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

Chandler and Secretary, Department of Social Services (Social services second review) [2017] AATA 2423 (4 December 2017)
Division:GENERAL DIVISION
File Number: 2016/6915
Re:Dale Chandler
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:4 December 2017
Place:Brisbane

The Tribunal sets aside the decision under review and substitutes a decision that Mr Chandler qualified for disability support pension during the Qualification Period.
.................................[Sgd]....................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether conditions permanent – whether 20 points or more under the impairment tables during the relevant period – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
REASONS FOR DECISION
Member D K Grigg
4 December 2017
INTRODUCTION AND CLAIMS HISTORY

On 15 December 2015 Mr Chandler lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as:[1]
·depression (major)
·congenital back problem (had back surgery laminectomy, discectomy)
[1] Exhibit 1, T Documents, T20, page 124, Mr Chandler’s Claim for DSP dated 15 December 2015.
Mr Chandler says the conditions impact on his ability to function because he cannot sit or stand for too long, has anxiety and cannot tolerate people.[2]
[2] Exhibit 1, T Documents, T20, page 125, Mr Chandler’s Claim for DSP dated 15 December 2015.
On 19 May 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Chandler by a Qualified Social Worker, Accredited Exercise Physiologist and a Registered Psychologist. The JCA concluded that Mr Chandler’s medical conditions (spinal condition and depression) were fully diagnosed, fully treated and stabilised but were assessed as not having an impairment rating of 20 points or more.[3]
[3] Exhibit 1, T Documents, T24, pages 137 – 144, JCA Report dated 2 June 2016.
As a result of the JCA the Department of Human Services (“Centrelink”) rejected Mr Chandler’s claim for DSP on 2 June 2016.[4]
[4] Exhibit 1, T Documents, T25, pages 145 – 146, Letter from Centrelink dated 2 June 2016.
Mr Chandler sought a review of Centrelink’s decision to reject his DSP claim by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Chandler’s medical conditions did not attract 20 points or more under the Impairment Tables.[5]
[5] Exhibit 1, T Documents, T28, pages 149 – 154, Decision of ARO dated 27 July 2016.
Mr Chandler then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Chandler’s claim and affirmed the ARO’s decision on 25 November 2016.[6]
[6] Exhibit 1, T Documents, T2, pages 4 – 11, SSCSD’s Decision and Reasons for Decision dated
25 November 2016.
Mr Chandler has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1 – 3, Mr Chandler’s Application for Review dated 19 December 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Chandler must have a physical, intellectual or psychiatric impairment;
(b)Mr Chandler’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Mr Chandler must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Chandler meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 15 December 2015), unless

Mr Chandler becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, to qualify for DSP Mr Chandler must have met the Section 94 Requirements between 15 December 2015 and 15 March 2016 (“Qualification Period”).
[9] 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 Chandler’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairment/s as at the Qualification Date.[10]
DID MR CHANDLER HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[10] 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”.[11]
Mr Chandler’s Medical Conditions
[11] Determination, s 3.
Lower Back Condition
In May 2011 Mr Chandler was diagnosed with L5/S1 disc compression and was admitted for a laminectomy to dissect his L5/S1.[12]
[12] Exhibit 1, T Documents, T7, page 74, Hospital Discharge Summary dated 14 May 2011.
In July 2014 Mr Chandler had a CT guided injection into the L5 nerve root.[13]
[13] Exhibit 1, T Documents, T22, page 132, CT report dated 1 July 2014.
In January 2015 a CT of Mr Chandler’s lumbosacral spine found significant changes of facetal arthropathy especially from the L3/4 to L5/S1.[14]
[14] Exhibit 1, T Documents, T22, pages 132 – 133, CT report dated 2 January 2015.
In August 2015 MRI of Mr Chandler’s lumbar spine showed changes of lumbar spondylosis with multilevel disc disease and multilevel facetal arthropathy.[15]
[15] Exhibit 1, T Documents, T17, page 93, MRI report dated 28 August 2015.
In September 2015 Mr Chandler was seen in Dr Yang’s spinal surgery clinic regarding his low back pain and bilateral radicular pain. As a result of the consultation with Dr Yang’s clinic Mr Chandler was booked in for a decompression of his L3/4 and L4/5.[16]
[16] Exhibit 1, T Documents, T18, page 95, Report of Dr Fraser dated 16 September 2015.
In May 2016 Dr Venkata Nandamuri reported that Mr Chandler had decided not to go through with another surgery as the first surgery did not help his pain or function and that he is now managing his chronic pain with medications (Lyrica and Panadeine Forte) and rest from manual work.[17]
[17] Exhibit 1, T Documents, T23, page 136, Report of Dr Nandamuri dated 24 May 2016.
In June 2016 Dr Nandamuri reported that Mr Chandler:[18]
(a)had been suffering from low back pain and pain in both legs since 2010;
(b)had had a L5/S1 laminectomy in 2011 for relieving nerve compression which resulted in no improvement;
(c)decided not to go through any further surgery is as a result of the failure of the first surgery to improve his pain or disability;
(d)is unable to walk more than 200 metres due to his low back pain and leg pain;
(e)is unable to do any work or self-care;
(f)is managing the pain with pain relief medication; and
(g)is not expected to improve.
[18] Exhibit 1, T Documents, T26, page 147, Report of Dr Nadamuri dated 9 June 2016.
Depression
In 2009 Dr Kamal reported Mr Chandler had been presumptively diagnosed with a major depressive illness.[19]
[19] Exhibit 1, T Documents, T5, pages 60 – 67, Report of Dr Kamal dated 14 October 2009.
At the time of Mr Chandler’s laminectomy in May 2011 the hospital records noted that Mr Chandler was suffering from depression.[20]
[20] Exhibit 1, T Documents, T7, page 74, Hospital Discharge Summary dated 14 May 2011.
In February 2014 Dr Anura Tennakoon, General Practitioner, reported that Mr Chandler had been a patient of her practice since June 2010 and that he was currently suffering from depression for which he was taking medication and seeking help from a psychologist.[21]
[21] Exhibit 1, Supplementary T Documents, ST8, page 9, Report of Dr Tennakoon dated 3 February 2014.
A patient summary prepared in May 2014 noted that Mr Chandler was still suffering from major depression which began in 2010.[22]
[22] Exhibit 1, T Documents, T8, page 80, Mr Chandler's full patient summary dated 27 May 2014.
In July 2014 Ms Robyn Bridges, Psychologist, reported that she had been providing Mr Chandler with cognitive behaviour therapy and that he had severe depression, severe stress, and severe anxiety and she recommended that Mr Chandler have further consulting sessions.[23]
[23] Exhibit 1, Supplementary T Documents, ST9, page 10, Therapist Outcome Report prepared by Ms Bridges
dated 31 July 2014.
In November 2014 Dr Jenkins, Psychiatrist, reported that Mr Chandler suffers from chronic back pain with comorbid anxiety and depression and had recommended some changes to his antidepressant medication and reported that he may also benefit from more robust pain relief.[24]
[24] Exhibit 1, T Documents, T14, page 89, Report of Dr Jenkins dated 7 November 2014.
In April 2015 Dr Jenkins reported that Mr Chandler: [25]
(a)had symptoms of chronic back pain comorbid with major depression with anxiety;
(b)did not have the capacity to work in his occupation;
and that his prognosis for recovery was poor.
[25] Exhibit 1, Supplementary T Documents, ST14, pages 20 – 21, Report of Dr Jenkins dated 8 April 2015.
In Dr Jenkins’ opinion, the medication treatment had not been effective in relieving his symptoms, and he believed that Mr Chandler was unlikely to improve and would need to continue on his current treatment permanently.[26]
[26] Exhibit 1, Supplementary T Documents, ST14, pages 20 – 21, Report of Dr Jenkins dated 8 April 2015.
In September 2015 Mr Chandler was assessed by Dr Jagannathan Alagarsamy, Consultant Psychiatrist. Dr Alagarsamy was engaged as an independent medical examiner. Dr Alagarsamy reported that:[27]
[27] Exhibit 1, Supplementary T Documents, ST17, pages 24 – 32, Report of Dr Alagarsamy dated 9 September 2015.
·Mr Chandler had a major depressive disorder without psychotic symptoms, moderate severity, generalised anxiety disorder, moderate symptoms of alcohol abuse;
·moderate social and occupational impairment and function;
·a global assessment score of approximately 51;
·Mr Chandler currently presents with moderate symptoms of depression and anxiety;
·Mr Chandler’s current treatment is adequate, and he has been compliant with his treatment;
·“any degree of symptom reduction in Mr Chandler’s psychological condition would lead to an improvement in his functioning and quality of life. However, given his non-responsiveness to the medications and the chronicity of symptoms, it is highly unlikely that he would ever achieve a complete remission”;
·Mr Chandler is totally incapacitated from continuing with his duties as a horticulturalist or to any other employment due to his ongoing chronic pain and psychological difficulties;
·Mr Chandler’s prognosis is poor with regard to his future ability to return to work as a horticulturist or in any other occupation;
·he did not believe that Mr Chandler has any capacity to return to work in other alternative roles; and
·Mr Chandler has achieved maximum medical improvement.
In November 2015 Ms Bridges reported that:[28]
(a)Mr Chandler had attended 12 counselling sessions with her between March 2013 and October 2014;
(b)Mr Chandler’s symptoms of anxiety and depression had worsened since the commencement of therapy and included high levels of agitation, anxiety and feelings of sadness, difficulty sleeping, inability to concentrate and low motivation;
(c)Mr Chandler’s symptoms did not appear to reduce significantly with treatment; and
(d)Mr Chandler would not be able to return to his work duties as a horticulturalist/plant operator in the foreseeable future and there was no indication of non-compliance with treatment.
[28] Exhibit 1, Supplementary T Documents, ST18, pages 33 – 34, Report of Ms Bridges dated 2 November 2015.
In November 2015 the Queensland local government superannuation board determined that Mr Chandler was totally and permanently disabled (“TPD”) in accordance with its relevant documentation, and paid Mr Chandler a TPD benefit.[29]
[29] Exhibit 1, Supplementary T Documents, ST19, pages 35–36, Letter from LG Super to Mr Chandler dated 30
November 2015.
Dr Jenkins reported in December 2015 that Mr Chandler has chronic back pain and major depression with anxiety which she was treating with medication, both antidepressant and pain medications and was also being treated by Psychologist Robyn Bridges. Dr Jenkins reported that:[30]
[30] Exhibit 1, T Documents, T19, pages 97 – 98, Report of Dr Jenkins dated 14 December 2015.
…it was clear that with optimal therapy Mr Chandler continues to suffer from severe symptoms of both chronic pain and major depression with anxiety.
He is unable to work for the following reasons:
¾inability to attend work training
¾social withdrawal
¾high levels of anxiety in public settings
¾severe persistent disturbance of thought and mood
¾impaired mobility
¾impaired concentration
¾extreme risk of relapse
No additional treatment is likely to be providing any further improvement. Therefore Mr Chandler’s conditions is fully treated and fully stabilised. He is clearly unable to work in any capacity even 4 hours per week and this is likely to continue for a minimum of 2 years or longer.
In January 2016 Ms Skowronski, Psychologist, reported that:[31]
(a)Mr Chandler was referred to her in December 2015;
(b)Mr Chandler presented with depression due to chronic pain;
(c)Mr Chandler was originally diagnosed in or around 2012 by his general practitioner at the time;
(d)Mr Chandler is on an extensive range of medication in order to try to manage his condition and maintain acceptable pain threshold;
(e)Mr Chandler has difficulty sleeping, and is unable to sit in a soft chair, needing to keep up posture have strong support for his back; and
(f)moving and standing increases the pain due to the damage to the lumbar area.
[31] Exhibit 1, T Documents, T21, page 129, Report of Dr Skowronski dated 21 January 2016.
In July 2016 Dr Jenkins reported that:[32]
[32] Exhibit 1, T Documents, T27, page 148, Report of Dr Jenkins dated 8 July 2016.
(a)Mr Chandler had been his patient since November 2014;
(b)he believes Mr Chandler qualifies for a full 20 points for his condition of major depression with anxiety in the context of chronic back pain;
(c)Mr Chandler:
(i)currently requires daily emotional support and support with treatment from a partner;
(ii)has social withdrawal and loss of interests;
(iii)is clearly isolating as a result of his condition;
(iv)has persistent disturbance of thoughts and as a result of his condition would find it difficult to attend work and training;
(a)Mr Chandler’s concentration is impaired to the point where he is unable to complete tasks; and
(b)he believes that there “is no doubt that [Mr Chandler] is fully disabled, that he will not benefit from further treatment therefore he is fully treated, and this condition will persist longer for 2 years which makes him stabilised”.
In March 2017 Dr Jenkins wrote a further report “to supplement the letter written to Centrelink … on 14 December 2015.” Dr Jenkins wrote that he believed further clarification of Mr Chandler’s inability to work was required and reported that:[33]
I have no doubt whatsoever that this man meets the criteria for a full 20 points for his depressive illness. This is in addition to the chronic pain he suffers which is treated by OxyContin and Endone.
This man is significantly socially withdrawn and is unable to move around in public without support.
His anxiety in public prevents him from using public transport or being able to deal with crowds.
His severe depression meets criteria for severe disturbance of mood and the subsequent agitation, irritability, and social withdrawal are the severe persistent disturbance of behaviour.
His impaired mobility is clearly secondary to severity of pain.
He is unable to concentrate even 10 minutes on basic information.
There is no doubt he has an extremely high risk of relapse. This man is comprehensively treated but has extreme levels of symptoms which will not likely remit in the next 2 years. His inability to attend work or training is a direct result of this and were he to be required to attend work or training he would relapse.
[33] Exhibit 2, Secretary's Statement Of Facts Issues And Contentions dated 11 July 2017, Attachment A, Report of Dr
Jenkins dated 29 March 2017.
In July 2017 Dr Jenkins wrote a further report confirming that Mr Chandler has ongoing symptoms of major depression with anxiety in addition to his severe chronic pain and that is levels of anxiety at the moment were extremely high even with treatment.[34]
[34] Report of Dr Jenkins dated 25 July 2017.
Heart Condition
In September 2014 Mr Chandler was reviewed by Dr Vishva Wijesekera, Cardiologist, at the Prince Charles Hospital. Dr Wijesekera reported that Mr Chandler had been diagnosed with:[35]
·abnormal myocardial perfusion scan inferior territory;
·hypertension;
·hyperlipidaemia; and
·morbid obesity.
[35] Exhibit 1, T Documents, T12, pages 85 – 86, Report of Dr Wijesekera dated 8 September 2014.
Dr Wijesekera reported that Mr Chandler was likely to have significant coronary artery disease and she had arranged for him to have a coronary angiogram and had prescribed medication.[36]
[36] Exhibit 1, T Documents, T12, pages 85 – 86, Report of Dr Wijesekera dated 8 September 2014.
Conclusion on Impairment
The Secretary accepts that Mr Chandler suffered from impairments for the purposes of section 94(1)(a) at the Qualification Date.[37]
[37] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 11 July 2017, para 24.
In light of the medical evidence I conclude that at the Qualification Date Mr Chandler suffered from a Spinal Impairment and Mental Health Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
While I acknowledge that Mr Chandler also suffers from hypertension, hyperlipidaemia, morbid obesity, and a possible cardiomyopathy/coronary artery condition, there is simply no medical evidence regarding whether and how these conditions impact on Mr Chandler’s ability to function, what treatment if any Mr Chandler has had for the conditions and whether the conditions were fully stable during Qualification Period. As a result these conditions cannot be considered for the purposes of this DSP application.
DO MR CHANDLER’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.[38] They are function based[39] and designed to assign ratings to determine the level of functional impact of the impairment (“Impairment Rating”) and not to assess conditions.[40]
[38] Determination, s 4(2) and 5(2)(a).
[39] Determination, s 5(2)(b) and (c).
[40] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[41]
(a)Mr Chandler’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.
[41] Determination, see s 6(3).
Mr Chandler’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[42]
(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.
[42] 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”[43] the following must be considered:[44]
(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.
[43] For the purposes of ss 6(4)(a) and (b) of the Determination.
[44] Determination, see s 6(5).
A condition is “fully stabilised”[45] if:[46]
(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;[47] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[45] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[46] Determination, see s 6(6).
[47] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables, the Tribunal must first consider Mr Chandler’s medical history, in relation to the condition causing the Impairments.[48]
SPINAL IMPAIRMENT
[48] Determination, see s 6(2).
Is Mr Chandler’s Spinal Impairment permanent and likely to persist for at least 2 years?
In June 2016, the JCA concluded that Mr Chandler’s Spinal Impairment was permanent and noted that no further treatment was planned.[49] The Secretary accepts that Mr Chandler’s Spinal Impairment was fully diagnosed, fully treated and fully stabilised as at the Qualification Date.[50]
[49] Exhibit 1, T Documents, T6, pages 52 – 58, JCA report dated 17 June 2016.
[50] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 11 July 2017, para 33.
The medical evidence supports a finding that Mr Chandler’s Spinal Impairment was “permanent” at the Qualification Date and that an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Chandler’s Spinal Impairment has to be assessed against the descriptors[51] (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).[52]
[51] Determination, see ss 3 and 5(3).
[52] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[53]
[53] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[54]
(a)the information provided by the health professionals specified in the relevant Table;
(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.
[54] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[55]
(a)symptoms reported by Mr Chandler in relation to his condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Chandler’s local community.
[55] Determination, see s 8.
Which Tables are appropriate are determined by:[56]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[56] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[57]
[57] Determination, see s 10(3).
If an impairment is considered as falling between two Impairment Ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[58]
[58] 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.[59]
[59] 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.[60]
[60] Determination, see s 11(5).
Function Evidence and Impairment Rating
The Table relevant to an assignment of an Impairment Rating in relation to Mr Chandler’s Spinal Impairment is Table 3, which concerns lower limb function, and possibly Table 4, which concerns spinal function.
Table 3
The Secretary submits Table 3 is the appropriate Table because the medical evidence indicates a limitation of mobility due to radiating pain rather than any compromised spinal function.[61]
[61] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 11 July 2017, para 34.
The Introduction to Table 3 of the Determination provides:
·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 contends, as per the JCA,[62] that an appropriate Impairment Rating for Mr Chandler’s Spinal Impairment under Table 3 is 0 points because there is no evidence that Mr Chandler is unable to stand for more than 10 minutes (which would be required in order to achieve a 5 point rating).[63]
[62] Exhibit 1, T Documents, T24, page 140, JCA Report dated 2 June 2016
[63] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 11 July 2017, para 35.
Mr Chandler submitted that his Spinal Impairment is having a severe functional impact on activities involving spinal function and warrants an Impairment Rating of 20 points.
In order to assign an Impairment Rating of 5 points:
(a)at least one of the following must apply:
(i)[Mr Chandler] has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(ii)[Mr Chandler] has some difficulty walking around a shopping mall or supermarket without a rest; or
(iii)[Mr Chandler] has some difficulty climbing stairs; and
(b)At least one of the following applies:
(i)[Mr Chandler] is unable to stand for more than 10 minutes;
(ii)[Mr Chandler] can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
In order to assign an Impairment Rating of 20 points the evidence must establish that Mr Chandler:
(a)is unable to do any of the following:
(i)walk around a shopping centre or supermarket without assistance;
(ii)walk from the carpark into a shopping centre or supermarket without assistance;
(iii)stand up from a sitting position without assistance; and
(b)requires assistance to use public transport.
At the hearing Mr Chandler explained that the issue is the pain he experiences. He says because of the pain he cannot sit, stand or lie down for long and that he has deteriorated and now cannot stand for 10 minutes.
The JCA reported that Mr Chandler said:[64]
[64] Exhibit 1, T Documents, T24, page 138, JCA Report dated 2 June 2016.
·He has lower back pain feels like he is being ripped apart;
·He has radiating pain to both legs;
·Left leg has dull sensation to calf and foot where he feels like is slowed to move for step;
·He does not feel when he steps on something sharp;
·He can walk 150 meters and then stops to stretch his back or sit;
·Climbing stairs is slow;
·He can bend forward and touch his knees;
·He is able to reach overhead;
·He can lift groceries from knee height and heavier weight from table height;
·He can prepare and cook food;
·He can carry light baskets of washing;
·Personal care can be affected during acute episodes; and
·He needs assistance to wash his feet.
In June 2016 Dr Nandamuri reported that Mr Chandler:[65]
(a)had been suffering from low back pain and pain in both legs since 2010;
(b)is unable to walk more than 200 metres due to his low back pain and leg pain; and
(c)is unable to do any work or self-care.
[65] Exhibit 1, T Documents, T26, page 147, Report of Dr Nadamuri dated 9 June 2016.
There is no evidence to support an Impairment Rating of 20 points. The Tribunal finds that in the circumstances, given that there is no evidence that as at the Qualification Period Mr Chandler was unable to stand for more than 10 minutes, the appropriate rating is 0 points. Tribunal notes this is also consistent with Bundaberg Hospital records which indicate that:
(a)in September 2014 Mr Chandler presented to the emergency department having injured himself whilst drilling and cleaning a drainage pipe;[66]
(b)in February 2015 Mr Chandler presented to the emergency department having injured himself while using a rubber mallet;[67] and
(c)in May 2015 Mr Chandler presented himself to the emergency department having injured himself in a motor vehicle accident in which he was a driver.[68]
[66]         Exhibit 1, T documents, T13, page 87, Bundaberg Hospital emergency department clinical record dated
[67]         Exhibit 1, T documents, T13, page 90, Bundaberg Hospital emergency department clinical record dated
[68]         Exhibit 1, T documents, T13, page 91, Bundaberg Hospital emergency department clinical record dated
This kind of activity is not indicative of somebody experiencing an inability to function.
Table 4
The Introduction to Table 4 of the Determination provides:
·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:
oa report from the person’s treating doctor;
oa 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);
oa 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.
To obtain a 5-point rating the corroborating evidence would need to show that Mr Chandler has some difficulty in:
(a)activities overhead height (e.g. activities requiring [him] to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning [his] trunk or moving [his] head (e.g. to look to the sides or upwards).
To obtain a 10-point rating the corroborating evidence would need to show that Mr Chandler:
(1)…is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)[he] is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)[he] has difficulty moving [his] head to look in all directions (e.g. turning [his] head to look over [his] shoulder); or
(c)[he] is unable to bend forward to pick up a light object placed at knee height; or
(d)[he] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
To obtain a 20 point rating the corroborating evidence would need to show that Mr Chandler:
(1)…is unable to:
(a)perform any overhead activities; or
(b)turn [his] head, or bend [his] neck, without moving [his] trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
The evidence available indicates that Mr Chandler does not have difficulty with overhead activities and can bend down to knee height to pick up an object. There is no corroborating evidence that any impairment rating is appropriate under Table 4.
IS MR CHANDLER’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The Secretary concedes that Mr Chandler’s Mental Health Impairment was fully diagnosed, fully treated and fully stabilised at the Qualification Date.[69]
[69] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 11 July 2017, para 40.
It is clear from the medical evidence that prior to the Qualification Period Mr Chandler:
(a)had been diagnosed by a psychologist and psychiatrists with severe depression, severe stress and generalised anxiety disorder; and
(b)was being treated and managed with psychotherapy and anti-depressants at various times.
In the circumstances, the Tribunal finds that Mr Chandler’s Mental Health Impairment was permanent during the Qualification Date and an Impairment Rating can be assigned.
Function Evidence and Impairment Rating
The Table relevant to an assignment of an Impairment Rating in relation to Mr Chandler’s Mental Health Impairment is Table 5.
The Introduction to Table 5 of the Determination provides:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The JCA assigned an Impairment Rating of 10 points which the Secretary accepts is appropriate.[70]
[70] Exhibit 1, T Documents, T24, page 141, Job Capacity Assessment report dated 2 June 2016; Exhibit 2, Secretary's Statement Of Facts Issues And Contentions dated 11 July 2017, para 41.
Mr Chandler submits his Mental Health Impairment should be assigned 20-points and relies on the reports of Dr Jenkins.
In order to assign an Impairment Rating of 20 points the evidence would need to show that there is a severe functional impact on activities involving mental health function. The Descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

At the hearing Mr Chandler gave the following evidence:
·he can’t do anything, and his children help him every day;
·he can watch TV for 45 to 60 minutes, but he usually falls asleep;
·he can make himself a sandwich and would sometimes cook depending on his back pain;
·he doesn’t shop except maybe at the local shops;
·he can go to medical appointments on his own;
·when alone he watches TV, and sleeps for hours;
·he helps occasionally with the washing;
·he can do gardening for approximately one hour per week consisting of watering and maybe weeding;
·he has a couple of “mates” from work which he has maintained over several years that he sometimes speaks to on the phone and who come around to see him approximately once a month;
·he rarely goes to friends’ houses;
·he has a very good relationship with his children; and
·he has an okay relationship with his sister.
Mr Chandler’s wife also gave evidence before the Tribunal that during the Qualification Period she was working full-time approximately 37 ½ hours per week. During this time Mr Chandler was at home on his own
Dr Alagarsamy reported in September 2015 that Mr Chandler told him:[71]
·he can help his wife with household chores on occasion when not in pain;
·he can watch television;
·he can do the gardening for one hour per week; and
·he has distanced himself from his family and friends over the past year.
[71] Exhibit 1, supplementary T Documents, T 17, pages 24 – 32, Report of Dr Alagarsamy dated 9 September 2015.
Dr Alagarsamy concluded, based on his examination, that Mr Chandler had moderately severe symptoms, moderate social and occupational impairment in his function, and that he is totally incapacitated from performing his duties as a horticulturalist or any other employment due to his ongoing chronic pain and psychological difficulties (that is depressive and anxiety symptoms). At the hearing Mr Chandler said that he had never seen Dr Alagarsamy in person and that he had only spoken to him on the phone. However, the Tribunal noted that Dr Alagarsamy specifically recorded that Mr Chandler presented as obese and had a long goatee beard which Mrs Chandler confirmed was correct. It may be that given the passage of time that Mr Chandler has mistaken his appointment with Dr Alagarsamy with another medical practitioner.
The JCA relied on the report of Dr Jenkins dated 14 December 2015 to support an impairment rating of 10 points.
However, subsequent to the JCA assessment Dr Jenkins provided further reports to say that Mr Chandler’s Mental Health Impairment warranted a 20-point Impairment Rating.
The Secretary refers to these reports in the submissions but did not explain why they should not be followed. The Secretary relies on Dr Alagarsamy concluding Mr Chandler had moderate severity of symptoms. However, Dr Alagarsamy only saw Mr Chandler once, was not his regular treating doctor and provided his report 3-6 months prior to the Qualification Period. The Secretary also relied on Mr Chandler’s self-report. Table 5 clearly provides that a 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. During the hearing Mr Chandler did not always engage and often stepped away from the telephone leaving his wife to address the Tribunal.
The Tribunal sees no reason to depart from Dr Jenkins reports which are not inconsistent with the psychologists’ reports. The Tribunal finds that 20 points is an appropriate rating for Mr Chandler’s Mental Health Impairment under Table 5.
MR CHANDLER’S CHRONIC PAIN
In association with Mr Chandler’s Spinal Impairment he has chronic lower back pain.
Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain, 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).
The Tribunal has already found that the condition causing the chronic pain, the Spinal Impairment, has been fully diagnosed, fully treated and fully stabilised and has assigned an Impairment Rating to that condition. The Tribunal does not consider that the evidence justifies any increase in that Impairment Rating.
WERE MR CHANDLER’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
Mr Chandler’s Impairments total 20 points which satisfied the requirement in section 94(1)(b) of the Act.
DID MR CHANDLER HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
Section 94(2) of the Act 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).
Therefore, to satisfy section 94(1)(c), Mr Chandler must have:
(a)completed a program of support (“POS”) and have an impairment which is sufficient to prevent her from undertaking a training activity during the next 2 years or a training activity is unlikely, because of the impairment, to enable him to do any work independently of a program of support within the next 2 years; or
(b)a “severe impairment” which is sufficient to prevent him from undertaking a training activity during the next 2 years or a training activity is unlikely, because of the impairment, to enable him to do any work independently of a program of support within the next 2 years.
The requirements for a POS, as referred to in s 94(3C) of the Act, 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 section 7(2), that a person will have actively participated in a POS 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 POS is not taken into account (section 8, POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim. Mr Chandler must have actively participated in a POS for at least 18 months in the 3 years prior to 15 December 2015. Centrelink records indicate that Mr Chandler has not participated in a POS during the relevant period.[72]
[72] Exhibit 1, T Documents, T30, page 163, Program of Support Summary.
However, because the Tribunal has found that Mr Chandler’s Impairments have attracted 20 points under one single Impairment Table (i.e. it is a “severe impairment” as defined in s 94(3B)), he is not under an obligation to have completed a POS.
In the case of a severe impairment a person has a continuing inability to work pursuant to section 94(2) if:
(a)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)either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
The term 'work' is defined in subsection 94(5) of the Act, as work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
The JCA assessed Mr Chandler as having a future work capacity of at least 15-22 hours per week within the next two years with intervention.[73]
[73] Exhibit 1, T Documents, T24, page 142, JCA Report dated 2 June 2016.
However, the JCA does not accord with the:
(a)Report of Dr Alagarsamy that Mr Chandler:
(i)is totally incapacitated from continuing with any employment due to his chronic pain and psychological difficulties;
(ii)has no capacity to return to work;
(iii)has a poor prognosis about his future ability to return to work in any occupation; and
(iv)has achieved maximum medical improvement.;
(b)Report of Ms Bridges that Mr Chandler’s symptoms were worsening; or
(c)Report of Dr Jenkins that Mr Chandler:
(i)is unable to attend work training;
(ii)is unable to work in any capacity even 4 hours per week and this is likely to continue for a minimum of 2 years;
(iii)will not benefit from any further treatment; and
(iv)would relapse further if required to attend work or training.
In the circumstances the Tribunal finds that Mr Chandler has a continuing inability to work and satisfies section 94(1)(c) of the Act.
DECISION
Mr Chandler’s claim succeeds because he did qualify for DSP during the Qualification Period under section 94 of the Act.
The decision under review is set aside and substituted with a decision that Mr Chandler qualified for DSP during the Qualification Period.

109. I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg.

.............................[Sgd]...............................
Associate
Dated: 4 December 2017

Date of hearing: 26 October 2017

Advocate:
Ms Sally Anne Chandler

Solicitors for the Respondent: Ms Claire Campbell
Department of Human Services

26 September 2014.

14 February 2015.

14 May 2015.

[2017] AATA 2423

4 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Standing

Natural Justice

Date of hearing:	26 October 2017
Advocate:	Ms Sally Anne Chandler
Solicitors for the Respondent:	Ms Claire Campbell Department of Human Services