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

BVSC and Secretary, Department of Social Services (Social services second review) [2019] AATA 235 (28 February 2019)
Division:GENERAL DIVISION
File Number: 2018/1090
Re:BVSC
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:28 February 2019
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that
the Applicant satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim.
........[sgd]...........................................
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – mental health condition, lumber spine condition, cervical spine condition, bilateral shoulder condition and left elbow pain – whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Victims of Crime Assistance Act 1976
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke, Member
28 February 2019
INTRODUCTION

BVSC (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).
On 12 January 2017 and again on 27 May 2017 Centrelink found that BVSC was not entitled to the DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 29 October 2018. BVSC was self‑represented and
Ms Marie-Elaina Bakas of Sparke Helmore appeared for the Respondent.
THE ISSUES IN CONTENTION
The issues in contention are whether BVSC:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
BVSC is 54 years of age, divorced and has children from his marriage. He is not currently in contact with his children. Whilst BVSC is currently living alone, he is in a long distance relationship with a woman living overseas, whom he reconnected with after many years.
BVSC reported that he grew up in Tasmania, completed Year 10 and has worked in numerous jobs in farming, harvesting, engineering surveying, warehouse production and forklift operating. He worked for a manufacturing company for 14 years prior to ceasing work in 2014 as a result of workplace injuries. BVSC lodged a WorkCover claim against his employer in respect of these injuries and this matter has not resolved. BVSC advised Centrelink that:
The actions of my former employer and their WorkCover agent, QBE led me to becoming of such diminished responsibility that I sent emails to the Insurer case manager who passed said emails onto my former employer. My former employer deemed them to be a threat. This led to a termination of employment, criminal charges being applied and my WorkCover payments being terminated. The FairWork Commissioner found that I was fairly dismissed. The police dropped the charges and struck them out. The WorkCover claims are proceeding to court.
BVSC is a survivor of child sexual abuse, having been abused by an individual who befriended the family. The abuse occurred over a period of 14 months when he was
11 and 12 years of age. The offender was charged with carnal knowledge to which he pled guilty. BVSC successfully pursued an application for compensation under the Victims of Crime Assistance Act 1976 in Tasmania earlier this year in respect of the physical and psychological injuries which resulted from the criminal conduct of the offender.
On 24 November 2016 BVSC made an application for DSP, citing his medical conditions as: Post traumatic stress disorder, family relationship breakdown, injuries to both shoulders, spinal injuries- neck and lower back, left elbow pain, suicide ideation, depression and anxiety.
On 11 January 2017 Centrelink had a job capacity assessment (JCA) conducted on BVSC. The JCA report awarded 15 points across two tables, having found the following:
·Spinal disorder was considered to be fully diagnosed, treated, and stabilised with a moderate functional impact on activities. 10 points were awarded under Table 4 – Spinal Function (Table 4) of the Impairment Tables.
·Neck disorder was considered to be fully diagnosed, treated, and stabilised and the impact of this condition was already considered as part of his assessed under Table 4 and no additional points were awarded.
·Shoulder and upper arm disorder was considered to be fully diagnosed, treated, and stabilised with a moderate functional impact on activities. 5 points were awarded under Table 2 – Upper Limb Function (Table 2) of the Impairment Tables.
·Major depressive disorder and general anxiety disorder was considered to be fully diagnosed, treated and stabilised but the condition was having no functional impact on his activities. Nil points were awarded under Table 5 - Mental Health Function (Table 5) of the Impairment Tables.
·BVSC was assessed as having a reduced baseline work capacity of 15 to 22 hours per week due to permanent conditions of multilevel lumbar degeneration C5/6, C6/7 disc osteophyte complex, major depressive disorder and general anxiety disorder, bilateral shoulder and left elbow pain. This was not expected to significantly increase with intervention due to the chronic nature of BVSC’s medical condition; however, intervention may assist BVSC in obtaining and maintaining suitable employment.
On 22 May 2017 Centrelink conducted an additional JCA as BVSC had provided additional medical evidence. The JCA report awarded 25 points across three tables having found the following:
·Spinal disorder was considered to be fully diagnosed, treated, and stabilised with a moderate functional impact on activities. 10 points were awarded under Table 4 of the Impairment Tables.
·Neck disorder was considered to be fully diagnosed, treated, and stabilised and the impact of this condition was already considered as part of his assessed under Table 4 and no additional points were awarded.
·Shoulder and upper arm disorder was considered to be fully diagnosed, treated, and stabilised with a moderate functional impact on activities. 5 points were awarded under Table 2 of the Impairment Tables.
·Major depressive disorder and general anxiety disorder was considered to be fully diagnosed, treated and stabilised with a moderate functional impact on activities. 10 points were awarded under Table 5 of the Impairment Tables.
·BVSC was assessed as having a reduced baseline work capacity of 8 to 14 hours per week, due to permanent conditions of multilevel lumbar degeneration C5/6, C6/7 disc osteophyte complex, major depressive disorder and general anxiety disorder, bilateral shoulder and left elbow pain. This was not expected to significantly increase with intervention due to the chronic nature of BVSC’s medical condition; however, intervention may assist BVSC in obtaining and maintaining suitable employment.
·Active participation in program of support criteria had not been met.
On 27 October 2017, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink decision that BVSC’s total impairment rating was 25 points; comprising 10 points for spinal disorder, 10 points for depressive disorder and 5 points for bilateral shoulder and elbow disorder. The ARO also found that BVSC had a continuing ability to work and had not met the program of support requirements as he had not actively participated in a program of support for a period of 18 months in the 36 months prior to lodging his claim for DSP.
On 21 February 2018 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO to reject BVSC’s DSP claim. AAT1 awarded an impairment rating of 20 points based on 10 points for depressive disorder and 10 points for spinal disorder. Nil points were awarded for the upper limb condition as the available documentation was inadequate and other conditions were not contributing significantly to functional incapacity for work for the AAT1 to be satisfied that the descriptor for five points had been fully attained. The AAT1 found that, as BVSC had not participated in a program of support, he had not demonstrated that he does not have a continuing inability to work and consequently did not satisfy the requirements of the Act to be eligible for a DSP. The AAT1 noted:
At the hearing, [redacted] restated his contention that “there may be a risk to myself and others if I will return to a place of employment.” [Redacted] then advised that he seeks to have a self-directed approach to recovery. He stated that he has continued to further his education, and that he would like to continue his studies in work health safety management. He has completed one unit of study, and is required to undertake a further three units to complete the course. He seeks financial support to enable him to do this. While the Tribunal accepts that [redacted] has expressed an extreme level of apprehension in regard to returning to further employment, there is no supporting medical evidence for the Tribunal to reach a conclusion as to whether or not, with appropriate support and further psychiatric treatment, [redacted] may be assisted to the point where is able to participate in employment within two years.
On 6 March 2018, BVSC sought a review of the AAT1 decision by this division of the Tribunal, stating in his application: I do not agree with decision made. I believe that the information provided shows that it is manifestly and patently obvious to a reasonable person that a Disability Support Pension should be granted to me.
In accordance with Schedule 2, section 4(1) of the Social Security (Administration) Act 1999, BVSC’s qualification for DSP is to be determined from the date of claim to a date 13 weeks thereafter, that being 23 February 2017.
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a).
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of section 6(7) of the Impairment Tables, “reasonable treatment” is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)       carries a low risk to the person.
The determinative issue in this review is whether, at the time of the claim, BVSC suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment, not to assess conditions (see Part 2, section 5(2)).
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and “supplementary T documents”. Additional medical reports and a copy of the Reason for Decisions from the Office of the Commissioner for Victims of Crime (Victims of Crime Decision) were provided by BVSC.
DOES BVSC HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP in the first instance, a person suffers from an impairment.
The parties accept that BVSC is suffering from a mental health condition, lumber spine condition, cervical spine condition, bilateral shoulder condition and left elbow pain. Accordingly, the Tribunal finds that BVSC meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES BVSC HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Mental Health Condition
Ms Sharene Borsi, psychologist, in a report of 16 November 2014 states that BVSC: presented with symptoms of: depressed affect, anhedonia, hyperarousal, reduced self-esteem…episodes of uncontrolled crying, intrusive thoughts and images, social withdrawal.
Doctor Dulip Dharmage, consultant psychiatrist, in a report of 23 December 2014 opines that symptoms are consistent with diagnosis of Major Depressive Disorder and Generalised Anxiety Disorder which are in partial remission. In respect of treatment, he noted that the Applicant sees a psychologist fortnightly at present. He was prescribed Aropax in August 2014 but stopped after two weeks due to adverse effects…[redacted] was not in favour receiving treatment with antidepressants. [Redacted] is currently seeing a psychologist once a fortnight. He is quite happy with psychological therapy.
Ms Anita Tan, registered psychologist, in a report of 28 January 2016 to BVSC’s lawyers confirming attendance at psychological counselling, states:
My assessment and formulation at treatment commencement was that in the context of experiencing a number of significant historical life events (in particular a period of childhood sexual abuse), [redacted] has developed and maintained a number of negative schemas that have informed his view of the world (as an unsafe place), and contributed to his ongoing recurrent state of depression and anxiety. It is likely that this has shaped a complex relational dynamic within his marital relationship, which has subsequently terminated. Since then, he has faced challenges on the domestic front (i.e. of ongoing legal negotiations relating to separation and child custody issues), and on the employment front (i.e. of employment cessation relating to workplace injury and stress).
It is noted that [redacted] accounts of his workplace experience in his most recent employment (currently ceased) appears both lucid and genuine. [Redacted] accounts highlight his impressions of inequitable treatment and physically onerous work conditions that culminated in a claim for workplace injury, stress and unfair dismissal. It is likely that [redacted] exposure to childhood sexual abuse shaped significant vulnerabilities in emotional regulation and/or self-soothing, which can manifest in occasional impulsive behaviours (an example of which relates to an incident for which he has received a charge). These historical events also likely exacerbated his response to acute stressors he experienced during the final stages of his employment (with his most recent employer) which has since terminated due to these stressors.
…
At treatment commencement therefore, [redacted] fulfilled ICD-10 criteria for acute stress reaction moderate (F43.01). In view of [redacted] accounts of the events that occurred in his workplace and ongoing injury claims (some of which were recounted in sessions), a differential diagnosis would be post-traumatic stress disorder (F43.1). Some of the behavioural characteristics [redacted] has exhibited during the course of treatment that would fall in this region include avoidance/numbing features (e.g. constriction of affect, low self-appraisal and apprehension of the future), and hyperarousal features (e.g. sleep difficulties, general irritability, concentration difficulties, and exaggerated startled responses). Accordingly, a number of these features have formed core treatment targets.
[Redacted] has attended these sessions willingly and has consistently presented as a motivated and co-operative client who is deeply vested in enhancing his holistic well-being.
Doctor Robert Kruk, consultant psychiatrist, in a report of 15 February 2018 states:
[Redacted] has been off work for three years because of increasing health problems. He had worked for [redacted] for 14 years, was often given unrealistic and unsafe workload and began to experience pain in the neck, back and shoulders, according to him as a result of having substandard solid rubber tyres fitted on his forklift a stead of the previous used cushion tyres.
In the end he also got upset because when he lodged a WorkCover claim the employer and the insurer shared his emails in which he expressed his anger towards the employer. He was subsequently accused of making threats to kill, was interviewed by the police and was offered a Diversion Programme, which he completed. He was dismissed from work in February 2015 and his WorkCover payments stopped in March 2015.
He later made submissions about unfair dismissal to the Fair Work Commissioner. Amidst his financial difficulties [redacted] applied for DSP but it was declined.
Since early 2015 he has experienced depression, irritability, poor sleep and suicidal thoughts.
He contemplated hanging himself off a balcony or riding his motorbike into a truck but was never hospitalised for psychiatric problems. For about 10 days [redacted] tried paroxetine but felt somewhat confused on it. He had extensive treatment by SECASA and a private psychologist.
…
[Redacted] presented as an articulate, assertive man with moderately depressed affect. He had no suicidal thoughts. He conveyed a sense of hopelessness and helplessness. He said that he struggled with the activities of daily living and could hardly look after himself.
[Redacted] has depression on the background of work-related problems and chronic pain.
His condition is fully diagnosed, treated and stabilised. He is unlikely to return to work within the next two years and would benefit from DSP.

Doctor Malcolm McCowan, general practitioner (GP) has been BVSC’s treating GP for many years. In a report of 11 July 2018, in responses to the Respondent’s request for supporting medical evidence, Doctor McCowan states:
He has a number of medical conditions which impact significantly on his ability to perform his normal duties. The most significant of these relate to incidents in his childhood and have left him with a psychological condition described variously as Post Traumatic Stress Disorder, a Major Depressive disorder and General Anxiety Disorder. This ongoing psychological trauma continues to significantly impact upon his other physical conditions.
…
[Redacted] has seen a number of counsellors and psychiatrists in relation to his ongoing psychological distress.
At the hearing, Table 5 was explored in respect of the functional impact of BVSC’s mental health condition, with a focus on whether or not he has a moderate impairment.
Table 5 – Mental Health Function - 10 points
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.
BVSC advised the Tribunal that:
·he had a great difficulty separating his mental health issues from his physical issues. The difficulty he found with the JCA assessment was that they were not trauma informed.
·he was capable of looking after himself but it was self-paced.
·he does not go out much but catches up with a group of other survivors of sexual abuse. He stated that sharing his journey had had a positive impact on their lives and his own. He stated he had recently been to Canada, the UK and France to spend time with his partner and without this connection he would be on a cliff face.
·his ex-wife would certainly say that he was not capable of interpersonal relationships. He stated that his current relationship was the only thing that gave him a reason to continue, that she was a significant stabilising factor for him and his counsellor had advised it would be beneficial for him to maintain the connection with this person.
·he finds concentration and task completion very difficult and found that completing courses online did not work for him, that he overextended himself and described himself as an OCD person.
·he did not believe he had any ability for work or training given his recent reaction to WorkCover trying to force him back to work and to Centrelink trying to force him to undertake a program of support. He was adamant that he posed a risk to himself and others if he was forced into such a situation because he had a basic, primeval response to such situations and he needed to consider not only himself but others. This all stemmed from his childhood sexual abuse.
·he was very sensitive to medication, that he had experienced severe impacts in the past and asked his doctor not to put him on anything that would affect his cognitive function. His doctor had discussed various medication options but he was not agreeable as he did not want to risk his functional capacity, particularly with so many legal issues on the go.
·he firmly believed this condition should be awarded 20 points or more given that he is a risk of harm to himself and others. He asserted that a reasonable person who was trauma informed would understand the impact that his physical injuries and his mental health condition combined have on his functional capability.
The Respondent submits in their statement of issues, facts and contentions:
The Secretary does not accept, however, that the applicant’s mental health condition was fully treated and stabilised during the qualification period … Despite the applicant’s ongoing symptoms including suicidal thoughts, there is no evidence that he trialled any alternative medication – especially given the additional stressors in early 2015 with his loss of employment and legal action. Accordingly, the Secretary contends that the Applicant has not undertaken all reasonable treatment for his mental health condition. The Secretary notes that there are a variety of antidepressant medications available and it is not uncommon for a person to trial different types of medication and/or different dosages for psychological/psychiatric conditions. While the applicant appeared to be reluctant to trial medication, the Secretary submits that medication is a regular form of treatment for psychological conditions, which is generally at a low cost and can result in improvement of the person’s condition…The Secretary contends that there has been insufficient explanation as to why the Applicant has not trialled other medications such that the Tribunal can be satisfied that he has undertaken all reasonable treatment in accordance with section 6(7) of the rules and cannot be considered fully treated and stabilised during the qualification period.
The Respondent then contended that, even if the Tribunal were to find BVSC’s mental health condition was fully diagnosed, treated and stabilised, its functional impact was mild and should only be assigned a rating of five points in accordance with the rules for applying the Impairment Tables at 11(1)(c).
The respondent submitted that BVSC has:
·no difficulties with self-care and independent living.
·mild difficulties with social/recreational activities and travel. Arguing that the evidence does not support a higher rating given he has travelled overseas twice in the qualifying period to live with his partner and his partner has travelled to Australia for a period to live with him.
·only mild difficulties with interpersonal relationships, as he does have a partner and friends he sees regularly on a Friday morning.
·mild difficulties at most with concentration and task completion as he has undertaken and completed numerous courses without difficulty during the qualification period.
·moderate difficulties with behaviour planning and decision-making, which is supported by the difficulties he had with his former employer.
·a history of interpersonal conflicts with his previous employer which could support a finding that he had mild difficulties with work on the basis that he “has occasionally interpersonal conflicts at work”.
At the hearing, BVSC provided a decision from Commissioner Neasey in relation to his recent successful Victims of Crime claim. The Tribunal provided time for the Respondent to make any additional submissions in respect of this additional documentation and was surprised the Respondent did not take the opportunity to address the matters raised in this decision. The Tribunal found the decision of the Victims of Crime Commission to be of value in assessing the impact that BVSC’s mental health condition was having on his functional ability.
Commissioner Neasey, in BVSC’s Victims of Crime Decision of 5 September 2018 found that:
[Redacted] feels that the harm the abuse caused was insidious and pervasive and ruined every aspect of his life, causing a loss of sense of a self-identity before it even developed. He believes the abuse has led to his suffering from complex post traumatic stress disorder and developmental trauma and other psychological issues, including suicide ideation and depression.
In his application [redacted] sets out a table of the very significant problems and issues that have occurred in his life, all in response to the question: “please tell us how the injury has impacted you”. I observe that many of the issues referred to might occur with anyone, such as lost employment/business opportunities, weight gain, multiple relationships, economic loss/hardship, divorce, diabetes, loss of relationship with children. Others are more usually identified with survivors of sexual abuse, including depression, deterioration of relationship with parents, emotional and behavioural problems, stress and anxiety, developmental delay and post-traumatic stress disorder. The reports I have support some of these claims but not necessarily all of them.
[Redacted] claims that his education suffered significantly, having low self-confidence and an inability to focus and concentrate, to the point of being an “evasive sub-par version of myself”.
…
[Redacted] says he was never told of the offender’s conviction and imprisonment and lived in fear of his threat to kill him for years, to the point of turning down employment in Tasmania and moving to Victoria, drifting in and out of relationships and jobs. I am aware from hearing of the EOT application that effectively [redacted] locked out his memory of the abuse for a very long time, in fact until about 2014 when unrelated events triggered his memory of it. He refers to this locking out as the “survival response of my brain to the trauma…” The later events which unlocked his memory were, as explained at the EOT hearing, his suffering of some form of workplace abuse as an adult in respect of which he sought legal advice, in the course of doing so began to recall what had happened to him in the mid 1970s.
…
I was told by [redacted] he is not taking antidepressants, having had a bad experience with them in 2014. He does take other medication in relation to unrelated issues (e.g. diabetes).
…
After some consideration and despite what others said about other unrelated (in a direct sense) stressors contributing to [redacted] current psychological issues, in all the circumstances I think that the sexual abuse of him as a child was so horrific and clearly had such extended psychological consequences, that [redacted] is deserving of the maximum amount of compensation that the Act allows (further medical costs aside) namely $50,000.00, and I will award that sum in respect of pain and suffering.
The Tribunal, on balance, finds that BVSC’s mental health condition, described as major depressive disorder and post-traumatic stress disorder, had been fully diagnosed, treated, and stabilised and was having a moderate functional impact on his activities in the qualification period. The Tribunal found it difficult to distinguish whether BVSC’s inability to perform activities such as self-care, independent living, and concentration were caused by the pain from his spinal condition, or whether it was a result of his mental health condition. This issue is further complicated by his experience as a survivor of child sexual abuse.
The Tribunal concurs with the view of the JCA of 23 May 2017 which found that medical evidence corroborated BVSC as having moderate difficulty relating to concentration, difficulty saying focused for the duration of a one hour counselling session, intrusive negative thoughts, hyperarousal, hypervigilance, constantly being on alert as well as feelings of helplessness. They found that although BVSC has not had extensive pharmacological treatment, given the moderate nature of his symptoms, a common treatment plan appears to be appropriate. Additionally, the Tribunal concurs with the findings of the AAT1 where the Member concluded:
On balance, the Tribunal has accepted the Centrelink conclusions that, based on an assessment of the condition as being moderate in nature, the condition should be accepted as having been fully diagnosed, fully treated and fully stabilised. There is appropriate substantiation for an assignment of 10 point impairment rating. The evidence does not support a higher impairment rating.
Based on the medical evidence, the Victims of Crime Decision supplied to the Tribunal and the additional evidence provided by BVSC at the hearing, the Tribunal awards 10 points under Table 5 of the Impairment Tables in respect of this condition. The Tribunal finds that BVSC’s mental health condition is having a moderate impact on his functionality. The Tribunal finds that BVSC was able to maintain limited interpersonal relationships which were vital to his health and well-being.
Lumber Spine/Cervical Spine Condition
Doctor Michael Wong, neurosurgeon and spinal surgeon, in a report dated 11 May 2015 in respect of BVSC’s WorkCover claim, states:
I am writing to request approval for a C5/6 and C6/7 anterior cervical discectomy and fusion for [redacted].
…
I have reviewed this patient’s MRI scan of his cervical spine done in December 2014. This demonstrated C5/6, C6/7 disc osteophyte complex with mild to moderate canal stenosis and bilateral foraminal stenoses. This patient also has a left-sided C5/6 transforaminal injection in February 2015 which had given him partial relief of his left arm pain for about 4-5 days. Given the scan findings and also is transient response to the epidural injection, I have recommended [redacted] to undergo a C5/6, C6/7 anterior cervical discectomy and fusion. I have explained the risk and benefits of the surgery to the patient and he is keen to proceed.
Doctor Michael Johnson, orthopaedic surgeon, in a medical report dated 25 June 2015 states:
On examination he was a very pleasant man with a body mass index of 32. He localised his pain to the base of the spine where he displayed superficial tenderness on light palpitation. The range of thoraco-lumber movement was 70% of normal. Straight leg raising was full and there was no neurological abnormalities on the lower limbs. There was a full range of non-irritable hip movement.
I reviewed the x-rays and CT scan of the lumbar spine. These demonstrated

multi-level lumbar degeneration without intersegmental instability. The changes were most severe at L4-5 where there was narrowing of both the L5 lateral recesses. I also noted there have been spontaneous ankyloses of the sacro-iliac joint.
…
At the time his primary complaint was of central back pain and he did not have any real radicular symptoms.
I therefore thought there was no place for surgical intervention and his problem should be managed conservatively.
Mr Scott Williams, sports physiotherapist, in a report dated 27 August 2015 in respect of BVSC’s WorkCover claim, states:
In light of my consultations with [redacted] and the results of the radiological investigations that I have mentioned above, I believe [redacted] symptoms are due to:
·Left lateral epicondelagia
·Left shoulder impingement syndrome and sub acromial bursitis, secondary to a partial supraspinatus tendon tear
·Right shoulder impingement syndrome and sub acromial bursitis, secondary to rotator cuff insufficiency
·C5/6 disc derangement
·L4/5 disc derangement
[Redacted] advised that his tolerance to a. sitting in a lounge or office chair was 30 minutes at any one time, b. standing 20 minutes, c. walking 30 minutes, d. lifting from ground to waste height =3 kg, e. lifting from waist height to waist height =3 kg. I feel his current restriction should reflect his tolerance and I would suggest he be exposed to work that abides by these restrictions for no more than three hours per day three days per week to begin with.
Doctor McCowan, in a report of 11 July 2018 opines:
In 2014 [redacted] suffered from pain in his back which he related to a change of tyre type from a cushion tyre to a hard tyre on his forklift at work. [Redacted] has had ongoing back pain since then.
[Redacted] approached his work about his problems but felt that he was not treated seriously. This associated with his pre-existing psychological problem made [redacted] feel very powerless, and significantly increased his stress levels which in turn significantly impacted on his physical symptoms in turn.
…
He has had repeated anti-inflammatory medication, analgesia and physiotherapy for his shoulders, neck and back.
The Tribunal explored the functional impact of BVSC’s impairment under Table 4 of the Impairment Tables because BVSC’s accepted condition primarily impacts on his spine. In particular, the Tribunal explored his capacity in respect of a moderate functional impact. Table 4 states:
Table 4 – Spinal Function – 10 points
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
a.the person is unable to sustain overhead activities (e.g. accessing items over head height); or
b.the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
c.the person is unable to bend forward to pick up a light object placed at knee height; or
d.the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
BVSC advised the Tribunal that:
·he was advised not to proceed with surgery until he experienced referred pain down his arms and that he was better off delaying surgery until that time.
·he undertook the grocery shopping a couple of times a week and relied upon the trolley to get to and from the car with the groceries.
·he travelled alone on his recent overseas trip, taking a small bag and if required to put a bag on the overhead locker requested a crewmember to lift for him.
·he does drive, but finds it difficult to drive long distances and that he had limited capacity when turning his head and relied heavily on his mirrors when driving.
·he restricts his physical activities because of the associated pain. He was able to walk for around 20 to 30 minutes.
The Respondent submitted that BVSC’s lumbar spine condition results in an impairment rating of five points under Table 4, as he had some difficulty with turning his head to look in all directions, but that a higher rating was not supported by the evidence.
The Respondent submitted that BVSC’s cervical spine condition was not fully treated and stabilised during the qualifying period as he had been recommended to have surgery during this time.
On balance, the Tribunal finds that BVSC’s spinal’s condition had been fully diagnosed, treated and stabilised and was having a moderate impact on his functionality. This concurs with the view of the JCA’s of 12 January 2017 and 23 May 2017 which found that medical evidence corroborated a reduction in normal movement and BVSC reporting he was currently able to sit for 20 minutes and walk for 15 to 20 minutes. Additionally, the Tribunal concurs with the findings of the AAT1, where the Member concluded:
The information gaps make it very difficult for the Tribunal to fully understand the progress of [redacted] pain from the time the last physiotherapy treatment in March 2016 to the present time. However, the Tribunal notes the chronicity of symptoms, the relationship with physical activity, in that increases in physical activity appear the pain, and that any improvement in symptoms that may have occurred may be related to an overall reduction in physical activities as [redacted] has not been working during this period. On balance, the Tribunal finds the conditions of spinal and upper limb pain are conditions which have been fully diagnosed. Extensive treatment has been given over a number of years, and the Tribunal does not consider there is firm intention of undertaking any further reasonable treatment which would be likely to result in significant functional improvement. The Tribunal has accepted the condition as being permanent.
Centrelink has assigned an impairment rating of 10 points under Table 4 - Spinal Function, noting [redacted] is unable to sustain overhead activities (e.g. accessing items over head height); and that he has difficulty moving his head to look in all directions, based on clinical examinations findings in August 2015. Noting the chronicity of symptoms, the documentation of continuing symptoms in March 2016, and that there is pain in both the upper and lower spine, the Tribunal has accepted this impairment rating.

Based upon the medical evidence supplied to the Tribunal and the additional evidence provided by BVSC at the hearing, the Tribunal has awarded 10 points under Table 4 of the Impairment Tables in respect of this condition. The Tribunal finds that BVSC’s spinal condition is having a moderate impact on his functionality, that he has adapted his lifestyle to manage the pain caused by his spinal condition and that his overseas travel had been tailored in respect of these restrictions.
Bilateral Shoulder Condition and Left Elbow Pain
Mr Scott Williams provided an additional report to WorkCover on 15 February 2017 in which he stated:
On this day [redacted] complained of bilateral cervical spine, upper trapezius and shoulder pain and left arm and forearm pain as well as bilateral lumbar spine pain. [Redacted] explained that his left shoulder was more sore than is right…He advised his right and left shoulder pain was constant and was aggravated by shoulder movement, lifting things and driving and somewhat eased with rest.
Doctor Graeme Watt, general practitioner, in a letter to WorkCover dated 2 February 2016 requests:
I am writing seeking approval for ongoing steroid injections to both subacromial bursae, L AC jnt and L elbow, as ongoing treatment for this man’s work-related injuries.
I also request approval for referral to a Pain Management Specialist.
In a report dated 11 July 2018, Doctor McCowan opines:
In 2013 [redacted] injured his left shoulder and required a cortisone injection for a subacromial bursitis. He also suffered a left tennis elbow, also requiring a cortisone injection. Although this improved, [redacted] has had ongoing problems with both his shoulder and neck since then.
As BVSC’s accepted condition impacts on his upper limbs, the Tribunal explored the functional impact of BVSC’s impairment under Table 2 of the Impairment Tables. In particular, the Tribunal explored his capacity in respect of moderate a functional impact. Table 2 states:
Table 2 – Upper Limb Function - 5 points
There is a mild functional impact on activities using hands or arms.
1)The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
a)    picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
b)    handling very small objects (e.g. coins);
c)    doing up buttons;
d)    reaching up or out to pick up objects.
BVSC advised the Tribunal that:
·he had undergone cortisone injections into the shoulders for the pain and that his specialist had been attempting to resolve whether at the pain was referred from the shoulder or neck.
·he had difficulty picking up heavy objects as it would cause pain and he could not perform any repetitive lifting.
·currently he was okay with typing but over time the pressure of constant use causes pain.
·he could use a pen.
·he relied upon his right arm for personal care.
·he could not place washing on the clothesline, instead utilising an indoor clotheshorse. He placed his T-shirts on hangers and then hung them on the clotheshorse.
The Respondent submitted that BVSC’s right shoulder and left elbow conditions were not fully treated and stabilised during the qualification period because the recommended surgery for his cervical spine had not taken place and the outcome of this surgery would determine if BVSC would require additional surgery to assist with the pain he was experiencing in his right shoulder.
The Respondent also contended that if the Tribunal accepted that the right shoulder and left elbow conditions were considered fully diagnosed, treated and stabilised during the qualification period, they would attract nil points under Table 2. The Respondent argued that the JCA should not to be accepted as they found that BVSC had difficulties with picking up heavy objects but nevertheless assigned a rating of five points under Table 2. The Respondent argued that there was insufficient medical evidence to support a finding that the Applicant satisfies most of the descriptors for a five point rating under Table 2.
The Tribunal finds that this condition could be considered fully diagnosed, treated, and stabilised. However, its functional impact was causing common functional impairments as assessed under Table 4. Therefore, it was inappropriate to assign separate impairment for this condition as it would result in the same impairment being assessed more than once. Therefore, nil points are awarded to this condition.
DOES BVSC HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP BVSC must not only satisfy the requirement that he has impairment with a rating of 20 points or more under the Impairment Tables, he must also demonstrate he has a continuing inability to work. BVSC would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to his claim for DSP and his impairment is of itself sufficient to prevent him from doing any work, independently of a program of support. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal strictly applies the program of support requirement, finding that no power exists to dispense with the operation of section 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not.
Ms Tan, in a report of 28 January 2016, noted:
Within the therapeutic arena, the primary treatment goal was for BVSC to gain an understanding of salient historical factors (including his experience of childhood sexual abuse) and current stressors (including his experience with workplace stressors, unfair dismissal and marital breakdown) that impact on his current worldview and behaviours. A secondary treatment goal was for BVSC to gain some understanding of key external and internal triggers for his mood and behavioural changes. To this end, intervention included relevant psycho-education relating to emotional regulation strategies, and recognition of external triggers linked to particular situations (including his engagement with protracted legal negotiations stemming from workplace injury claims).
Thus far, BVSC has evidenced progress in these areas, and reports greater self-awareness underpinned by constructive use of emotional regulation strategies. It is noted however that he maintains a very anxious disposition in relation to the prospect of being returned to similar conditions of employment (as that suffered during the final stages of employment with his most recent employer). It is likely that the stress symptoms BVSC exhibited through the cumulative experiences described impact on his daily functioning by consistently raising his stress levels to a point experienced as emotional pain. This in turn would curtail the achievement of goals that he may otherwise attain in academic and professional spheres (including that of uninterrupted employment).
A Centrelink file note of 15 June 2017 states:
whilst cust was in office QTI appt was conducted face to face as cust doesn’t like doing them over the phone, as per conversation I had with cust on 020617, cust again has been clearly advised that he now needs to attend his DES provider appointments as a program of support for his DSP claim. Cust is income, asset and medically qualified but needs to do 18 months POS.
Doctor McCowan, in a report of 11 July 2018 opines:
[Redacted] continues to [suffer] ongoing pain in his shoulder, neck and back. He continues to suffer from Major Depressive Disorder and Generalised Anxiety Disorder.
[Redacted] was unable to continue his job as a forklift driver due to the ongoing pain he suffered going over uneven ground and when crossing the road on his forklift. This pain was exacerbated by the change of the forklift’s wheels to a hard type causing less cushioning of jolts.
[Redacted] prior psychological issues meant that when he felt his employer was not listening to what he felt were reasonable requests, he became extremely distressed, with a feeling of complete loss of power. This could lead to behaviour which could be interpreted as aggressive. This made communication with his employer even more difficult.
I believe [redacted] did not have an ability to work during the period 24/11/2016 to 23/02/2017. He continued to have ongoing psychological and physiological issues which prevented him from working.
His psychological issues meant that he was in no fit state to participate in any return to work projects like a Program of Support, in any meaningful way that would have been beneficial.
Ms Elaine James, the previous site manager of The Bridge Employment, in a letter of the 9 May 2018, states:
[Redacted] was a client of the bridge employment engaged in the DES program in a voluntary capacity from 15 July 2015 and was Exited End July 2016.
When [redacted] started with The Bridge employment he was unwell suffering PTSD and had very high anxiety and was extremely emotional most of his appointments. [Redacted] was seeing 2 psychologists at the time and was trying to work through his issues which stemmed from childhood abuse and recent workplace bullying. [Redacted] continued to be quite mentally unstable during his first 6 months with The Bridge and he needed an exemption period during this time.
[Redacted] returned in January 2016 we assisted him to gain an appointment in (February 2016) for a Job Capacity Assessment with Centrelink as he was not able to go to the appointment alone I went with him. [Redacted] mental health issues stopped [redacted] from moving forward he was very unstable and unable to make any clear decisions on how to move forward with his life. [Redacted] was introduced the Bounce program which facilitated by a qualified Life Coach and works on motivating clients assisting them to set goals and assist them to understand the way that their minds work and how this impacts on their ability to move forward.
[Redacted] participated in the Bounce program which ran for a period of 8 weeks with a commitment of 4 days per week. [Redacted] did struggle to get to the program however he pushed through a managed to complete the program. [Redacted] remained with The Bridge for a further 2 months and then when overseas for an extended period of time and was exited from the program in July 2016.
The Respondent contends that the “Bounce Program” was not a program of support within the meaning of the Act as it was not specifically tailored to address BVSC’s impairment, individual needs or barriers to employment as required by the Act but rather the program was to assist BVSC to make decisions and should not be considered relevant by the Tribunal.
BVSC has not been found to have a severe impairment of 20 points under a single table, therefore he must have participated in a program of support for the requisite 18 months prior to his claim. The Tribunal finds that BVSC had completed a program of support by his attendance at the Bridge Bounce Program and therefore does satisfy section 94(3C) of the Act.
The Respondent notes that the JCA dated 23 May 2017 found that BVSC’s baseline work capacity was 8 to 14 hours per week based on the chronic nature of his conditions, especially his mental health. The Respondent contended that, as they considered BVSC’s mental health condition not fully diagnosed, treated and stabilised, this condition could not be considered in determining his capacity for work and the earlier JCA assessment should be preferred. The JCA report of 12 January 2017 found that BVSC had baseline capacity for work of 15 to 22 hours per week and the same within two years with intervention.
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred for the purpose of assessing continuing inability to work. I do not think an absolute preference should be expressed for either report, rather, the preference should be made on a case by case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the reporting, the writer’s relationship with the person who is the subject of the report and the reliability and depth of the analysis within the report.
The Tribunal concurs with the findings of BVSC’s general practitioner, Doctor McCowan, and psychologist, Ms Tan, who both find his very anxious disposition would not be amenable to returning to the workforce and concur with his own view that he would be both a risk to himself and others if he was forced to undertake a program of support.
CONCLUSION
I am satisfied that, at the date of application, BVSC was qualified to receive the DSP as his impairments attracted 20 impairment points under the Impairment Tables based on his spinal condition attracting 10 under Table 4 - Spinal Function and his PTSD attracting 10 points under Table 5 – mental health function. Additionally, he satisfies s 94(1)(c) of the Act in that he had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that
BVSC satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

.........................[sgd].........................
Associate
Dated: 28 February 2019

Date of hearing:
29 October 2018

Date of Supplementary material: 10 December 2018

Applicant: Self-Represented

Advocate for the Respondent: Ms Marie-Elaina Bakas

Solicitors for the Respondent: Sparke Helmore

[2019] AATA 235

28 February 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	29 October 2018
Date of Supplementary material:	10 December 2018
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Marie-Elaina Bakas
Solicitors for the Respondent:	Sparke Helmore