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

Williams; Secretary, Department of Social Services and (Social services second review) [2018] AATA 858 (11 April 2018)
Division:GENERAL DIVISION
File Number: 2017/1855
Re:Secretary, Department of Social Services
APPLICANT

AndRobin Williams
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:11 April 2018
Place:Brisbane

The Tribunal affirms the decision under review.
........................[Sgd]................................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairments permanent – whether impairments attracted 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)
Social Security (Active Participation for Disability
REASONS FOR DECISION
Member D K Grigg
11 April 2018
INTRODUCTION AND CLAIMS HISTORY

On 14 May 2016 Mr Williams lodged a claim for Disability Support Pension (“DSP”) describing his medical conditions as follows:[1]
[1] Exhibit 1, T Documents, T 17, pages 119 – 148, Mr Williams’ Claim for DSP dated 14 May 2016.
·anxiety/depression
·osteoarthritis neck
·nerve damage right arm
·PTSD
·anhedonia
·multiple head traumas
·high blood pressure
·memory problems
·gout
In support of Mr Williams claim for DSP Dr Elizabeth Harris, General Practitioner, confirmed that Mr Williams has PTSD, post-concussion syndrome, gout, hypertension and osteoarthritis in his neck.[2]
[2] Exhibit 1, T Documents, T 18, page 150, Letter from Dr Harris dated 14 June 2016.
On 7 July 2016 Dr Conolly, General Practitioner, reported that Mr Williams:[3]
(a)had anxiety, depression, panic attacks and social phobia with an uncertain prognosis;
(b)was being treated with Alprax; and
(c)could not cope with social situations.
[3] Exhibit 1, T Documents, T 19, page 151, Medical Certificate of Dr Connolly dated 7 July 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mr Williams’ claim for DSP on the basis that he did not have impairments with a total impairment rating of 20 points or more.[4]
[4] Exhibit 1, T Documents, T 22, pages 159 – 160, Rejection of claim for DSP dated 26 July 2016.
In August 2016 Mr Williams sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).[5]
[5] Exhibit 1, T Documents, T 23, page 161, Letter from Centrelink to Mr Williams dated 23 August 2016.
On 26 September 2016 Dr Conolly, General Practitioner, reported that Mr Williams:[6]
(a)still had anxiety, depression, panic attacks and social phobia with an uncertain prognosis;
(b)was still being treated with Alprax; and
(c)could not cope with social situations.
[6] Exhibit 1, T Documents, T 24, page 162, Medical Certificate of Dr Connolly dated 26 September 2016.
On 27 September 2016 Relationships Australia Queensland confirmed that:[7]
(a)it had provided Mr Williams with 17 telephone trauma counselling sessions since 16 June 2015;
(b)the counselling sessions have included “trauma counselling in response to complex trauma associated with being the victim of an assault. Interventions have focused on self-care strategies, well-being and managing anxiety that you report impacts on your experience of safety and security”; and
(c)a further counselling session was planned.
[7]Exhibit 1, T Documents, T 25, page 163, Letter from Relationships Australia Queensland dated 27 September 2016.
The subsequent review by the ARO was unsuccessful on the grounds that
[8] Exhibit 1, T Documents, T 26, pages 164 – 171, Decision of ARO and Notes dated 5 October 2016.
Mr Williams’ medical conditions were not permanent, as defined in the Social Security Act 1991 (Cth) (the “Act”), or did not attract an impairment rating of 20 points or more, and he did not meet the program of support requirements.[8]
Mr Williams lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 13 October 2016.[9] The SSCSD set aside the decision under review and determined that Mr Williams was qualified for DSP from 5 May 2016.[10]
[9]Exhibit 1, T Documents, T 27, pages 172 – 173, Letter from AAT to Centrelink regarding appeal dated 13 October 2016.
[10] Exhibit 1, T Documents, T2, pages 4– 20, SSCSD’s Decision and Reasons for Decision dated 21 February 2017.
The Secretary has sought a review of the SSCSD’s decision by this Tribunal.[11]
[11] Exhibit 1, T Documents, T1, pages 1–3, Application for Review of Decision dated 30 March 2017.
ISSUES FOR DETERMINATION
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Williams must have a physical, intellectual or psychiatric impairment;
(b)Mr Williams’ impairment/s 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”);[12]
(c)Mr Williams has a continuing inability to work.
[12] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Williams meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 14 May 2016), unless Mr Williams becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[13] Therefore, to qualify for DSP Mr Williams must have met the Section 94 Requirements between 14 May 2016 and 13 August 2016 (“Qualification Period”).
[13] 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 Mr Williams’ impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[14]
DID MR WILLIAMS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[14] 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”.[15]
Mr Williams’ medical conditions
[15] Determination, s 3.
Upper Limbs
In 2005 Mr Williams was involved in a motorcycle accident in which he sustained an injury to his cervical spine and right elbow. In 2011 Dr Malcolm Wallace, Orthopaedic Surgeon, reported that:[16]
(a)Mr Williams had ongoing right elbow pain and paraesthesia in the right upper limb but that there was no indication of ulnar nerve irritation;
(b)in his opinion he did not believe any surgical treatment was indicated and that it was “possible that his symptoms are referred from his cervical spine and…This is his major problem”;
(c)he recommended he should be treated with local heat, stretching exercises, simple analgesia and anti-inflammatory agents;
(d)his condition had reached maximum medical improvement after six years;
(e)there is a psychological injury which should be assessed by a suitably qualified practitioner; and
(f)Mr Williams should be able to continue with his studies in nursing with some limitations with respect to heavy lifting or repetitive use of his right upper limb.
[16] Exhibit 1, T Documents, T5, pages 70 – 76, Medical report of Dr Wallace dated 2 September 2011.
Hypertension
In 2011 Dr Wallace reported that Mr Williams had hypertension for which he was not receiving any treatment.[17]
[17] Exhibit 1, T Documents, T5, page 73, Medical report of Dr Wallace dated 2 September 2011.
On 14 June 2016 Dr Harris reported that Mr Williams had hypertension.[18]
[18] Exhibit 1, T Documents, T 18, page 150, Medical report of Dr Harris dated 14 June 2016.
Depression/post-traumatic stress disorder
In 2011 Mr Williams told Dr Wallace that he was severely depressed and was diagnosed as suffering from PTSD following the motorcycle accident and had been treated with antidepressants which he found made him worse.[19]
[19] Exhibit 1, T Documents, T5, page 72, Medical report of Dr Wallace dated 2 September 2011.
On 1 September 2011 Mr Williams was interviewed by Dr Jennifer Lockwood, Consultant Psychiatrist, in relation to a claim for damages for personal injuries arising out of the motor vehicle accident in 2005. Dr Lockwood reported:[20]
[20] Exhibit 1, T Documents, T6, pages 78 – 103, Medical report of Dr Lockwood dated 21 September 2011.
(a)Mr Williams described a long history of chronic depression;
(b)her examination of Mr Williams’ psychiatric and developmental history suggests that he has long-standing difficulties with various substance abuses including periods of heavy alcohol use, polysubstance abuse and some periods of prescription misuse;
(c)it appears that Mr Williams has had long periods of time during which he has had symptoms of chronic depression and anxiety often associated with substance abuse and markedly impaired function vocationally, socially and possibly interpersonally;
(d)there is the impression that he has some vulnerabilities to depression, anxiety and also towards impulsive and at times disruptive behaviour;
(e)he has a personal history notable for recurrent interpersonal difficulties;
(f)he was reasonably stable at the time of his motorbike accident in 2005;
(g)after the accident he developed chronic medical symptoms which for various reasons were difficult to diagnose and had taken a long time to diagnose or treat and he has been left with chronic symptomatology;
(h)in the aftermath of the accident he developed symptoms of anxiety, depression and substance abuse and his general functioning deteriorated;
(i)Mr Williams’ only recently achieved some kind of stability in the last 18 to 24 months but continues to have symptoms of anxiety, depression, neurovegetative problems and intermittent substance difficulties;
(j)Mr Williams’ diagnosis is fairly complex and he has some personality vulnerabilities that predispose him to impulsivity and interpersonal difficulties and difficulties in adjusting to difficult life circumstances;
(k)“at the present time it would appear his psychiatric difficulties most likely more satisfy the diagnostic criteria for chronic and long-standing Adjustment Disorder with anxiety and depressed mood which for a period of time was complicated by alcohol abuse independence and cannabis abuse. His symptoms were particularly severe for around 12 months after the accident and during this time he also had some symptoms of post-dramatic stress disorder. It is my impression that he actually had the full symptoms of PTSD, though at the present time he does not have sufficient symptoms to diagnose ongoing post-dramatic stress disorder despite having residual symptomatology”;
(l)Mr Williams’ symptoms have settled with increasing personal and vocational stability but he remains impaired in terms of his social and interpersonal function and his ability to deal with stressful circumstances;
(m)he has only had very limited treatment in 2008/2009 (12 psychological sessions) which appeared to be quite helpful to him;
(n)Mr Williams would benefit from further psychological sessions and should have fortnightly psychological sessions with supportive and cognitive behavioural therapy for at least a three month period, possibly longer;
(o)in the long term Mr Williams would benefit from quite regular psychological support as he has a high degree of vulnerability to problems with stress, interpersonal difficulties and risk of substance abuse;
(p)she thought Mr Williams “is somebody who is capable of establishing a decent therapeutic alliance and benefiting from as required contact in the medium to long-term. I think that such psychological support can be very helpful to him”; and
(q)without treatment Mr Williams’ prognosis is somewhat guarded to fair but with treatment she thought this could be improved.
In February 2012 Dr Helen Pedgrift, General Practitioner, reported that Mr Williams:[21]
(a)had stress and anxiety which was temporary;
(b)was experiencing low mood, anxiety symptoms and fatigue; and
(c)required medication and adequate rest.
[21] Exhibit 1, T Documents, T7, page 104, Medical Certificate of Dr Pedgrift dated 10 February 2012.
In May 2012 Dr Pedgrift reported that Mr Williams:[22]
(a)had anxiety and depression which was temporary;
(b)was experiencing low mood, anxiety symptoms, fatigue and social withdrawal; and
(c)required medication and treatment with a psychologist.
[22] Exhibit 1, T Documents, T8, page 105, Medical Certificate of Dr Pedgrift dated 10 February 2012.
In August 2012 Dr Pedgrift reported that Mr Williams:[23]
(a)had anxiety and depression which was temporary;
(b)was experiencing low mood, anxiety symptoms, fatigue and social withdrawal; and
(c)required a slow return to work plan.
[23] Exhibit 1, T Documents, T9, page 106, Medical Certificate of Dr Pedgrift dated 3 August 2012.
In September 2014 Dr Kate Hawkins, General Practitioner, reported that Mr Williams:[24]
(a)had stress and anxiety which was temporary; and
(b)was being treated with counselling.
[24] Exhibit 1, T Documents, T11, page 109, Medical Certificate of Dr Hawkins dated 11 September 2014.
In November 2014 a medical practitioner reported that Mr Williams:[25]
(a)had anxiety and depression which was temporary; and
(b)was likely to be affected for 3 – 12 months.
[25] Exhibit 1, T Documents, T13, page 111, Medical Certificate dated 10 November 2014.
On 7 March 2016 Dr Conolly reported that Mr Williams:[26]
(a)had anxiety, depression, panic attacks and social phobia which was an exacerbation of an existing condition; and
(b)was being treated with Alprax.
[26] Exhibit 1, T Documents, T 15, page 116, Medical Certificate of Dr Connolly dated 7 March 2016.
In November 2016 Dr Stephenson reported that Mr Williams:[27]
(a)had anxiety, depression, and PTSD;
(b)was likely to be affected for 3 – 12 months;
(c)was experiencing anxiety, unpredictable mood changes, low mood and a recent adverse drug reaction; and
(d)was being treated with anti-anxiety medication and counselling.
[27] Exhibit 1, T Documents, T 28, page 174, Medical Certificate of Dr Stephenson dated 3 November 2016.
In December 2016, four months after the Qualification Period, Ms Louise Lergesner, Clinical Psychologist, reported that:[28]
[28] Exhibit 1, T Documents, T 32, pages 179 – 181, Report of Ms Lergesner dated 16 December 2016.
(a)Mr Williams came to see her requesting a psychological assessment to assist his DSP application and that she had seen him on three occasions;
(b)according to the Brief Psychiatric Rating Scale Mr Williams had frequent expressions of somatic concern, daily anxiety with accompanying autonomic symptoms, mild depression and frequent suicidal thoughts without intent or plan;
(c)according to the Montréal Cognitive Assessment (which is used to detect mild cognitive impairment) Mr Williams scored 22/30 whereas the normal range is a score of equal to or more than 26. Mr Williams displayed difficulty following instructions if too many were given at once, had difficulty with word naming and mental arithmetic, and had memory impairment when he was asked to recall a list of words he had learned after a short delay;
(d)according to the Rivermead Postconcussion Symptoms Questionnaire (which asks the patient to compare themselves now with before the accident), Mr Williams:
(i)identified headaches and dizziness as ongoing moderate problems;
(ii)identified sleep disturbance, fatigue, irritability, feeling depressed, feeling frustrated, poor concentration, taking longer to think, light sensitivity and restlessness as severe problems;
(iii)rated noise sensitivity and blurred vision as mild problems;
(iv)noted feeling socially inadequate and socially withdrawn as major issues that keep him isolated;
(v)is having significant ongoing impact from his previous head trauma;
(e)according to the PTSD Checklist – Civilian Version (which is a standardised self-report rating for PTSD), Mr Williams results endorsed a diagnosis of PTSD which is supported by the clinical assessment; and
(f)according to the Patient Health Questionnaire (an instrument for screening, diagnosing, monitoring and measuring the severity of depression), Mr Williams has major depression.
In Ms Lergesner’s opinion “Mr Williams…has a significant medical and psychiatric history which… Has had a significant impact on his ability to function in everyday life. His presentation meets criteria for posttraumatic stress disorder… And major depressive disorder… He has not been able to work for the last 10 years due to psychological and physical condition. Due to the chronicity of his symptomology it is unlikely that he will have any significant improvement in his condition in the near future”.[29]
[29] Exhibit 1, T Documents, T 32, pages 179 – 181, Report of Ms Lergesner dated 16 December 2016.
On 3 January 2017 Dr Conolly reported that Mr Williams:[30]
(a)had anxiety, depression, panic attacks and social phobia which was an exacerbation of an existing condition;
(b)had an uncertain prognosis; and
(c)was being treated with Alprax.
[30] Exhibit 1, T Documents, T 33, page 182, Medical Certificate of Dr Connolly dated 3 January 2017.
In July 2017 the Secretary referred Mr Williams to Dr Nicholas Jetnikoff, Psychiatrist, for a psychiatric assessment.[31]
[31] Letter from the respondent to Dr Jetnikoff dated 20 July 2016.
Post-concussion Syndrome
In 2014 Mr Michael Burkin reported that Mr Williams:[32]
(a)had post-concussion syndrome which was temporary;
(b)was experiencing poor concentration and memory and headaches; and
(c)required a CT scan of his head.
[32] Exhibit 1, T Documents, T10, page 107, Medical Certificate of Dr Burkin dated 15 July 2014.
On 14 June 2016 Dr Harris reported that Mr Williams had post-concussion syndrome.[33]
[33] Exhibit 1, T Documents, T 18, page 150, Medical report of Dr Harris dated 14 June 2016.
Knee
In October 2014 a Medical Officer at the Atherton Hospital reported that Mr Williams had knee pain and swelling and was incapacitated for work the next four days.[34]
[34] Exhibit 1, T Documents, T 12, page 110, Medical Certificate Atherton Hospital dated 27 October 2014.
Gout
In November 2014 a medical practitioner reported that Mr Williams had gout.[35]
[35] Exhibit 1, T Documents, T13, page 111, Medical Certificate dated 10 November 2014.
On 14 June 2016 Dr Harris reported that Mr Williams had gout.[36]
[36] Exhibit 1, T Documents, T 18, page 150, Medical report of Dr Harris dated 14 June 2016.
Neck

Dr Harris reported in June 2016 that Mr Williams has osteoarthritis in his neck.[37]
[37] Exhibit 1, T Documents, T 18, page 150, Letter from Dr Harris dated 14 June 2016.
Conclusion on Impairments
The Secretary accepts that Mr Williams suffers from impairments for the purposes of section 94(1)(a) at the Qualification Period.[38]
[38] Exhibit 2, Secretary's Statement of Facts and Contentions dated 29 January 2018, para 27.
In light of the above medical evidence the Tribunal concludes that at the Qualification Period, Mr Williams suffered from a Mental Health Impairment and that the requirement in section 94(1)(a) of the Act has been met.
In relation the hypertension condition Mr Williams told the JCA that it was well controlled and was not impacting on his ability to function.[39] Therefore, this condition cannot be considered as an Impairment.
[39] Exhibit 1, T Documents, T21, page 154, JCA report 26 July 2016.
In relation to the other conditions, there is little or no medical evidence to establish whether those conditions were fully treated, or stabilised during the Qualification Date. There is also insufficient corroborating evidence regarding how these conditions affected

Mr Williams’ functional capacity during the Qualification Period. As a result these conditions are unable to be considered for the purposes of this application.
DOES MR WILLIAMS’ MENTAL HEALTH 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.[40] They are function based[41] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[42]
[40] Determination, s 4(2) and 5(2)(a).
[41] Determination, s 5(2)(b) and (c).
[42] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[43]
(a)Mr Williams’ 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.
[43] Determination, see s 6(3).
Mr Williams’ condition can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[44]
(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.
[44] 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[45] the following must be considered:[46]
(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.
[45] For the purposes of ss 6(4)(a) and (b) of the Determination.
[46] Determination, see s 6(5).
A condition is fully stabilised[47] if:[48]
(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[49]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[47] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[48] Determination, see s 6(6).
[49] 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.
Before applying the Tables, the Tribunal must first consider Mr Williams’ medical history, in relation to the condition causing the Impairments.[50]
[50] Determination, see s 6(2).
Is Mr Williams’ Mental Health Impairment Permanent and Likely to Persist for At Least 2 Years?
The Secretary submits Mr Williams’ Mental Health Impairment was not fully diagnosed during the Qualification Period and relies primarily on the report of an Independent Clinical Assessment undertaken by Dr Jetnikoff, a Consultant Psychiatrist, at the Secretary’s request.
The Tribunal was somewhat puzzled by the need for this report. The Tribunal also notes that Dr Jetnikoff’s assessment and report was not undertaken and provided until after the decision of the SSCSD which found in favour of Mr Williams.
Mr Williams’ had already been examined and assessed by:
(a)his treating general practitioners between 2011 and 2016;
(b)a Consultant Psychiatrist, Dr Lockwood in 2011;
(c)a Clinical Psychologist, Ms Lergesner, in December 2016; and
(d)a trauma counsellor at Relationships Australia.
The Tribunal considers that based on those reports the diagnosis of Mr Williams’ mental health is clear. All of those treating practitioners describe depression, or major depression, anxiety and symptomology of PTSD. Further, appropriate psychiatric tests and examination techniques were used by the specialists to form their opinions. There was no criticism of those techniques. In addition, neither Dr Lockwood nor Ms Lergesner were called by the Secretary to be cross-examined and to have Dr Jetnikoff’s views put to them.
Dr Jetnikoff, whilst undoubtedly qualified:
(a)only met with Mr Williams once via video conference link;
(b)referred to Mr Williams as providing a vague employment history and yet did not explain the relevance of that impression and further did make specific mention, as was noted by Ms Lersegner, that Mr Williams had not worked since 2006;
(c)referred to Mr Williams as providing a vague criminal history and yet did not explain what he means by that nor does he explain the relevance of that impression;
(d)described Mr Williams as a “vague historian” and yet provided no reason for the relevance of this – Mr Williams’ credibility is not at the heart of this assessment. The medical diagnoses, and treatment of his conditions is what it relevant;
(e)spent time describing how Mr Williams was functioning as at July 2017 based on Mr Williams’ self-report and yet this is not particularly relevant to an assessment of Mr Williams’ condition during the Qualification Period. The Tribunal also notes here the caution outlined in Table 5 that:
oThe 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.
oThe 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.
(f)decided that the evidence did not support any significant psychiatric disorder and yet he made no reference to the testing performed by Ms Lersegner and administered no psychiatric tests himself; and yet
(g)acknowledged that Mr Williams has a persistent depressive disorder.
Given the above, the Tribunal prefers the evidence of Dr Lockwood and Ms Lersegner to that of Dr Jetnikoff.
The Secretary argues that Ms Lersegners’ report and assessment in December 2016 was 6 months after the date of Mr Williams’ claim. However, it was only 3 months after the Qualification Period and is reflective and consistent with the medical evidence prior to the Qualification Period. Therefore, the Tribunal finds that Mr Williams was fully diagnosed with depression, anxiety and PTSD symptomology. In relation to the post-concussion syndrome and cognitive impairment, the Tribunal finds that these conditions were not fully diagnosed because Mr Williams had not had a CT scan, as had been recommended, nor had he been reviewed by a neurologist.
The issue remaining for the Tribunal is whether the Mental Health Impairment has been fully treated and stabilised. The Secretary contends that his conditions have not been fully treated and stabilised because he had not engaged in appropriate trials of pharmacological treatment, had limited psychological counselling and has not had treatment specifically tailored to treating his PTSD.[51]
[51] Exhibit 2, Secretary's Statement of Facts and Contentions dated 29 January 2018, para53.
The treatment undertaken by Mr Williams by the Qualification Period included:
(a)17 telephone trauma counselling sessions with Relationships Australia between 16 June 2015 and 21 September 2016 and more after that date;[52]
(b)Pharmological treatment - Alprax – which is used to treat anxiety and panic attacks;
(c)3 sessions with Ms Lersegner by December 2016;
(d)Previous psychological counselling with a psychologist in 2008;[53]
[52]Exhibit 1, T Documents, T 25, page 163, Letter from Relationships Australia Queensland dated 27 September 2016. Mr Williams told the Tribunal he had had a total of 42 trauma counselling sessions by December 2017.
[53] Exhibit 1, T Documents, T 6, page 88, Report of Dr Lockwood dated 5 September 2011.
While there is no evidence of any anti-depressant medication treatment, other than a brief trial of Endep which had unpleasant side effects,[54] there is no evidence that this was recommended treatment by Dr Lockwood or Ms Lersegner. The Tribunal also notes that Dr Jetnikoff reported that it was not unreasonable for Mr Williams to not pursue medication for his depression.
[54] Exhibit 1, T Documents, T 6, page 88, Report of Dr Lockwood dated 5 September 2011.
For treatment to be “reasonable treatment” it must be treatment that will result in a significant improvement in Mr Williams’ ability to function. Ms Lersegner has reported that “due to the chronicity of his symptomology it is unlikely that he will have any significant improvement in his condition in the near future”.
As a result, the Tribunal finds that Mr Williams’ Mental Health Impairment is permanent for the purposes of the Act and an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Williams’ Impairment needs to be assessed 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 Determination sets out the rules governing the determination of 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).
Pursuant to the Determination:
(a)the following information must be taken into account in applying the Tables:[58]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)the following information must not be taken into account the following information in applying the Tables:[59]
(i)symptoms reported by Mr Williams in relation to his condition where there is no corroborating evidence; and
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Williams’ local community.
[58] Determination, see s 7.
[59] Determination, see s 8.
Which Tables are appropriate are determined by:[60]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[60] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[61]
[61] Determination, see s 10(3).
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.[62]
[62] 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.[63]
[63] 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.[64]
[64] Determination, see s 11(5).
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:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews 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.
For Mr Williams to obtain the DSP, his condition would have to attract an Impairment Rating of 20 points. This is because this is the only Impairment that is being assessed under one single Impairment Table and would need to be a “severe impairment” as defined in section 94(3B) of the Act.
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.
The Secretary relies on the opinion of Dr Jetnikoff that Mr Williams’ depression is only having a “trivial impact” on his ability to function and therefore attracts a zero-point rating. Dr Jetnikoff reported that:
I do not believe this condition has caused any significant impact in self-care and independent living, social and recreational activities, travel, interpersonal relationships, concentration and task completion, behaviour planning and decision-making and work and training capacity. Over the course of the last 10 years it is highly probable that intermittent significant drug and alcohol abuse or dependence however may well have caused barriers in all of these areas and could easily be consistent with his difficulty maintaining relationships and controlling a stable mood.
In using table 5 I would attribute no impairment points for any psychiatric disorder. I think it noteworthy that information regarding the impairment appears entirely generated by Mr Williams (if not reported by other parties from the same origin).
For reasons outlined earlier, the Tribunal prefers the opinion of Ms Lergesner. The Secretary acknowledges that the opinions of Ms Lergesner and Dr Jetnikoff are at odds in relation to the functional impact of Mr Williams’ psychiatric conditions.
In Ms Lergesner’s opinion “Mr Williams…has a significant medical and psychiatric history which… Has had a significant impact on his ability to function in everyday life. His presentation meets criteria for posttraumatic stress disorder… And major depressive disorder… He has not been able to work for the last 10 years due to psychological and physical condition. Due to the chronicity of his symptomology it is unlikely that he will have any significant improvement in his condition in the near future”.[65]
[65] Exhibit 1, T Documents, T 32, pages 179 – 181, Report of Ms Lergesner dated 16 December 2016.
Based on the opinion of Ms Lersegner, which is preferred by the Tribunal and not inconsistent with earlier medical reports, the Tribunal finds that Mr Williams’ Mental Health Impairment is having a severe impact on his ability to function and therefore assigns an Impairment Rating of 20 points under Table 5.
WAS MR WILLIAMS’ IMPAIRMENT OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. The Tribunal has found that Mr Williams’ Mental Health Impairment was permanent for the purposes of the Act and an Impairment Rating of 20 points was assigned. As a result, Mr Williams satisfied section 94(1)(b) of the Act during the Qualification Period. Therefore, it is necessary for me to consider whether Mr Williams 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.
DID MR WILLIAMS HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?

Mr Williams’s Mental Health Impairment has attracted 20 points under one single Impairment Table (i.e. it is a “severe impairment” 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.
Note: For work see subsection (5).
The term 'work' is defined in subsection 94(5) of the Act, as work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
The opinion of Ms Lersegner confirms that Mr Williams has a continuing inability to work.
In the circumstances the Tribunal finds that Mr Williams has a continuing inability to work and satisfies section 94(1)(c) of the Act.
DECISION
Mr Williams’ claim succeeds because he did qualify for DSP during the Qualification Period under section 94.
The decision under review is affirmed.

I certify that the preceding 85 (eighty -five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 11 April 2018

Date of hearing: 8 March 2018

Applicant: By Phone

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

[2018] AATA 858

11 April 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Date of hearing:	8 March 2018
Applicant:	By Phone
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services