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

Byron and Secretary, Department of Social Services (Social services second review) [2017] AATA 1536 (21 September 2017)
Division:GENERAL DIVISION
File Number: 2017/2662
Re:Christopher Byron
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:21 September 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..................................[Sgd]......................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - 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 Support Pension) Determination 2014
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D K Grigg
21 September 2017
INTRODUCTION

On 4 May 2016 Mr Byron lodged a claim for Disability Support Pension (“DSP”) describing his medical conditions as follows:[1]
·adjustment disorder
·anxiety
·depression
·lower back problems
·upper back problems
·left ankle injury
·chronic pain
[1] Exhibit 1, T Documents, T 53, pages 180 – 212, Mr Byron’s Claim for DSP dated 4 May 2016.
Mr Byron claimed that:[2]
(a)his ankle condition has rendered him unable to walk unassisted and unable to wear enclosed shoes; and
(b)his medical conditions affected his ability to work because they affect his “mobility/capacity to lift/carry [and his ability to] remember and communicate”.
[2] Exhibit 1, T Documents, T 53, pages 208-209, Mr Byron’s Claim for DSP dated 4 May 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mr Byron’s claim for DSP on the basis that he did not have impairments with a total impairment rating of 20 points or more.[3]
[3] Exhibit 1, T Documents, T 57, pages 234 – 235, Rejection of claim for DSP dated 4 August 2016.
Claim History
Mr Byron sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that although Mr Byron’s medical conditions attracted an impairment rating of 20 points or more, he did not meet the program of support requirements.[4]
[4] Exhibit 1, T Documents, T 61, pages 241 – 247, Decision of ARO dated 18 November 2016.
Mr Byron lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Mr Byron’s claim and affirmed the ARO’s decision on 16 March 2017.[5]
[5] Exhibit 1, T Documents, T2, pages 5 – 10, SSCSD’s Decision and Reasons for Decision dated 16 March 2017.
Mr Byron has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1 – 4, Application for 2nd Review of Decision dated 2 May 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Byron must have a physical, intellectual or psychiatric impairment;
(b)Mr Byron’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[7]
(c)Mr Byron has a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Byron meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 4 May 2016), unless Mr Byron becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[8] Therefore, in order to qualify for DSP Mr Byron must have met the Section 94 Requirements between 4 May 2016 and 3 August 2016 (“Qualification Period”).
[8] 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 Byron’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[9]
DID MR BYRON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
Mr Byron’s medical conditions
[10] Determination, s 3.
Left Foot and Ankle Condition
Mr Byron injured his foot in March 2012 and sustained a fractured fifth metatarsal. Although his bones had united it left Mr Byron with an altered gait and ankle joint pain.[11]
[11] Exhibit 1, T Documents, T10, page 60, Report of Dr Reilly, Orthopaedic Surgeon, dated 31 January 2013.
In 2013 Dr Reilly, Orthopaedic Surgeon, reported that he no longer had any ankle pain but that an MRI had demonstrated an ongoing edema in his talar dome. Dr Reilly said that Mr Byron had been performing full duties since the beginning of February 2013 and that there was no surgery indicated for his condition at that point. At that stage Dr Reilly reported that the bony edema usually resolves within 6 – 12 months.[12]
[12] Exhibit 1, T Documents, T 12, pages 62 – 63, Report of Dr Reilly dated 14 March 2013.
In July 2013 Dr Reilly reported that the bone edema had not changed and that she was concerned that the lesion potentially may be unstable and causing Mr Byron the “pinching” that he described. Dr Reilly reported that his prognosis without arthroscopic re-examining of the fragment is guarded as he has not improved in 15 months and the injury is not stable and stationary.[13]
[13] Exhibit 1, T Documents, T 14, page 65, Report of Dr Reilly dated 9 July 2013.
In August 2013 Mr Byron had an ankle arthroscopy and microfracture to a flap on his lateral talar dome.[14] By November 2013 Mr Byron was still not coping with his ankle pain. Dr Reilly reports that microfracture can take 3 months before symptoms begin to improve.[15]
[14] Exhibit 1, T Documents, T 16, page 69, Report of Dr Reilly dated 29 August 2013.
[15] Exhibit 1, T Documents, T 17, page 70, Report of Dr Reilly dated 15 October 2013; T 19, page 72, Report of Dr
Reilly dated 29 October 2013; T 20, page 73, Report of Dr Reilly dated 27 November 2013.
In January 2014 Dr Reilly reported that an MRI scan showed a new medial lesion on which she performed a chondroplasty intra operatively hence the new bone edema. Dr Reilly reports she was unsure why this had not settled down and that there was nothing else surgical, as far as she was concerned, that should be done. She recommended that Mr Byron continue physiotherapy and hydrotherapy as that was helping.[16]
[16] Exhibit 1, T Documents, T 23, pages 80 – 81, Report of Dr Reilly dated 21 January 2014.
By March 2014 Mr Byron was still reporting significant pain and was taking Endone to alleviate his ankle pain and Tramal for his back pain. Mr Byron reported to Dr Reilly that he was experiencing sweating and stiffness, his foot was turning purple and he was having intermittent paraesthesia. Dr Reilly reported that she wondered whether he was developing some chronic regional pain syndrome and referred Mr Byron to a pain specialist for an assessment.[17]
[17] Exhibit 1, T Documents, T 24, page 82, Report of Dr Reilly dated 4 March 2014.
In June 2015 Dr Zaer reported that Mr Byron was still suffering from ankle pain and that he was unable to walk or stand for very long.[18]
[18] Exhibit 1, T Documents, T 54, page 218, DSP Medical Report of Dr Zaer dated 23 June 2015.
Eighteen months after the injury to his ankle Dr Reilly reported that the ongoing symptoms were “unusual and don’t quite fit”. Dr Reilly reported that she had nothing to add orthopaedically and believed that from an orthopaedic point of view Mr Byron was stable and stationary.[19]
[19] Exhibit 1, T Documents, T 30, page 98, Report of Dr Reilly dated 30 May 2014.
Mr Byron was then reviewed by Dr Greg Sterling, Orthopaedic Surgeon, in June 2014. Dr Sterling reported that his condition was consistent with a lateral ligament sprain. Dr Sterling also noted that Mr Byron had features of chronic regional pain syndrome but that there were potentially mechanical reasons for the ongoing pain in his ankle joint and so referred Mr Byron for an up-to-date MRI scan.[20]
[20] Exhibit 1, T Documents, T 33, pages 101 – 104, Report of Dr Sterling dated 17 June 2014.
On 6 August 2014 Dr Sterling performed a left ankle and TNJ arthroscopy and debridement microfracture.[21]
[21] Exhibit 1, T Documents, T 36, page 108, Operation Report of Dr Sterling dated 6 August 2014.
In November 2014 Dr Sterling reported that Mr Byron had been slow to progress following the surgery in August 2014 that he was having ongoing issues in relation to his ankle and his back which had flared secondary to his ankle injury. Dr Sterling indicated that in relation to his ankle he required ongoing physiotherapy and ongoing pain management input.[22]
[22] Exhibit 1, T Documents, T 42, page 121, Report of Dr Sterling dated 24 November 2014.
In November 2014 an MRI of Mr Byron’s left ankle showed “significant progression of known OCD (osteochondritis dissecans) in dome of talus laterally with complete loss of bone and cartilage.”[23]
[23] Exhibit 1, T Documents, T 44, page 123, MRI dated 26 November 2014.
Lower back condition
In June 2015 Dr Zaer reported that Mr Byron had chronic low back pain and multiple disc pathology.[24]
[24] Exhibit 1, T Documents, T 54, page 216, DSP medical report of Dr Zaer dated 23 June 2015.
A CT scan of Mr Byron’s lumbosacral spine in May 2014 indicated that there was:[25]
·mild relative disc space narrowing at the L5/S1 level
·mild broad-based central posterior disc protrusion
·minimal degenerative changes… in the L5/S1 facet joints.
[25] Exhibit 1, T Documents, T 32, page 100, CT scan dated 20 May 2014.
Dr Zaer reported to Centrelink in July 2015 that Mr Byron was still experiencing back pain which is complicated by his foot injury.[26]
[26] Exhibit 1, T Documents, T 48, pages 139 – 140, Additional medical evidence for DSP from Dr Zaer dated 10 July
2015.
Dr Sterling indicated that Mr Byron was seeking treatment from a spinal surgeon.[27]
[27] Exhibit 1, T Documents, T 42, page 121, Report of Dr Sterling dated 24 November 2014.
Chronic pain
In March 2014 Dr Reilly reported that she wondered whether he was developing some chronic regional pain syndrome, in relation to his left ankle, and referred Mr Byron to a pain specialist for an assessment.[28]
[28] Exhibit 1, T Documents, T 24, page 82, Report of Dr Reilly dated 4 March 2014.
Dr Zaer reported to Centrelink in July 2015 that Mr Byron had chronic pain, was taking high levels of pain medications and that he would benefit from a pain management program, however the cost was prohibitive. Dr Zaer confirmed that Mr Byron had not at that time been referred to a pain clinic as he believed there were lengthy waiting lists.[29]
[29] Exhibit 1, T Documents, T 48, pages 139 – 140, Additional medical evidence for DSP from Dr Zaer dated 10 July
2015.
Mental Health
Between January 2014 and April 2014 Mr Byron attended a total of 5 Work Cover funded sessions with a psychologist. Ms Foley, Psychologist, reported that:
·Mr Byron suffers from a major depressive episode that was directly related to his foot injury and his inability to return to his normal place of work and his concerns for his future;
·“Whilst cognitive behavioural treatment has been provided to Mr Byron, the effects at this stage appear to be diminished by his ongoing pain and concerns for his future”;
·“Mr Byron’s symptoms are expected to improve once he is able to accept his life has changed and that he may not be able to return to his previous place of work… Once Mr Byron’s pain is at a manageable level, it is expected that his temperament will improve and subsequently his relationship and overall outlook on his future will also improve.”
In May 2014 Dr Chung, Consultant Psychiatrist, reported that:[30]
(a)Mr Byron presented with symptoms of an adjustment disorder with anxiety and depressive symptoms;
(b)Mr Byron’s prognosis was guarded as it is highly related to his ankle injury and whether or not he will recover fully from it;
(c)Mr Byron will not improve much further with treatment for his adjustment disorder;
(d)apart from continuing to see a psychologist which he is finding helpful, there are no further treatment or rehabilitation suggestions.
[30] Exhibit 1, T Documents, T 29, pages 90 – 97, Report of Dr Chung dated 12 May 2014.
A Medical Assessment Tribunal in May 2015 determined that as a result of Mr Byron’s chronic pain in his left ankle disability, he had developed a Chronic Adjustment Disorder as well as an iatrogenic Substance Dependence Disorder of opiates.[31]
[31] Exhibit 1, T Documents, T 47, pages 133-138, Medical Assessment Tribunal Decision dated 4 May 2015.
Conclusion on Impairments
The Secretary accepts that Mr Byron suffers from impairments for the purposes of section 94(1)(a) during the Qualification Period.[32]
[32] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 17 August 2017, para 24.
In light of the above medical evidence I conclude that during the Qualification Period, Mr Byron suffered from a Lower Limb Impairment, Spinal Impairment, Mental Health Impairment and Substance Dependence Disorder for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
DO MR BYRON’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[33] They are function based[34] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[35]
[33] Determination, s 4(2) and 5(2)(a).
[34] Determination, s 5(2)(b) and (c).
[35] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[36]
(a)Mr Byron’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[36] Determination, see s 6(3).
Mr Byron’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[37]
(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.
[37] 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[38] the following must be considered:[39]
(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.
[38] For the purposes of ss 6(4)(a) and (b) of the Determination.
[39] Determination, see s 6(5).
A condition is fully stabilised[40] if:[41]
(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[42]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[40] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[41] Determination, see s 6(6).
[42] 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, I must first consider Mr Byron’s medical history, in relation to the condition causing the Impairments.[43]
[43] Determination, see s 6(2).
IS MR BYRON’S LOWER LIMB IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence establishes that Mr Byron has suffered from chronic pain in relation to his left ankle since 2012.
The issue for determination is whether or not Mr Byron’s Lower Limb Impairments were fully treated and fully stabilised during the Qualification Period.
In October 2015 Dr Zaer reported that Mr Byron’s Lower Limb Impairment was expected to impact on Mr Byron’s ability to function for more than 24 months and the effect of the condition on his ability to function was expected to deteriorate.[44]
[44] Exhibit 1, T Documents, T 50, pages 149 – 165, Report of Dr Zaer dated 10 October 2015.
Dr Dougherty, Mr Byron’s General Practitioner after Dr Zaer, reported in August 2016 that Mr Byron had been reviewed by surgeons (Dr Sterling and Dr Gatehouse), in relation to his back and ankle, and nothing further, other than pain management, could be done.[45] This was also confirmed by Dr Sterling.[46]
[45] Exhibit 1, T Documents, T59, page 239, Report of Dr Dougherty dated 22 August 2016.
[46] Exhibit 1, T Documents, T60, page 240, Report of Dr Sterling dated 29 August 2016.
I find that Mr Byron’s Lower Limb Impairment was fully diagnosed, treated and stabilised during the Qualification Period and an Impairment Rating can therefore be assigned. This is conceded by the Secretary.[47]
[47] Exhibit 2, Secretary's Statement of Facts and Contentions dated 17 August 2017, para 33.
Using The Impairment Tables
I have to assess the level of impact of Mr Byron’s Lower Limb Impairment against the descriptors[48] (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).[49]
[48]Determination, see ss 3 and 5(3).
[49] 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.[50]
[50] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[51]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[51] Determination, see s 7.
I must not take into account the following information in applying the Tables:[52]
(a)symptoms reported by Mr Byron in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Byron’s local community.
[52] Determination, see s 8.
Which Tables are appropriate are determined by:[53]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[53] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[54]
[54]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.[55]
[55]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.[56]
[56]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.[57]
[57]Determination, see s 11(5).
Evidence Identifying The Loss Of Function
In October 2015 Dr Zaer reported that Mr Byron:[58]
·is in pain and is unable to bear any weight or walk;
·experiences tingling;
·is sleepy due to medications and;
·cannot drive.
[58] Exhibit 1, T Documents, T 50, pages 149 – 165, Report of Dr Zaer dated 10 October 2015.
In April 2016 Dr Dougherty completed a Basic Rights Queensland Questionnaire and reported that Mr Byron’s Lower Limb Impairment affected Mr Byron’s ability to function as follows:[59]
·unable to walk unaided with stick but can mobilise with stick
·unable to stand for more than 5 minutes
·unable to bend forward and pick up a light object at knee height
·unable to sustain overhead activities
·unable to wear shoes secondary to pain
[59] Exhibit 1, T Documents, T 52, page 176, Basic Rights Queensland Questionnaire completed by Dr Dougherty
dated 28 April 2016.
The JCA reported that Mr Byron said he could not walk for more than 10 minutes and cannot drive a manual car.[60]
[60] Exhibit 1, T Documents, T 56, page 228, JCA Report dated 2 August 2016.
Relevant Impairment Table And Impairment Rating
Table 3 of the Determination, which deals with Lower Limb Function, is the relevant Table.
The Introduction to Table 3 provides that:
·    Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·    The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·    Self-report of symptoms alone is insufficient.
·    There must be corroborating evidence of the person’s impairment.
·    Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·    For the purposes of this Table lower limbs extend from the hips to the toes.
The Secretary submits that Mr Byron’s Lower Limb Impairment ought to be assigned a moderate 10 point rating.[61]
[61] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 17 August 2017, para 34.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities using the lower limbs.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities using lower limbs.
(1)At least one of the following applies:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2)The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3)This impairment rating level includes a person who can:
(a)move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
Dr Dougherty considered the Impairment Tables and reports that Mr Byron’s Lower Limb Impairment is having a moderate functional impact on his ability to function.[62] Mr Byron told the Tribunal he agreed with Dr Dougherty that his Lower Limb Impairment is having a moderate functional impact.
[62] Exhibit 1, T Documents, T 52, page 176, Basic Rights Queensland Questionnaire completed by Dr Dougherty
dated 28 April 2016.
I find that the evidence supports a finding of a moderate functional impact, not a severe functional impact, and therefore attracts an Impairment Rating of 10 points.
IS MR BYRON’S SPINAL IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
In October 2015 Dr Zaer reported that:[63]
(a)Mr Byron was unable to stand or walk for long and was in constant pain as a result of his spinal impairment; and
(b)Mr Byron’s spinal impairment was expected to impact on Mr Byron’s ability to function for more than 24 months and the effect of the condition on his ability to function was expected to deteriorate.
[63] Exhibit 1, T Documents, T 50, pages 149 – 165, Report of Dr Zaer dated 10 October 2015.
Dr Dougherty, reported in August 2016 that Mr Byron had been reviewed by a surgeon (Dr Gatehouse), in relation to his back, and nothing further, other than pain management, could be done.[64]
[64] Exhibit 1, T Documents, T 59, page 239, Report of Dr Dougherty dated 22 August 2016.
I find that Mr Byron’s Spinal Impairment was fully diagnosed, treated and stabilised during the Qualification Period and an impairment rating can therefore be assigned. This is conceded by the Secretary.[65]
[65] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 17 August 2017, para 37.
Evidence Identifying The Loss Of Function
In April 2016 Dr Dougherty completed a Basic Rights Queensland Questionnaire and reported that Mr Byron’s Spinal Impairment affected Mr Byron’s ability to function as follows:[66]
·unable to sustain overhead activities
·unable to walk without aid
·unable to bend forward and pick up an object at knee-height
[66] Exhibit 1, T Documents, T 52, page 179, Basic Rights Queensland Questionnaire completed by Dr Dougherty
dated 28 April 2016.
Relevant Impairment Table and Impairment Rating
Table 4 of the Determination, which deals with Spinal Function, is the relevant Table.
The Introduction to Table 4 provides that:
·    Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·    The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·    Self-report of symptoms alone is insufficient.
·    There must be corroborating evidence of the person’s impairment.
·    Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
o    a report from the person’s treating doctor;
o    a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
o    a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
Mr Byron submits that an Impairment Rating of 10 points is the appropriate rating.
The Secretary submits that an appropriate impairment rating to be assigned to Mr Byron’s Spinal Impairment is 5 points.[67]
[67] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 17 August 2017, para 38.
Dr Dougherty considered the Impairment Tables and reports that Mr Byron’s Spinal Impairment is having a moderate functional impact on his ability to function.[68]
[68] Exhibit 1, T Documents, T 52, page 176, Basic Rights Queensland Questionnaire completed by Dr Dougherty
dated 28 April 2016.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving spinal function.
The Descriptors for an Impairment Rating of 10 points are:
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).
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities involving spinal function.
The Descriptors for an Impairment Rating of 5 points are:
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a)activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c)turning their trunk or moving their head (e.g. to look to the sides or upwards).
The Secretary submits that an impairment rating of 10 points is not appropriate because:
(a)Mr Byron reported to the JCA in September 2015 and July 2016 that he could bend forward to reach his feet and could drive for 30 to 60 minutes;
(b)The Medical Assessment Tribunal reported in May 2015 that “on forward flexion [Mr Byron’s hands] reach to mid-tibial level.”[69]
[69] Exhibit 1, T Documents, T46, page 129, Medical Assessment Tribunal Decision (Orthopaedic Assessment) dated
4 May 2015.
However, the evidence of Dr Dougherty is that by August 2016 Mr Byron could not bend forward to pick up an object at knee height. Further, Mr Byron gave evidence that he told the JCA he could not bend down to reach for an object at knee height.
At the hearing Mrs Byron gave evidence that Mr Byron cannot sustain overhead activities and is unable to pick up a light object from knee height.
Given that Dr Dougherty’s report is closer in time to the Qualification Period than the Medical Assessment Tribunal (which was an assessment made one year prior to the Qualification Period), and because there is a dispute regarding what the JCA recorded, I find that an impairment rating of 10 points should be assigned to Mr Byron’s Spinal Impairment.
IS MR BYRON’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
Medical evidence confirms that Mr Byron developed a Mental Health Impairment, which is likely to persist, as a result of his permanent left ankle impairment.
Mr Byron was clearly diagnosed by a psychiatrist (as required by Table 5 of the Determination) with a major depression and adjustment disorder prior to the Qualification Period.
In October 2015 Dr Zaer reported that Mr Byron’s Mental Health Impairment was expected to impact on Mr Byron’s ability to function for more than 24 months and the effect of the condition on his ability to function was expected to deteriorate.[70]
[70] Exhibit 1, T Documents, T 50, pages 149 – 165, Report of Dr Zaer dated 10 October 2015.
In April 2016 Dr Scheepers, Psychiatrist, completed a Basic Rights Queensland Questionnaire and reported that:
(a)Mr Byron had had all reasonable treatment for his mental health condition and that there is not likely to be any significant functional improvement in the next 2 years;[71]
(b)he could not say with certainty that Mr Byron could never work again but that his current mindset is very negative and he makes no effort towards rehabilitation;
(c)his psychiatric issues stem from his ankle impairment and from a lack of acceptance that the situation may change but that predicting when it would was not possible.
[71] Exhibit 1, T Documents, T 51, page 167, Basic Rights Queensland Questionnaire prepared by Dr Scheepers
dated 22 April 2016.
I find that Mr Byron’s Mental Health Impairment is permanent and an Impairment Rating can be assigned. There is no evidence that further treatment would significantly improve Mr Byron’s ability to function within the next 2 years. The Secretary concedes that Mr Byron’s mental health condition was fully diagnosed, treated and stabilised during the Qualification Period.[72]
[72] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 17 August 2017, para 40.
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:
oTable 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).
oThe 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).
oSelf-report of symptoms alone is insufficient.
oThere must be corroborating evidence of the person’s impairment.
oExamples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
·         a report from the person’s treating doctor;
·         supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
·         interviews with the person and those providing care or support to the person.
oIn using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
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.
oFor 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.
To assign an Impairment Rating of 20 points the evidence would need to show that Mr Byron’s Mental Health Impairment is having 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.
To assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities involving mental health function.
(1)       The person has moderate difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)       social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)       concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)       behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)        work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Evidence Identifying the Loss of Function

In October 2015 Dr Zaer reported that due to his mental health impairment Mr Byron could not concentrate and could not work with others.[73]
[73] Exhibit 1, T Documents, T 50, pages 149 – 165, Report of Dr Zaer dated 10 October 2015.
In April 2016 Dr Scheepers, considered the descriptors in Table 5 and reported as follows:[74]
·in relation to self-care and independent living - Mr Byron’s mental health impairment was having a mild functional impact and that Mr Byron sometimes forgets to turn off the stove, often leaves the front door open and forgets to pick up his children from school;
·in relation to social/recreational activities and travel – Mr Byron’s mental health impairment is having a moderate functional impact and that Mr Byron would only go to the shops in the company of his wife and he hardly ever attends social events and stopped seeing friends;
·in relation to interpersonal relationships – Mr Byron’s mental health impairment is having a moderate functional impact and that Mr Byron avoids going out with friends, isolates himself and feels he would rather forget about the whole world, his acceptance of his long-term dysfunction is not complete and he has ongoing conflict with children when they get home from school;
·in relation to concentration and task completion – Mr Byron’s mental health impairment is having a moderate functional impact and that the pain prevents Mr Byron from remaining engaged with tasks and he generally does not attempt difficult tasks;
·In relation to behaviour, planning and decision-making – Mr Byron’s mental health impairment is having a moderate functional impact and that Mr Byron has conflicts with his children and has little participation in domestic activity due to his pain, he has unpredictable moods and says things that are not appropriate which causes conflict;
·in relation to work training capacity – Mr Byron’s health impairment is having a severe functional impact. Mr Byron has chronic pain and his loss of mobility and his capacity to remain focused and achieve sustained effort is low. Mr Byron’s work options are limited by not being able to wear closed shoes.
[74] Exhibit 1, T Documents, T 51, pages 168 – 172, Basic Rights Queensland Questionnaire prepared by Dr
Scheepers is dated 22 April 2016.
The Secretary submits that an appropriate impairment rating to be assigned to Mr Byron’s Mental Health Impairment is 10 points.[75]
[75] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 17 August 2017, para 41.
Based on the evidence of Dr Scheepers, I find that an Impairment Rating of 10 points is appropriate for Mr Byron’s Mental Health Impairment. This was not disputed by Mr Byron at the hearing.
IS MR BYRON’S SUBSTANCE DEPENDENCE DISORDER IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
There is no evidence to establish whether this condition is stable or even if it was still an issue for Mr Byron during the Qualification Period. Mr Byron told the Tribunal that his medication had been stable for approximately 2 years. There is also insufficient evidence regarding how this condition affects Mr Byron’s functional capacity during the Qualification Period. As a result I am unable to assign an Impairment Rating to this condition.
CHRONIC PAIN
There is no doubt on the medical evidence that Mr Byron is in chronic pain.
Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
I have already found that the impairments causing the chronic pain, the Lower Limb Impairments and Spinal Impairment, have been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating to those impairments. I do not consider that the evidence justifies any increase in that Impairment Rating.
ARE MR BYRON’S IMPAIRMENTS 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).
I have found that the total Impairment Rating for Mr Byron’s permanent impairments was 30 points, therefore Mr Byron satisfies section 94(1)(b) of the Act.
DID MR BYRON HAVE A CONTINUING INABILITY TO WORK? (SECTION 94(1)(C))
I have concluded that Mr Byron’s permanent impairments attract an impairment rating of more than 20 points under the Impairment Tables in the Qualification Period. Therefore it is necessary for me to consider whether he 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.
Mr Byron’s Impairments have not attracted 20 points under one single Impairment Table (i.e. they are not “severe impairments” as defined in s 94(3B)), therefore s 94(2)(aa) is the appropriate section under consideration.
Section 94(2)(aa) sets out when a person has a continuing inability to work because of an impairment. It provides:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
…
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The requirements for a program of support, as referred to in s 94(3C) are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in s 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (s 8, POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim. That is, Mr Byron must have actively participated in a POS for at least 18 months between 4 May 2013 and 4 May 2016. A POS is an obligatory legislative requirement.
Unfortunately for Mr Byron’s DSP claim, he has not participated in a POS in the relevant period.[76] This was not disputed by Mr Byron. However, during the hearing Mr Byron and his wife, expressed their frustration that Mr Byron was never told by Centrelink that he had to complete a POS. Mrs Byron said she was disgusted by the process and that despite Mr Byron attending designated POS providers they kept being told that Mr Byron had to be referred by Centrelink. Mrs Byron told the Tribunal that prior to Mr Byron’s accident at work, which has caused these impairments, they were managing financially and now they are struggling, about to lose their home, disheartened and humiliated because of having to continue to fight for disability. Mr Byron said he was never referred to POS by Centrelink. I empathise with Mr Byron and his family and their frustrations regarding their current situation. I note that Mr Byron has been enrolled in a POS since 17 August 2016, which commenced after the Qualification Period, and does not assist this DSP claim.
[76] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 17 August 2017, Attachment B, POS
Calculation and T68, page 276, POS Summary.
Mr Byron has not satisfied section 7 of the POS Determination, and there are no exceptions which apply because he was not enrolled in a POS during the Qualification Period. There is no way around this requirement of the legislation in circumstances where a single impairment has not had a 20 point impairment rating assigned to it. As a result, Mr Byron does not satisfy the requirements in section 94(2) of the Act and therefore, has not fulfilled the requirement in section 94(1)(c) of the Act.
Once Mr Byron has completed a POS (unless of course he is exempted by virtue of one of the exceptions in section 7 of the POS Determination) he can lodge another claim for DSP. Examples of exceptions to the POS requirement are set out in sections 7(4)-7(5) of the POS Determination. Pursuant to those exceptions, a person will be taken to have completed a POS if:
(a)the program of support was terminated before the end of the relevant period; and
(b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program;
or
(c)at the end of the relevant period, the person is participating in the program of support; and
(d)the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
However, a person must have enrolled in a POS prior to the Qualification Period for these exceptions to apply.
CONCLUSION
Mr Byron’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(c).
The decision under review is affirmed.

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

...............................[Sgd].........................................
Associate
Dated: 21 September 2017

Date of hearing: 13 September 2017

Advocate for the Applicant: Joanne Byron

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1536

21 September 2017

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	13 September 2017
Advocate for the Applicant:	Joanne Byron
Solicitors for the Respondent:	Department of Human Services