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

Struz and Secretary, Department of Social Services (Social services second review) [2017] AATA 1037 (6 July 2017)
Division:                  GENERAL DIVISION
File Number(s):      2016/7038
Re:  Keti Struz
APPLICANT

And Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal:                  Member D K Grigg
Date:  6 July 2017
Place:  Brisbane

The Tribunal sets aside the decision under review.
..................................[Sgd]......................................
Member D K Grigg

CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review set aside.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.
REASONS FOR DECISION
Member D K Grigg
6 July 2017
INTRODUCTION

On 22 March 2016 Ms Struz lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
Type 2 diabetes mellitus
Wilson’s disease
Anxiety
Depression
Schizophrenia
Physical leg (knee) pain
[1] Exhibit 1, T Documents, T14, pages 150-181, Ms Struz’s Claim for DSP dated 11 January 2016.
Work related stress
Ms Struz claimed that these conditions affect her ability to work due to “emotional stress, physical pain, concentration, [and] hearing echoing voices”.[2]
[2] Exhibit 1, T Documents, T14, page 178, Ms Struz’s Claim for DSP dated 22 March 2016.
On 2 June 2016 a Job Capacity Assessment (“JCA”) was conducted face-to-face with
[3] Exhibit 1, T Documents, T20, pages 209-217, JCA Reported dated 6 June 2016.
Ms Struz by a Registered Psychologist and Registered Occupational Therapist. The JCA concluded that Ms Struz’s medical conditions were not fully diagnosed, treated and stabilised or did not attract 20 points or more under the Impairment Tables.[3]
As a result of the JCA report, Centrelink rejected Ms Struz’s claim for DSP.[4]
[4] Exhibit 1, T Documents, T22, page 220, Letter from Centrelink to Ms Struz dated 7 June 2016.
Claim History
On 21 June 2016 Ms Struz sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).[5] The subsequent review by the ARO was unsuccessful on the grounds that Ms Struz’s medical conditions were not fully diagnosed, treated and stabilised.[6]
[5] Exhibit 1, T Documents, T24, page 232, Request for Review by ARO by Ms Struz dated 21 June 2016.
[6] Exhibit 1, T Documents, T30, pages 257-263, Decision of ARO dated 10 August 2016.
Ms Struz lodged an application for review with the Social Services and Child Support Division (“SSCSD”) on 22 September 2016.[7] The SSCSD rejected Ms Struz’s claim and affirmed the ARO’s decision on 23 November 2016.[8]
[7] Exhibit 1, T Documents, T37, pages 303-304, AAT Notice of Application dated 22 September 2016.
[8] Exhibit 1, T Documents, T2, pages 3-9, SSCSD’s Decision and Reasons for Decision dated 23 November 2016.
Ms Struz has sought a review of the SSCSD’s decision by this Tribunal.[9]
[9] Exhibit 1, T Documents, T1, pages 1-2, Ms Struz’s Application for Second Review dated 26 December 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Ms Struz must have a physical, intellectual or psychiatric impairment;
(b)Ms Struz’s impairments must be of 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 (“Determination”).[10]
(c)Ms Struz must have a continuing inability to work.
[10] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Struz meets the Section 94 Requirements is the date of the claim (in this instance as at 22 March 2016), unless Ms Struz becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[11] Therefore, in order to qualify for DSP Ms Struz must have met the Section 94 Requirements between 22 March 2016 and 21 June 2016 (“Qualification Period”).
[11] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Struz’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Date.[12]
DID MS STRUZ HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[12] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[13]
Ms Struz’s medical conditions
[13] Determination, s 3.
Type 2 diabetes mellitus
Ms Struz was diagnosed with Type 2 diabetes mellitus on or about 1 August 2011.[14]
[14] Exhibit 1, T Documents, T6, page 104, Medical Certificate of Dr Campbell dated 16 October 2015.
A clinical note dated 7 March 2016 records Ms Struz as being prescribed Diabex XR.[15]
[15] Exhibit 1, T Documents, T15, page 182, Clinical Note dated 7 March 2016; See also T16, pages 190-191, Report
of Dr Elias Sleaby dated 6 April 2016.
Anxiety and Depression
Dr Judy Campbell, General Practitioner, reports that Ms Struz had had anxiety and depression following workplace bullying since 1 April 2015.[16] Dr Campbell reported that this was a temporary exacerbation of a permanent condition and would likely affect Ms Struz’s ability to work for 3 -12 months.
[16] Exhibit 1, T Documents, T6, page 104, Medical Certificate of Dr Campbell dated 16 October 2015.
On 16 June 2015 Ms Struz was seen by Dr Gregory White, Consultant Psychiatrist. Dr White reported that Ms Struz described symptoms of a Major Depressive Disorder, Single Episode but that a prolonged incapacity for work would not normally be expected.[17]
[17] Exhibit 1, T Documents, T9, pages 120-131, Report of Dr White dated 16 June 2015.
In or around July 2015 Ms Struz was seen by Dr Dorothy Minca, Psychologist. Dr Minca reported that Ms Struz was referred to her for treatment for Depression and an Adjustment Disorder due to ongoing stress with her unfair dismissal claim. As at July 2015, Ms Struz had attended 4 sessions with Dr Minca. Dr Minca used the DASS 21 scale which indicated that Ms Struz’s level of depression and anxiety was severe.[18]
[18] Exhibit 1, T Documents, T9, page 132, Report of Dr Minca dated 4 July 2015.
On 6 November 2015 Ms Struz was referred to Dr Samir Ibrahim, Senior Consultant Psychiatrist, for an opinion regarding her anxiety and depression.[19]
[19] Exhibit 1, T Documents, T25, pages 234, Letter to Dr Ibrahim dated 6 November 2015.
A clinical note dated 7 March 2016 records Ms Struz as being prescribed Lexapro.[20]
[20] Exhibit 1, T Documents, T15, page 182, Clinical Note dated 7 March 2016; See also T16, pages 190-191, Report
of Dr Elias Sleaby dated 6 April 2016.
Schizophrenia
Ms Struz was diagnosed with schizophreniform disorder in 2008.[21]
[21] Exhibit 1, T Documents, T17, page 193, Discharge/Separation Summary dated 26 November 2008.
In 2011 Dr Yitzchak Hollander, Psychiatrist, reported that while Ms Struz has had two episodes of psychosis, she did not appear, at that time, to have any residual symptoms suggestive of a diagnosis of schizophrenia.[22] Dr Hollander recommended that a structured relapse prevention plan and close monitoring be implemented.
[22] Exhibit 1, T Documents, T17, pages 194-200, Report of Dr Hollander dated 9 September 2011.
On 24 January 2013 Ms Struz was reviewed by Ms R McCormack of a Crisis Assessment Treatment Team who found that Ms Struz was not eliciting any paranoia or mental health concerns.[23]
[23] Exhibit 1, T Documents, T17, page 201, Report of Ms McCormack dated 4 February 2013.
In January 2016 Ms Struz was seen by Dr Ibrahim, Senior Consultant Psychiatrist, who reported that Ms Struz was presenting with symptoms of schizophrenia and prescribed her with Lurasidone.[24]
[24] Exhibit 1, T Documents, T17, page 202, Report of Dr Ibrahim dated 9 January 2016.
On 25 February 2016 Dr Ibrahim reported that Ms Struz suffered from paranoid schizophrenia.[25]
[25] Exhibit 1, T Documents, T12, page 146, Medical Certificate of Dr Ibrahim dated 25 February 2016.
A clinical note dated 7 March 2016 records Ms Struz as being prescribed Lurasidone.[26]
[26] Exhibit 1, T Documents, T15, page 182, Clinical Note dated 7 March 2016; See also T16, pages 190-191, Report
of Dr Elias Sleaby dated 6 April 2016.
On 4 April 2016 Dr Ibrahim reported that Ms Struz’s mental condition showed little if any, improvement.[27]
[27] Exhibit 1, T Documents, T16, page 189, Report of Dr Ibrahim dated 4 April 2016.
Wilson’s disease
Pathology reports dated January 2016 indicated that elevated levels of copper in the urine may be due to Wilson’s Disease.[28]
[28] Exhibit 1, T Documents, T19, pages 206-208, Pathology Report dated 4 February 2016.
Dr Azizi, Consultant Gastroenterologist and Hepatologist, diagnosed Ms Struz with Wilson’s Disease in February 2016 after multiple investigations. Dr Azizi reports that Wilson’s Disease is a chronic genetic condition that will require life-long treatment and follow-up by a gastroenterologist.[29]
[29] Exhibit 1, T Documents, T37, page 306, Report of Dr Azizi dated 1 September 2016.
A clinical note dated 7 March 2016 records Ms Struz as suffering from, among other things, Wilson’s Disease, with a date of onset as 25 January 2016.[30]
[30] Exhibit 1, T Documents, T15, page 182, Clinical Note dated 7 March 2016.
A clinical note dated 7 March 2016 records Ms Struz as being prescribed Lyrica for neuropathic pain.[31]
[31] Exhibit 1, T Documents, T15, page 182, Clinical Note dated 7 March 2016; See also T16, pages 190-191, Report
of Dr Elias Sleaby dated 6 April 2016.
On 29 March 2016 Dr John Fitzgerald, Consultant Radiologist, performed an MRI on Ms Struz’s brain and concluded that there were no features present consistent with a diagnosis of Wilson’s Disease, although there may be indications of early stage Wilson’s Disease which would need to be verified by biochemical/genetic evidence.[32]
[32] Exhibit 1, T Documents, T23, pages 226-227, Report of Dr Fitzgerald dated 29 March 2016.
Ms Struz had a neurology review in July 2016. Dr Cynthia Chen, Neurologist, reports that, at that time, Ms Struz had no obvious neurological manifestations of Wilson’s Disease apart from some mental slowness and mild cognitive impairment. However, Dr Chen said this could be due to Ms Struz’s long history of psychiatric problems.[33] Dr Chen advised that Ms Struz should be reviewed again in October 2016 and that a repeat MRI may be required if there was persistent or deteriorating neurological deficit.
[33] Exhibit 1, T Documents, T31, pages 267-268, Report of Dr Chen dated 12 July 2016.
On 14 November 2016, Associate Professor Mohammad Al-Freah, Gastroenterologist and Hepatologist, reported that Ms Struz was now suffering from liver cirrhosis and multiple neuropsychiatric manifestations resulting from Wilson’s Disease. Associate Professor Mohammad Al-Freah says Ms Struz is debilitated by this illness and will find significant difficulties trying to work regularly as a result.[34]
[34] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 1, Report of Dr Al-Freah dated 14
November 2016.
On 17 November 2016, Dr J.K. Ziukelis reported that her Wilson’s Disease is confirmed by blood tests.[35]
[35] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 1, Report of Dr Ziukelis dated 17
November 2016.
Osteoarthritis – left knee and left ankle
On 24 February 2016, an x-ray of Ms Struz’s left foot and ankle was performed and indicated that she had osteoarthritis.[36]
[36] Exhibit 1, T Documents, T23, page 223, X-ray Report dated 24 February 2016.
In March 2016 Ms Struz attended a podiatry clinic where she was advised to wear orthotics and supportive footwear and physiotherapy was recommended.[37]
[37] Exhibit 1, T Documents, T23, page 225, Report of Isaac Konstantinidis, podiatrist, dated 17 March 2016.
In April 2016 Ms Struz attended a physiotherapy clinic and was prescribed a home exercise program. The physiotherapist also recommended further physiotherapy treatments would be beneficial.[38]
[38] Exhibit 1, T Documents, T23, page 228, Report of Natasha Le, physiotherapist, dated 15 April 2016.
In April 2016 Dr Sleaby reported that Ms Struz suffers from osteoarthritis in the left knee and left ankle.[39] Dr Sleaby reported that physiotherapy and podiatry treatment was prescribed.
[39] Exhibit 1, T Documents, T16, pages 190-191, Report of Dr Elias Sleaby dated 6 April 2016.
An MRI of Ms Struz’s lumbar spine performed in July 2016 indicated sequestered disc fragment.[40]
[40] Exhibit 1, T Documents, T32, page 269, MRI Report dated 16 July 2016.
Conclusion on Impairments
The Respondent accepts that Ms Struz suffers from impairments for the purposes of section 94(1)(a) as at the Qualification Period.[41]
[41] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 4.8.
In light of the above medical evidence I find that during the Qualification Period Ms Struz suffered from the following Impairments:
(a)Diabetes;
(b)Anxiety and depression;
(c)Schizophrenia;
(d)Wilson’s Disease; and
(e)Osteoarthritis;
for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
DO MS STRUZ’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[42] They are function based[43] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[44]
[42] Determination, s 4(2) and 5(2)(a).
[43] Determination, s 5(2)(b) and (c).
[44] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[45]
(a)Ms Struz’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.
[45] Determination, see s 6(3).
Ms Struz’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[46]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(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.
[46] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[47] the following must be considered:[48]
(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.
[47] For the purposes of ss 6(4)(a) and (b) of the Determination.
[48] Determination, see s 6(5).
A condition is fully stabilised[49] if:[50]
(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[51]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[49] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[50] Determination, see s 6(6).
[51] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the 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.
IS MS STRUZ’S DIABETES IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The Respondent’s written submissions contended that Ms Struz’s diabetes was not fully diagnosed.[52] However, I find that the corroborating medical evidence indicates that Ms Struz had been diagnosed with diabetes. The Respondent conceded at the hearing that this condition was fully diagnosed.
[52] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 4.32.
The Respondent also contends that that Ms Struz’s diabetes was not fully treated and stabilised because, as concluded by the JCA, Ms Struz reported that the condition was not stabilised and she had had no specialist consultation, such as from a dietician or optometrist that may assist in managing the condition, and that there was no management plan in place until March 2016.[53]
[53] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 4.32-4.33; Exhibit 1, T Documents, T20,
pages 211-212, JCA Report dated 6 June 2016.
However, the medical evidence indicates that Ms Struz’s diabetes has been treated and managed through blood tests, low GI diet regime, and optical and feet assessments, which is typical ongoing treatment for someone with diabetes.[54]
[54] Exhibit 1, T Documents, T6, page 104, Medical Certificate dated 16 October 2015; T6, page 108,
Medical Certificate dated 28 April 2015; T32, page 273, Report of Andrew Arnell, Optometrist, dated 10 February
2016.
I find that this condition is fully treated and stabilised and therefore permanent for the purpose of the Act and that, as a result, an Impairment Rating can now be assigned.
Using the Impairment Tables
I have to assess the level of impact of Ms Struz’s Diabetes Impairment against the descriptors[55] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[56]
[55] Determination, see ss 3 and 5(3).
[56] Determination, see ss 3 and 5(3).

Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
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.[57]
[57] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[58]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[58] Determination, see s 7.
I must not take into account the following information in applying the Tables:[59]
(a)symptoms reported by Ms Struz in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Struz’s local community.
(c)Which Tables are appropriate are determined by:[60]
(d)identifying the loss of function; then
(e)referring to the Table related to the function affected; then
(f)identifying the correct impairment rating.
[59] Determination, see s 8.
[60] Determination, see s 10(1).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[61]
[61] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[62]
[62] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[63]
[63] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
In June 2016 Dr Sleaby reported that due to her diabetes Ms Struz fatigues easily and her medication causes drowsiness.[64] Ms Struz gave evidence that at times she also has blurry vision and finds it hard to see down stairs. However, she is still able to drive a car.
[64] Exhibit 1, T Documents, T25, page 237, Report of Dr Sleaby dated 2 June 2016.
[65] Exhibit 1, T Documents, T32, page 273, Report of Mr Arnell dated 10 February 2016.
Mr Arnell reported in February 2016 that there was no diabetic retinopathy and advised Ms Struz to wear her glasses at all times for a significantly clearer and more comfortable vision.[65]
Table 1 of the Determination, which deals with Physical Exertion and Stamina, and Table 12, which deals with Visual Function, are the relevant Tables.
Based on the medical evidence I find that the appropriate rating under Table 1 is 5 points and the appropriate rating under Table 12 is 5 points because Ms Struz can perform most activities but experiences some discomfort and blurring of vision at times and she experiences some fatigue.
IS MS STRUZ’S ANXIETY/DEPRESSION/SCHIZOPHRENIA IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The JCA concluded on 6 June 2016 that Ms Struz’s:
(a)schizophrenia was not fully treated and stabilised because, at that time, Ms Struz had had limited psychiatrist treatment since the exacerbation of her symptoms in January 2016 and further specialist review may assist in improving the condition;[66] and
(b)depression was not fully treated and stabilised because, at that time, Ms Struz had had limited psychological and psychiatrist review and further specialist review may assist in managing the condition.[67]
[66] Exhibit 1, T Documents, T20, page 211, JCA Report dated 6 June 2016.
[67] Exhibit 1, T Documents, T20, page 210, JCA Report dated 6 June 2016.
The Respondent’s written submissions contended that Ms Struz’s psychiatric impairments were not fully diagnosed.[68] However, I find that the corroborating medical evidence indicates that Ms Struz had been diagnosed with anxiety, depression and schizophrenia. The Respondent conceded at the hearing that these conditions were fully diagnosed.
[68] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 4.38.
However, the Respondent contends that Ms Struz’s psychiatric conditions were not fully treated and stabilised because she had only commenced treatment and counselling in January 2016.[69]
[69] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 4.39.
In 2011 Dr Yitzchak Hollander, Psychiatrist, reported that while Ms Struz has had two episodes of psychosis, she did not appear, at that time, to have any residual symptoms suggestive of a diagnosis of schizophrenia.[70] Dr Hollander recommended that a structured relapse prevention plan and close monitoring be implemented.
[70] Exhibit 1, T Documents, T17, pages 194-200, Report of Dr Hollander dated 9 September 2011.
On 24 January 2013 Ms Struz was reviewed by Ms R McCormack of a Crisis Assessment Treatment Team who found that Ms Struz was not eliciting any paranoia or mental health concerns.[71]
[71] Exhibit 1, T Documents, T17, page 201, Report of Ms McCormack dated 4 February 2013.
Dr Judy Campbell, General Practitioner, reports that Ms Struz had had anxiety and depression following workplace bullying since 1 April 2015.[72] Dr Campbell reported that this was a temporary exacerbation of a permanent condition and would likely affect Ms Struz’s ability to work for 3 -12 months.
[72] Exhibit 1, T Documents, T6, page 104, Medical Certificate of Dr Campbell dated 16 October 2015.
In or around July 2015 Ms Struz was seen by Dr Dorothy Minca, Psychologist. Dr Minca reported that Ms Struz was referred to her for treatment for depression and an adjustment disorder due to ongoing stress with her unfair dismissal claim. As at July 2015, Ms Struz had attended 4 sessions with Dr Minca. Dr Minca used the DASS 21 scale which indicated that Ms Struz’s level of depression was severe and her anxiety levels had increased to moderate.[73]
[73] Exhibit 1, T Documents, T9, page 132, Report of Dr Minca dated 4 July 2015.
On 6 November 2015 Ms Struz was referred to Dr Samir Ibrahim, Senior Consultant Psychiatrist, for an opinion regarding her anxiety and depression.[74]
[74] Exhibit 1, T Documents, T25, pages 234, Letter to Dr Ibrahim dated 6 November 2015.
In January 2016 Ms Struz was seen by Dr Ibrahim, Senior Consultant Psychiatrist, who reported that Ms Struz was presenting with symptoms of schizophrenia and prescribed her with Lurasidone.[75]
[75] Exhibit 1, T Documents, T17, page 202, Report of Dr Ibrahim dated 9 January 2016.
On 25 February 2016 Dr Ibrahim reported that Ms Struz suffered from paranoid schizophrenia.[76]
[76] Exhibit 1, T Documents, T12, page 146, Medical Certificate of Dr Ibrahim dated 25 February 2016.
A clinical note dated 7 March 2016 records Ms Struz as being prescribed Lexapro.[77]
[77] Exhibit 1, T Documents, T15, page 182, Clinical Note dated 7 March 2016; See also T16, pages 190-191, Report
of Dr Elias Sleaby dated 6 April 2016.
A clinical note dated 7 March 2016 records Ms Struz as being prescribed Lurasidone.[78]
[78] Exhibit 1, T Documents, T15, page 182, Clinical Note dated 7 March 2016; See also T16, pages 190-191, Report
of Dr Elias Sleaby dated 6 April 2016.
On 4 April 2016 Dr Ibrahim reported that Ms Struz’s mental condition showed little if any, improvement.[79]
[79] Exhibit 1, T Documents, T16, page 189, Report of Dr Ibrahim dated 4 April 2016.
On 16 June 2016 Ms Struz was seen by Dr Gregory White, Consultant Psychiatrist. Dr White reported that Ms Struz described symptoms of a Major Depressive Disorder, Single Episode but that a prolonged incapacity for work would not normally be expected.[80]
[80] Exhibit 1, T Documents, T9, pages 120-131, Report of Dr White dated 16 June 2015.
In January 2017 Dr Ziukelis reported that Ms Struz’s mental health condition was having a severe functional impact on Ms Struz.[81]
[81] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 2, Report of Dr Ziukelis dated 19
January 2017.
In January 2017 Dr Richard Moore, Psychologist, reported that no significant functional improvement, resulting from her severe depression and cognitive impairment due to Wilson’s Disease, is expected. Dr Moore says that after 12 psychology treatment sessions with Ms Struz there has been no significant improvement and that the proposed future treatment will be to keep her condition as stable as possible.[82]
[82] Exhibit 3, Report of Dr Moore, dated 30 January 2017.
The difficulty with psychological conditions is that the signs and symptoms may vary and fluctuate. Table 5 of the Determination, which deals with mental health function, specifically notes that the signs and symptoms of mental health impairment may vary over time. For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
I note that in October 2016, for example, Ms Struz’s mental health conditions were reported as being in remission. She was still being prescribed anti-psychotic and anti-depression medication at this time.[83]
[83] Exhibit 1, T Documents, T36, page 301, Medical Certificate of Dr Ziukelis dated 4 October 2016.
A condition is fully stabilised[84] if[85] 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. The corroborating medical evidence supports a finding that Ms Struz’s psychiatric conditions are long-term conditions and are unlikely to significantly improve in the next two years.
[84] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[85] Determination, see s 6(6).
Based on the medical evidence I find that Ms Struz’s psychiatric impairments are permanent for the purpose of the Act and that, as a result, an Impairment Rating can now be assigned.
Relevant Impairment Table and Impairment Rating
Table 5 of the Determination, which deals with Mental Health Function is the relevant Table.
The introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition 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).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
·         a report from the person’s treating doctor;
·         supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
·         interviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities involving mental health function.
(1)The person has moderate difficulties with most of the following:
(a)self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
In order to assign an Impairment Rating of 20 points the evidence would need to show that there is a severe functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Evidence Identifying the Loss of Function
Dr Campbell reported:
(a)in April 2015 that Ms Struz was:
(i)experiencing dizziness, fatigue and blurred vision;[86]
(ii)having difficulty concentrating and focussing, and was waking early in the morning;[87]
(b)in May 2015 that Ms Struz was having difficulty concentrating, had a lowered mood, insomnia and was waking early in the morning;[88]
(c)in June 2015 that Ms Struz was anxious, nervous, suffering from insomnia and a lack of appetite and weight loss;[89]
(d)in July 2015 that Ms Struz was anxious, nervous, suffering from insomnia and a lack of appetite and weight loss;[90]
(e)in August 2015 that Ms Struz was anxious, nervous, suffering from insomnia and a lack of appetite;[91]
(f)in September 2015 that Ms Struz was anxious, depressed and suffering from insomnia;[92] and
(g)in October 2015 that Ms Struz had a low mood, anxiety and insomnia;[93]
[86]         Exhibit 1, T Documents, T6, page 106, Medical Certificate of Dr Campbell dated 13 April 2015.
[87]         Exhibit 1, T Documents, T6, page 108, Medical Certificate of Dr Campbell dated 28 April 2015.
[88]         Exhibit 1, T Documents, T6, page 110, Medical Certificate of Dr Campbell dated 26 May 2015.
[89]         Exhibit 1, T Documents, T6, page 115, Medical Certificate of Dr Campbell dated 24 June 2015.
[90]         Exhibit 1, T Documents, T6, page 117, Medical Certificate of Dr Campbell dated 24 July 2015.
[91]         Exhibit 1, T Documents, T6, page 118, Medical Certificate of Dr Campbell dated 21 August 2015.
[92]         Exhibit 1, T Documents, T10, page 136, Medical Certificate of Dr Campbell dated 29 September 2015.
[93]         Exhibit 1, T Documents, T6, page 104, Medical Certificate of Dr Campbell dated 16 October 2015.
Dr Ansari reported in November 2015 that Ms Struz had a low mood, was anxious, sleeping poorly and emotionally labile.[94]
[94] Exhibit 1, T Documents, T12, page 143, Medical Certificate of Dr Ansari dated 6 November 2015.
Dr Sleaby reported in December 2015 that Ms Struz had a low mood, was anxious, sleeping poorly and emotionally labile.[95]
[95] Exhibit 1, T Documents, T12, page 145, Medical Certificate of Dr Sleaby dated 3 December 2015.
Dr White reported in June 2015 as follows:[96]
[96] Exhibit 1, T Documents, T9, pages 120-131, Report of Dr White dated 16 June 2015.
[Ms Struz] described persistent lowered mood and a reduced interest in her usual activities… trouble sleeping and… early morning wakening… tired… trouble concentrating...
Her thinking and movements were slowed.
Her appetite was reduced and she had lost [weight].
She described feelings of worthlessness.
She experienced suicidal ideation without strong intent or planning.
[She] reported significant impacts upon her activities of daily living and work capacity from her psychiatric symptoms.
[Upon examination]:
She was kempt and alert. She appeared tense. She made little eye contact. She was agitated at times. Otherwise she was cooperative and pleasant. She spoke slowly and sounded depressed… Her affect (mood) was flattened (depressed) with little reactivity... She described depressive symptoms. She appeared demoralised, with hopelessness and helplessness. She exhibited an anxious preoccupation with her circumstances… no evidence of delusions or hallucinations…
Dr White concluded in June 2015 that Ms Struz had no capacity for work of any kind at that time.[97]
[97] Exhibit 1, T Documents, T9, pages 120-131, Report of Dr White dated 16 June 2015.
Dr Ibrahim reported:
(a)in February 2016 that Ms Struz was exhibiting disruptive behaviour (I am unable to decipher the remainder of Dr Ibrahim’s report);[98]
(b)in April 2016 that Ms Struz was continuing to have “delusional material”, “poor concentration and memory”;[99]
[98] Exhibit 1, T Documents, T12, page 146, Medical Certificate of Dr Ibrahim dated 25 February 2016.
[99] Exhibit 1, T Documents, T16, page 189, Report of Dr Ibrahim dated 4 April 2016.

Ms Struz reported to the JCA in June 2016 that she:[100]
·is socially withdrawn
·has reduced motivation with some impacts on completion of domestic and personal activities of daily living, depending on how she feels on the day
·has poor memory
[100] Exhibit 1, T Documents, T20, page 210, JCA Report dated 6 June 2016.
The JCA reported that Ms Struz presented to them with good concentration and comprehension and maintained appropriate eye contact.[101] I note here that Table 5 provides that the signs and symptoms of mental health impairment may vary over time and that the “person’s presentation on the day of the assessment should not solely be relied upon”.
[101] Exhibit 1, T Documents, T20, pages 210-211, JCA Report dated 6 June 2016.
Dr Ziukelis reported that this condition was having a severe functional impact on Ms Struz and said an appropriate rating under Table 5 is 20 points and that she had poor concentration and poor memory.[102]
[102] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 2, Report of Dr Ziukelis dated 19
January 2017.
In January 2017 Dr Richard Moore, Psychologist, reported that Ms Struz is unfit for work and has symptoms such as low mood, psycho-motor retardation and cognitive impairment.[103]
[103] Exhibit 3, Report of Dr Moore, dated 30 January 2017.
The Respondent contended that because Dr Ziukuleis did not elaborate as fully as the Descriptors allow to explain why he believed a 20 point rating was appropriate, the highest rating that could be applied is 10 points. I do not accept that. I see no reason why an appropriately qualified specialist cannot, having considered the Table, report on what, in their considered opinion, is the appropriate impairment rating. I also know of no evidence that contradicts the specialist’s reports.
Based on the medical evidence, in particular, that of Ms Struz’s consulting psychiatrist and psychologist, I find that Ms Struz’s Psychiatric Impairments are having a “severe” functional impact on activities as at the Qualification Period. Therefore, the appropriate impairment rating to be assigned to this condition under Table 5 of the Impairment Tables is 20 points.
IS MS STRUZ’S WILSON’S DISEASE IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The JCA concluded on 6 June 2016 that Ms Struz’s Wilson’s Disease was not fully treated and stabilised because, at that time, Ms Struz had only recently commenced medication in March 2016 and was awaiting a neurologist review in July 2016.[104]
[104] Exhibit 1, T Documents, T20, page 213, JCA Report dated 6 June 2016.
The Respondent contends that Ms Struz’s Wilson’s Disease was not fully diagnosed.[105] While some of the medical evidence indicates there may have been doubts in the early stages of diagnosis, on 1 September 2016 Dr Azizi, Consultant Gastroenterologist and Hepatologist, reported that he diagnosed Ms Struz with Wilson’s Disease in February 2016 after multiple investigations and that it is a chronic genetic condition that will require life-long treatment and follow-up by a gastroenterologist.[106] I see no reason to dispute
[105] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 4.16.
[106] Exhibit 1, T Documents, T37, page 306, Report of Dr Azizi dated 1 September 2016.
Dr Azizi’s diagnosis.
The Respondent says Dr Azizi does not set out the basis for the diagnosis and the other medical evidence raises a question as to whether or not the diagnosis is correct. However, Dr Fitzgerald is a radiologist and it is not his role to diagnose Wilson’s disease. He was clearly performing early stage testing to see the extent of damage, if any, the Wilson’s Disease had had on Ms Struz’s brain. Similarly, Dr Chen, a Neurologist, was not engaged to diagnose Wilson’s disease but was clearly performing early stage testing to see the extent of damage, if any, the Wilson’s Disease had had given Ms Struz’s mental slowness and mild cognitive impairment.
On 14 November 2016, Associate Professor Mohammad Al-Freah, Gastroenterologist and Hepatologist, reported that Ms Struz was now suffering from liver cirrhosis and multiple neuropsychiatric manifestations resulting from Wilson’s Disease. Associate Professor Mohammad Al-Freah says Ms Struz is debilitated by this illness and will find significant difficulties trying to work regularly as a result.[107]
[107] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 1, Report of Dr Al-Freah dated 14
November 2016.
On 30 December 2016 Dr Bashar Abdulrazak reported that this condition was having a severe functional impact on Ms Struz.[108]
[108] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 2, Report of Dr Abdulrazak dated
14 November 2016.
In January 2017 Dr J.K. Ziukelis reported that her brain injury, resulting from the Wilson’s Disease, is permanent and will likely deteriorate. Dr Ziukelis reports that this condition is having a moderate functional impact.[109]
[109] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 2, Report of Dr Ziukelis dated 19
January 2017.
As at 12 April 2017, Ms Struz was on a waiting list to be reviewed by the Cognitive Disorders Clinic at Gold Coast University Hospital.
Subsequent to the hearing Ms Struz provided an undated report from the Memory Clinic at Gold Coast University Hospital. The report was prepared by Dr Emily Gallagher Geriatric Advance Trainee Registrar for Dr Ganesamoorthy Subakumar Physician for Aged Care and was noted as “sighted but not signed”. Dr Gallagher confirms that Ms Struz attended the Memory Clinic and reported that based on their examination:
…there is clear evidence of some cognitive impairment with some memory and significant verbal fluency/language deficits. This is [a] very complex case so we will refer Mrs Struz to see our Neuropsychologist Dr Aimee Jefferies for more detailed cognitive assessment including language battery and higher function testing as these are domains most commonly affected in Wilson's disease. We will discuss her case at our Geriatric meeting and also liaise with her treating Neurologist about the next best steps to take.
The Respondent contends that Ms Struz’s Wilson’s Disease was not fully treated and stabilised because it was still undergoing investigation and review.[110] I do not agree with this contention. Wilson’s Disease, as explained by Dr Azizi, Associate Professor Al-Freah and Dr Ziukelis, is a serious ongoing chronic condition, which is only going to deteriorate Ms Struz’s physical and mental health over time. Yes, Ms Struz will require ongoing monitoring and review, but this does not mean that she has not been fully treated or that the condition was not fully stabilised. I note that the Respondent was unable to identify or explain what further treatment he believed Ms Struz should have had for this condition.
[110] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 4.19.
I find that Ms Struz’s Wilson’s Disease was permanent for the purposes of the Act and that an Impairment Rating can now be assigned.
Relevant Impairment Table and Impairment Rating
Table 7 of the Determination, which deals with Mental Health Function is the relevant Table.
The introduction to Table 7 provides that:
·     Table 7 is to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function.
·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·     Self-report of symptoms alone is insufficient.
·     There must be corroborating evidence of the person’s impairment.
·     Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a specialist health practitioner (e.g. neurologist, rehabilitation physician, psychiatrist or neuropsychologist) supporting the diagnosis of conditions associated with neurological or cognitive impairment (e.g. acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain);
oresults of diagnostic tests (e.g. Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG));
oresults of cognitive function assessments.
·     The signs and symptoms of neurological or cognitive impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·     For neurological or cognitive conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
·     A person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table.
·     Table 7 should not be used when a person has an impairment of intellectual function already assessed under Table 9, unless the person has an additional condition affecting neurological or cognitive function.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact resulting from a neurological or cognitive condition.
(1)The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a)memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(b)attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(c)problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(d)planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(e)decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(f)comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(g)visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(h)behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(j)self awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
In January 2017 Dr J.K. Ziukelis reported that Ms Struz required memory aids, had difficulty concentrating, slurred speech, thinking and movement, past episodes of psychosis, depressed mood and cognitive deterioration in keeping with the onset of early dementia.[111]
[111] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 2, Report of Dr Ziukelis
dated 19 January 2017.
Dr Mishra, Neurologist, reported in October 2016 noted that Ms Struz was bradykinetic and has a support staff member helping her with activities of daily living.[112]
[112] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 1, Report of Dr Mishra dated
24 October 2016.
On 28 December 2016 Dr Bashar Abdulrazak reported that this condition was having a severe functional impact on Ms Struz and assigned an impairment rating of 20 points under Table 7.[113]
Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 2, Report of Dr Abdulrazak dated 14 November 2016.
In January 2017 Dr J.K. Ziukelis reported that her brain injury, resulting from the Wilson’s Disease, is permanent and will likely deteriorate. Dr Ziukelis reports that this condition is having a moderate functional impact.[114]
[114] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 2, Report of Dr Ziukelis dated
19 January 2017.
Dr Ziukelis reports that this condition is having a moderate functional impact.[115]
[115] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 2, Report of Dr Ziukelis dated
19 January 2017.
The experts seem to vary between describing the functional impacts of these conditions as being moderate to severe. This may be because they are also considering the mental health impairment dealt with under a different Table, Table 5.
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[116] Therefore, I find that Ms Struz’s Wilson’s Disease Impairment is having a “moderate” functional impact on activities as at the Qualification Period. Therefore, the appropriate impairment rating to be assigned to this condition under Table 5 of the Impairment Tables is 10 points.
IS MS STRUZ’S OSTEOARTHRITIS IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
[116] Determination, see s 11(1).
The Respondent contends that Ms Struz’s Osteoarthritis was not fully diagnosed, treated and stabilised.[117]
[117] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, para 4.29.
The JCA reported that Ms Struz said she had had 3 physiotherapy sessions and 2 podiatry sessions and was due to have further sessions in the near future and concluded that Ms Struz had had limited physical therapy and there was likely to be some improvement with physical therapy and specialist interventions.[118]
[118] Exhibit 1, T Documents, T20, page 212, JCA Report dated 6 June 2016.
The physiotherapist recommended further physiotherapy treatments would be beneficial.[119] Ms Struz gave evidence at the hearing that she is still being treated but does not have as many sessions because of the cost. She currently wears a leg brace.
[119] Exhibit 1, T Documents, T23, page 228, Report of Natasha Le, physiotherapist, dated 15 April 2016.
On 28 December 2016 Dr Bashar Abdulrazak reported that this condition was also associated with Ms Struz’s Wilson’s Disease.[120]
[120] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment 2, Report of Dr Abdulrazak dated
14 November 2016.
It is not clear from the medical evidence whether this condition has been fully treated.
I find that Ms Struz’s osteoarthritis condition has not been fully treated or fully stabilised as, during the Qualifying Period, it is uncertain whether:
(a)Ms Struz would benefit from further treatment, physical therapy and specialist consultation;
(b)any further reasonable treatment is likely to result in significant functional improvement, in relation to this condition, to a level enabling Ms Mills to undertake work in the next 2 years; and
(c)Ms Struz has undertaken reasonable treatment for the condition.
I, therefore, find that, as at the Qualification Date, Ms Struz’s osteoarthritis impairment is not permanent and no Impairment Rating can be assigned.
DID MS STRUZ HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that some of Ms Struz’s Impairments are permanent therefore it is necessary for me to consider whether Ms Ward had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
Ms Ward’s Mental Health Impairment has attracted 20 points under one single Impairment Table (i.e. it is a “severe impairments” as defined in s 94(3B)).
In the case of a severe impairment a person has a continuing inability to work pursuant to section 94(2) if:
(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.
The JCA concluded that the current functional impacts resulted in a “temporary work capacity of 0-7 hours per week”.[121]
[121] Exhibit 1, T Documents T20, page 215, Job Capacity Assessment Report dated 6 June 2016.
The medical evidence indicates that Ms Struz mental health impairment in and of itself is sufficient to prevent the person from undertaking a training activity during the next 2 years.
The Respondent conceded at the hearing that in the event that Ms Struz’s condition was found to be severe, the evidence supported a finding that she would have a continuing inability to work.
Therefore, I find that as at the Qualification Period Ms Struz had a continuing inability to work under section 94(1)(c)(i).
CONCLUSION
Ms Struz satisfied the Section 94 Requirement and therefore qualified for DSP during the Qualification Period.
The decision under review is set aside.

I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.................................[Sgd].......................................
Associate
Dated: 6 July 2017

Date of hearing: 30 May 2017

Applicant: By telephone

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1037

6 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date of hearing:	30 May 2017
Applicant:	By telephone
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services