologist report by Rosie Balko of 11 February 2018 stating that the Applicant had attended six counselling sessions between 10 January 2018 and 7 February 2018 and that, “treatment will have to continue for a considerable time”. In addition Ms Balko reported “[the Applicant] has developed severe psychological symptoms of anxiety/trauma, stress and depression”. In addition Ms Balko stated “It is my assessment that [the Applicant’] psychological condition is chronic and enduring. I do not consider [the Applicant’s] capable of returning to work within the next two (2) years. I believe that [the Applicant’s] psychological and physical symptoms would not allow her to fit into a structured work environment. [The Applicant’s] pronounced safety fears would also make it difficult for her to cope with the social aspects of working alongside other staff members”[43]. The Tribunal notes that this report has been provided outside the qualification period (ending on 5 February 2018), but as the report relates to treatment which occurred during the qualification period, consideration was given on this basis[44].

   [39] Exhibit 1, T6, page 44.

   [40] Exhibit 1, T8, page 75.

   [41] Exhibit 1, T10 page 78.

   [42] Exhibit 1, T12, page 84.

   [43] Exhibit 1, T13, pages 85 and 86.

   [44] Easterbrook and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 810 (16 November 2011) [28].

6. Further submitted evidence provided to the Tribunal which fell outside the qualification period included:

   ·     A Clinical Psychologist report by Rosie Balko of 7 July 2018 stating that the Applicant had attended a further four counselling sessions between 28 February 2018 and 6 June 2018 and that the Applicant “…had made good progress. At formal reassessment on 6/6/2018, [the Applicant’s] scores for her symptoms of depression, anxiety and stress were impressively lower than at initial presentation on 10/1/2018”. The report further stated that “Due to her physical mobility restrictions and her psychological symptoms, [the Applicant] continues to have difficulties with meeting the formal requirements of the ‘Newstart’ program she is currently assigned to. It is my assessment that [the Applicant] is not able to return to work”; and that “It is my assessment that [the Applicant] will require continuing psychological treatment to further work on the above issues”[45].

   ·     Medical Certificate of 27 April 2018 by Dr Ingall, outlining “PTSD” and that the condition was “permanent” with symptoms of “anxiety/depression/panic attacks/migraines/loss of vision” and the prognosis that presented symptoms were “likely to persist” with “Counselling (clinical psychologist)” listed as recommended treatment[46].

   ·     Medical Certificate of 27 July 2018 by Dr Ingall, outlining “PTSD” and that the condition was an “Exacerbation of existing condition” with symptoms of “anxiety/depression/panic attacks/migraines/loss of vision” and the prognosis that presented symptoms were “likely to persist” with “Counselling (clinical psychologist)” listed as recommended treatment[47].

   [45] Exhibit 1, T16 page 96.

   [46] Exhibit 1, T14, page 87.

   [47] Exhibit 1, T18, page 100.

7. Table 5 of the Determination expressly stipulates that the diagnosis of a mental health condition (or impairment) “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”[48]. [emphasis added]

   [48] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, page 22.

8. The Tribunal finds the Applicant’s mental health condition was fully diagnosed during the qualification period on the basis of the report by Rosie Balko (Clinical Psychologist) of     11 February 2018[49].  The Respondent agreed with this[50].

   [49] Exhibit 1, T13, pages 85 and 86.

   [50] Exhibit 2, page 10, paragraph 55.

9. The Tribunal relies upon Fanning and Secretary, Department of Social Services [2014] AATA 447, Deputy President Handley noted at paragraph 33 that:

   “… The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision”.

10. Evidence before the Tribunal confirms that the Applicant commenced treatment for her mental health condition during the qualification period of this Application. The Applicant undertook 6 counselling sessions with a Clinical Psychologist in a four week period (10 January 2018 to 7 February 2018, noting the final date of the qualification period ended on 5 February 2018 for this application). The Tribunal notes of these six counselling sessions, it is possible a counselling session(s) may have taken place after the qualification period ended, in the absence of being provided with specific appointment dates. The Clinical Psychologist’s report of 11 February 2018 stated that “treatment will have to continue for a considerable time”[51].

    [51] Exhibit 1, T13, page 85.

11. The Tribunal accepts the Respondent’s contention that the Applicant had not undertaken ‘reasonable treatment’ for their mental health condition during the qualification period[52]. This (for example) could have included additional treatments such as cognitive behavioural therapy, or appropriate trials of pharmacological treatment.

    [52] Exhibit 2, page 9, paragraph 49.

12. The Tribunal finds that the Applicant’s mental health condition was not fully treated and in turn, not fully stabilised during the qualification period in accordance with the Determination. Therefore, I do not have authority to assign an impairment rating for the Applicant’s mental health condition.

13. None of the identified impairments can be assigned impairment ratings under s94(1)(b) of the Act.

14. It is not necessary for the Tribunal to determine whether the Applicant met the requirements of s94(1)(c) of the Act.

    DECISION

15. The decision under review is affirmed.

    I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola

    …………[sgd]………………

    Associate

    Dated: 22 October 2019

    Date of hearing:  25 September 2019

    Applicant:  Telephone

    Solicitor for Respondent:       Mr Chris Murphy
      Mills Oakley

    ‘Annexure 1 – Exhibit Register’

Exhibit

Number

Description

1

Section 37 T Documents received 16 January 2019 (paged 1 to 137)

2

Secretary’s Statement of Facts. Issues and Contentions dated 4 July 2019 (paged 1 to 16)

3

Report of Rosie Balko dated 2 September 2019 (paged 1 and 2)

4

Email from Applicant dated 2 September 2019 (paged 1 and 2)