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

Turnbull and Secretary, Department of Social Services (Social services second review) [2016] AATA 976 (1 December 2016)

Division

GENERAL DIVISION

File Number

2016/0659

Re

Elise Turnbull

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Member D K Grigg

Date 1 December 2016

Place Brisbane
The Tribunal affirms the decision under review.

.........................[Sgd]...............................................
Member D K Grigg
Catchwords
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.
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
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.
REASONS FOR DECISION
Member D K Grigg
1 December 2016
INTRODUCTION

Ms Turnbull is 33 years old. She has been a recipient of the Disability Support Pension (“DSP”) since 28 October 2009 for chronic fatigue syndrome.[1] However, on 13 October 2015, after a medical review, Ms Turnbull’s DSP was cancelled by the Department of Human Services (Centrelink).[2]
[1] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 11 October 2016, para 5.
[2] Exhibit 1, T Documents, T4, page 38, Letter from Centrelink to Ms Turnbull dated 13 October 2015.
Claim History
Ms Turnbull sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Ms Turnbull’s medical conditions did not attract 20 points or more under the Impairment Tables and that she did not have a continuing inability to work.[3]
[3] Exhibit 1, T Documents, T5, pages 40-44, Decision of ARO dated 8 December 2015.
On 16 December 2015, Ms Turnbull lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[4] The SSCSD rejected Ms Turnbull’s claim and affirmed the ARO’s decision on 6 January 2016.[5]
[4] Exhibit 1, T Documents, T6, pages 48-49, SSCSD Request.
[5] Exhibit 1, T Documents, T2, pages 4-9, SSCSD’s Decision and Reasons for Decision dated 6 January 2016.
Ms Turnbull has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1-3, Ms Turnbull’s Application for Review dated 8 February 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 Turnbull must have a physical, intellectual or psychiatric impairment;
(b)Ms Turnbull’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”).[7]
(c)Ms Turnbull must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of s 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[8]
[8] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Ms Turnbull must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 13 October 2015 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Turnbull’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.[9]
DID MS TURNBULL HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[9] 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”.[10]
[10] Determination, s 3.
Ms Turnbull’s medical conditions
Ms Turnbull was diagnosed by Dr Rene Dupuche, a consultant physician, as suffering from “post viral chronic fatigue syndrome” in May 2008 following 2 years of Ms Turnbull feeling unwell following a viral infection.[11]
[11] Exhibit 1, T Documents, T12, page 63, Letter from Dr Rene Dupuche, consultant physician, outlining diagnosis
dated 10 May 2008.
In 2009, Dr Vid Mikus, Ms Turnbull’s general practitioner at that time, described Ms Turnbull’s functional symptoms resulting from her chronic fatigue syndrome at that time as “low energy state”, “easy fatigability” and “some mood swings”.[12]
[12] Exhibit 1, T Documents, T15, pages 68 - 75, Medical Report of Dr Vid Mikus dated 30 October 2009.
Dr Mikus reported that this condition “precludes employment”.[13]
[13] Exhibit 1, T Documents, T15, pages 68 - 75, Medical Report of Dr Vid Mikus dated 30 October 2009.
A Job Capacity Assessment (“JCA”) was conducted face-to-face with Ms Turnbull on 30 November 2009 by a Registered Psychologist. The JCA assessors’ report states that Ms Turnbull suffered from chronic fatigue syndrome which was found to be fully diagnosed, fully treated and fully stabilised.[14]
[14] Exhibit 1, T Documents, T16, pages 76-80, Job Capacity Assessment conducted on 30 November 2009.
In 2014 Dr Shunil Sharma, a consultant rheumatologist, confirmed that Ms Turnbull was still presenting with fibromyalgia/chronic fatigue syndrome.[15] Dr Shunil also suggested the possibility of Ms Turnbull suffering from panic attacks and depression in his report dated 9 October 2015 and recommended that Mr Turnbull be reviewed by a psychiatrist.
[15] Exhibit 1, T Documents, T17, pages 81-82, Letter from Dr Shunil Sharma, consultant rheumatologist, dated 9
October 2014.
At Centrelink’s request a medical review of Ms Turnbull was conducted in early 2015. Dr Tiller, Ms Turnbull’s general practitioner at that time, reported that Ms Turnbull was still suffering from chronic fatigue syndrome and secondary fibromyalgia.[16] Dr Tiller also reported that Ms Turnbull was suffering:
(a)from “secondary depression” resulting from her chronic fatigue syndrome and that it was generally well managed and had minimal or limited impact of Ms Turnbull’s ability to function;[17] and
(b)poor cognition, memory, concentration, task completion and problem solving and that this was likely to persist for more than 24 months.[18]
[16]         Exhibit 1, T Documents, T19, pages 84-93, Medical review report of Dr Tiller dated 6 May 2015.
[17]         Exhibit 1, T Documents, T19, page 92, Medical review report of Dr Tiller dated 6 May 2015.
[18]         Exhibit 1, T Documents, T19, page 88, Medical review report of Dr Tiller dated 6 May 2015.
On 2 September 2015 another JCA was conducted face-to-face with Ms Turnbull by a qualified Social Worker. The JCA assessors’ report states that Ms Turnbull’s chronic fatigue syndrome is fully diagnosed, fully treated and fully stabilised.[19] No mention was made in the JCA to any mental health condition such as anxiety or depression.
[19] Exhibit 1, T Documents, T21, pages 101-106, Job Capacity Assessment dated 2 September 2015.
In October 2015 Dr Tiller reported that Ms Turnbull:[20]
·“has the same level of incapacity that she had in 2009 and the condition remains fully diagnosed fully treated and stable”;
·“is incapable of any regular work at this time”.
[20] Exhibit 1, T Documents, T22, page 107, Letter from Dr Tiller dated 27 October 2015.
In October 2016 Dr Tiller reported that:[21]
·Ms Turnbull’s condition was “fully diagnosed, fully treated and stabilized”;
·“she is not able to undertake any form of work”;
·“Any work would seriously impact on her health”.
[21] Letter from Dr Tiller dated 18 October 2016.
In March 2016 Ms Turnbull was referred to Dr Helen Duff, a clinical psychologist, for treatment of anxiety and panic symptoms.[22] As at October 2016 Ms Turnbull had attended 9 sessions with Dr Duff. Dr Duff reported that Ms Turnbull “continues to experience instability in mood in response to dealing with her ongoing uncertainty in health and financial contexts and that Ms Turnbull would be continuing treatment.[23]
[22] Exhibit 6, Letter from Dr Helen Duff dated 6 July 2016.
[23] Exhibit 6, Letter from Dr Helen Duff dated 12 October 2016.
The Respondent accepts that Ms Turnbull suffers from impairments arising from her chronic fatigue syndrome for the purposes of section 94(1)(a) at the Qualification Date.[24]
[24] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 11 October 2016, para [35].
Conclusion on Impairment
In light of the above evidence I conclude that at the Qualification Date Ms Turnbull suffered an Impairment, namely chronic fatigue syndrome with secondary fibromyalgia, for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
I will discuss Ms Turnbull’s contention that she also suffered from an anxiety condition and poor cognition as at the Qualification Date, further below.
DOES MS TURNBULL’S IMPAIRMENT 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.[25] They are function based[26] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[27]
[25] Determination, s 4(2) and 5(2)(a).
[26] Determination, s 5(2)(b) and (c).
[27] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[28]
(a)Ms Turnbull’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.
[28] Determination, see s 6(3).
Ms Turnbull’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[29]
(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.
[29] 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[30] the following must be considered:[31]
(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.
[30] For the purposes of ss 6(4)(a) and (b) of the Determination.
[31] Determination, see s 6(5).
A condition is fully stabilised[32] if:[33]
(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[34]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[32] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[33] Determination, see s 6(6).
[34] 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.
However, before applying the Tables I must first consider Ms Turnbull’s medical history, in relation to the condition causing the Impairments.[35]
[35] Determination, see s 6(2).
I will now consider Ms Turnbull’s Impairments.
Chronic Fatigue Syndrome/Secondary Fibromyalgia Impairment
Is Ms Turnbull’s chronic fatigue syndrome/secondary fibromyalgia permanent and likely to persist for at least 2 years?
At the hearing Ms Turnbull submitted that her fibromyalgia should be considered as a separate impairment to her chronic fatigue syndrome. However, Dr Sharma, the consulting rheumatologist who reviewed Ms Turnbull in October 2014, considers that the fibromyalgia and chronic fatigue are “one process”.[36] Dr Tiller, Ms Turnbull’s current general practitioner, gave evidence before me that the conditions “usually come together”. There was no submission made that the fibromyalgia affects Ms Turnbull functional ability differently to her chronic fatigue impairment.
[36] Exhibit 1, T Documents, T17, pages 81-82, Letter from Dr Shunil Sharma, consultant rheumatologist, dated 9
October 2014.
There is no doubt on the medical evidence available that Ms Turnbull’s chronic fatigue syndrome is permanent and likely to persist for at least two years.[37]
[37] See Exhibit 1, T Documents, T16, pages 76-80, Job Capacity Assessment conducted on 30 November 2009;
Exhibit 1, T Documents, T17, pages 81-82, Letter from Dr Shunil Sharma, consultant rheumatologist, dated 9 October 2014; Exhibit 1, T Documents, T19, pages 84-93, Medical review report of Dr Tiller dated 6 May 2015; Exhibit 1, T Documents, T21, pages 101-106, Job Capacity Assessment dated 2 September 2015; Exhibit 1, T Documents, T22, page 107, Letter from Dr Tiller dated 27 October 2015; Exhibit 8, Letter from Dr Tiller dated 18 October 2016.
The Respondent concedes that Ms Turnbull’s chronic fatigue syndrome with secondary fibromyalgia was fully diagnosed, fully treated and fully stabilised at the Qualification Date.[38]
[38] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 11 October 2016, para 47.
Therefore, I find that as at the Qualification Date Ms Turnbull’s chronic fatigue syndrome Impairment was permanent for the purpose of the Act.
USING THE IMPAIRMENT TABLES
I have to assess the level of impact of Ms Turnbull’s chronic fatigue impairment against the descriptors[39] (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).[40]
[39] Determination, see ss 3 and 5(3).
[40] 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.[41]
[41] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[42]
(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.
[42] Determination, see s 7.
I must not take into account the following information in applying the Tables:[43]
(d)symptoms reported by Ms Turnbull in relation to his condition where there is no corroborating evidence;
(e)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Turnbull’s local community.
[43] Determination, see s 8.
Which Tables are appropriate are determined by:[44]
(f)identifying the loss of function; then
(g)referring to the Table related to the function affected; then
(h)identifying the correct impairment rating.
[44] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[45]
[45] Determination, see s 10(3).
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.[46]
[46] 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.[47]
[47] 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.[48]
[48] Determination, see s 11(5).
EVIDENCE IDENTIFYING THE LOSS OF FUNCTION
The JCA conducted in September 2015 reported that the symptoms reported by Dr Tiller included:[49]
…inability to stand and walk for prolonged periods of time, muscle pain, imaird cognition and memory function, social isolation.
Reports current symptoms include labile mood, mood swings, poor sleep pattern, reduced concentration and memory in addition to periods of frustration that may lead to anger.
[49] Exhibit 1, T Documents, T21, page 102, Job Capacity Assessment report dated September 2015.
The JCA reported that the condition was having a moderate impact on Ms Turnbull’s ability to function. The JCA reported that Ms Turnbull reported as follows:[50]
…body pain is variable body pain with severe flare ups leaving her totally exhausted and unable to walk from bed to bathroom. Facial pain is constant as is pain in her hips and down her legs....experiences chest and muscle pain through to the bone....she lives alone in the small unit and attends to her own daily self-care needs...she does housework when she is able, including changing bed linen...she has purchased a dishwasher...does her shopping with breaks over about a two hour period (but has in the past had food cooked and delivered)...travels by public transport and is able to walk 30 minutes slowly without a break...she is able to use the computer for about an hour at one sitting. In 2013 client managed to fly to Thailand for a two week holiday with some difficulty.
[50] Exhibit 1, T Documents, T21, page 103, Job Capacity Assessment report dated September 2015.

At the hearing before me Ms Turnbull gave evidence that as at the Qualification Date:-
·She was living by herself
·She could clean and do housework by herself, although not very frequently due to her chronic fatigue
·She was socially isolated (in part by choice as she found it easier to manage that way).
·She does not socialise very often as she never knows if she will have to cancel because of her fatigue and associated pain
·She was able to prepare her own breakfast and lunch but since March 2015 she had her dinner meals delivered to her home by UFoodz[51]
·Most of her time was spent going to and from medical and allied health appointments
·She was able to shop when necessary but not often
·She manages her own bills and accounts
[51] Exhibit 4, UFoodz Order History.
The question therefore is what the relevant Table to be considered is and what, if any, Impairment Rating should be assigned.
RELEVANT IMPAIRMENT TABLE AND IMPAIRMENT RATING
In light of the evidence I consider that Table 1 of the Determination, which deals with Functions requiring Physical Exertion and Stamina, is the relevant Table.
The introduction to Table 1 provides that:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·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 medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing
The Respondent submits that an appropriate Impairment Rating is 10 points.[52]
[52] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 11 October 2016, para 52.
The JCA concluded that the chronic fatigue Impairment warranted a total impairment rating of 10 points.[53]
[53] Exhibit 1, T Documents, T21, page 102, Job Capacity Assessment report dated September 2015.
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 requiring physical exertion or stamina.
The Descriptors for an Impairment Rating of 10 points are:
(1) The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
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 requiring physical exertion or stamina.
The Descriptors for an Impairment Rating of 20 points are:
(1)      The person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)      use public transport without assistance; or
(iv)      perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)       has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
The medical evidence regarding the functional impact of Ms Turnbull’s chronic fatigue is limited as it is largely based on Ms Turnbull’s self-report of what she can and cannot do.
However, based on the medical evidence available and the evidence given by Ms Turnbull and Dr Tiller, I find that Ms Turnbull’s chronic fatigue impairment is having a “moderate” functional impact on activities as at the Qualification Period. Therefore, the appropriate impairment rating to be assigned for this condition under Table 1 of the Impairment Tables is 10 points.
At the hearing before me Ms Turnbull conceded that an Impairment Rating of 10 points was the appropriate rating for her chronic fatigue Impairment.
Anxiety/Panic attacks
Dr Tiller reports that Ms Turnbull has had chronic anxiety and panic attacks since July 2006.[54]
[54] Exhibit 8, Verification of Medical Conditions by Dr Tiller dated 18 October 2016.
Ms Turnbull says she was diagnosed by a general practitioner at Austin Health as suffering from anxiety in 2009. Ms Turnbull referred me to various records of Epic Health Medical which refer to her having issues with anxiety.[55] Ms Turnbull says she was being treated by a general practitioner and psychotherapist at Epic Health.
[55] Exhibit 3, Epic Health Medical Overview records.
Ms Turnbull had also prescribed Alprazolam by Epic Health in 2009 for her panic attacks. Dr Tiller says the last time he prescribed Alprazolam for Ms Turnbull was in October 2014. He said the prescription would have been for 50 tables which she takes sparingly on an as needs basis only.
Ms Turnbull was not referred to a clinical psychologist, Dr Duff, until March 2016. It is unclear whether Dr Duff has made any specific diagnosis from her letters. However, she has been treating Ms Duff since March 2016 for her anxiety and panic symptoms.[56]
[56] Exhibit 6, Letters from Dr Helen Duff dated 6 July 2016.
No reference was made in the JCA report of 2 September 2015 of any mental health condition.[57]
[57] Exhibit 1, T Documents, T 21, pages 101 - 106, Job Capacity Assessment report dated 2 September 2015.
Ms Turnbull was clearly experiencing some degree of notable anxiety and suffering from panic attacks in 2009.
However, Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health 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). Without such a diagnosis no Impairment Rating can be assigned.
Ms Turnbull was reviewed by a clinical psychologist in March 2016 for the first time. This is 5 months after the Qualification Date. The date of Dr Duff’s diagnosis is unclear, however it was clearly on or after March 2016.
There is no evidence of a diagnosis made by a psychiatrist or clinical psychologist as at the Qualification Date.
Ms Turnbull confirmed, at the hearing before me, that these conditions had not been diagnosed by a psychiatrist or clinical psychologist as at the Qualification Date.
As a result I find that Ms Turnbull’s mental health condition was not fully diagnosed. Therefore, no Impairment Rating can be assigned.
However, even if I had found that Ms Turnbull’s anxiety condition had been diagnosed by an appropriately qualified medical practitioner, as required by the Determination, I would have found that the condition was not fully treated and not fully stabilised. Ms Turnbull has only had sessions with Dr Duff since March 2016. In October 2016 Dr Duff reports that she had attended 9 sessions. Dr Duff says Ms Turnbull “has engaged positively with therapy” although “continues to experience instability in mood”. Dr Duff then outlined the planned continued treatment. It is clear therefore that Ms Turnbull’s anxiety and panic symptoms have not as yet stabilised. As a result no Impairment Rating can be assigned.
Further, based on the evidence available of the effects of the anxiety on Ms Turnbull’s ability to function, an Impairment Rating of 5 points would be the highest rating considered. This is because Ms Turnbull has only mild difficulties with the following:
(i)self-care and independent living – she lives independently but may sometimes neglect self-care, grooming or meals;
(j)social/recreational activities and travel – Ms Turnbull is not actively involved in social or recreational activities, however she does frequently go out alone, such as to the shops or her medical appointments. In 2013 she was able to go on a two week holiday to Thailand with her sister.
In terms of Ms Turnbull’s ability to concentrate and complete tasks, I note that:
(k)there is no corroborative or medical evidence that Ms Turnbull has difficulty concentrating for more than an hour;
(l)Ms Turnbull was able to concentrate at the hearing which lasted for approximately 2.5 hours. Ms Turnbull clearly articulated her arguments and was able follow and respond to the Respondent’s submissions. Despite being asked several times if she required a break in the proceeding she said she did not;
(m)Ms Turnbull has, without assistance, pursued freedom of information type requests of various medical notes for the purpose of the hearing and has recently, again without assistance, made a complaint against a doctor to the Australian Information Commissioner.
Ms Turnbull has no difficulty making appointments and attending them when scheduled.
Cognitive Impairment
Dr Tiller reports Ms Turnbull has poor cognition, memory, concentration, task completion and problem solving and that this was likely to persist for more than 24 months.[58]
[58] Exhibit 1, T Documents, T19, page 88, Medical review report of Dr Tiller dated 6 May 2015.
No reference was made in the JCA report of 2 September 2015 of any cognitive impairment condition.[59]
[59] Exhibit 1, T Documents, T 21, pages 101 - 106, Job Capacity Assessment report dated 2 September 2015.
The medical evidence regarding the functional impact of Ms Turnbull’s chronic fatigue is limited as it is largely based on Ms Turnbull’s self-report of what she can and cannot do.
Table 7 of the Determination, which relates to brain function, specifically provides that self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment.
In terms of Ms Turnbull’s ability to concentrate and complete tasks, I repeat my earlier comments in paragraphs 75 and 76 above.
There is no evidence from a neurologist or any other appropriate medical practitioner confirming brain function impairment.
As a result I find that Ms Turnbull’s cognitive impairment has not been fully diagnosed. There is also no evidence of any treatment provided for the condition.
Therefore, I am unable to assign an Impairment Rating.
WERE MS TURNBULL’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
I have found that the Impairment Rating for Ms Turnbull’s chronic fatigue/secondary fibromyalgia Impairment was 10 points.
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b).
DID MS TURNBULL HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Ms Turnbull’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether Ms Turnbull 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.
CONCLUSION
Ms Turnbull’s claim fails. Her impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result she does not qualify for DSP at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

...........................[Sgd].............................................
Associate
Dated 1 December 2016

Date of hearing

Applicant

9 November 2016

In person

Solicitors for the Respondent
Department of Human Services

[2016] AATA 976

1 December 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Division	GENERAL DIVISION
File Number	2016/0659
Re	Elise Turnbull
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Member D K Grigg
Date	1 December 2016
Place	Brisbane