DLRN and Secretary, Department of Social Services (Social services second review)
[2019] AATA 1922
•16 July 2019
DLRN and Secretary, Department of Social Services (Social services second review) [2019] AATA 1922 (16 July 2019)
Division:GENERAL DIVISION
File Number: 2017/6145
Re:DLRN
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member K. Parker
Date:16 July 2019
Place:Melbourne
The Tribunal affirms the decision under review.
..........[sgd]..............................................................
Member K. Parker
Catchwords
SOCIAL SECURITY – disability support pension – back condition – post-traumatic stress disorder – whether conditions were permanent – whether conditions were fully diagnosed, treated and stabilised and likely to persist for more than two years – impairments did not attract 20 points or more under the Impairment Tables – eligibility requirements not met - decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 35, 37
Social Security Act 1991 (Cth), ss 23, 26, 94
Victims of Crime Assistance Act 1996 (Vic)Cases
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 & Workplace Relations v Harris [2007] FCAFC 130 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286Secondary Materials
Social Security (Active Participation for Disability Support Pension) Determination 2014Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, ss 3, 6, 11
REASONS FOR DECISION
Member K. Parker
16 July 2019
INTRODUCTION
The Applicant, DLRN, has claimed the disability support pension (DSP) under the Social Security Act 1991 (Cth) (the Act).[1]
[1] The Tribunal acknowledges that DLRN has been the victim of a violent crime and states that he continues to live in fear that the perpetrators of this crime may harm him if they know of his whereabouts. In order to avoid causing distress to DLRN, the Tribunal has made confidentiality orders under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) to protect the identity of the applicant when publishing this Decision and Reasons for Decision by applying a pseudonym “DLRN” and by not referring to any evidence or information that may reveal his identity.
DLRN’s DSP claim was rejected by Centrelink and he sought review by an Authorised Review Officer (ARO). The ARO affirmed Centrelink’s decision to reject his DSP claim.
DLRN sought review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1). The AAT1 affirmed the ARO’s decision based on an assessment of impairments arising from the conditions of a spinal injury, mental health conditions (PTSD and bipolar disorder), left knee injury and diabetes.
DLRN has sought review of the AAT1’s decision by the General Division of the Administrative Appeals Tribunal (this Tribunal). At the hearing, DLRN informed the Tribunal that he claimed the DSP on the basis of impairments caused by the following two conditions:
(a)a back condition he sustained from a workplace injury in about 2003; and
(b)post-traumatic stress disorder (PTSD) which he sustained as a result of an extremely violent crime perpetrated against him in 2015 (the Incident).
Accordingly, the Tribunal will assess DLRN’s claim on the basis of these two conditions.
Pursuant to the Secretary’s obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) a set of documents were lodged by the Secretary with the Tribunal on 14 November 2017 (T-Documents).
On 22 February 2018 the Tribunal received further documentary evidence relating to DLRN including:
(a)a letter from DLRN’s current treating general practitioner, Dr M, Medical Clinic X, dated 3 February 2018;
(b)two separate Centrelink medical certificates signed by Dr M dated 2 February 2018 and 20 February 2018 respectively;
(c)a patient health summary printed on 13 February 2018 listing allergies, adverse reactions and current medications;
(d)a receipt issued by Dr M on 13 February 2018; and
(e)a copy of an application made by DLRN under the Victims of Crime Assistance Act 1996 (Vic) confirming that he was entitled to assistance for a criminal act committed against him in 2015 and a corresponding payment advice issued by Court Services Victoria in 2018.
On 27 April 2018, the Secretary lodged with the Tribunal a Statement of Facts and Contentions (Secretary’s Submissions) and attached a further set of documents (Supplementary T-Documents).
On 23 August 2018, DLRN provided:
(a)a written statement to the Tribunal (in the form of a letter);
(b)a letter dated 19 July 2018 from [Health Service X] stating that DLRN had been placed on the waiting list for a cystoscopy;
(c)a referral letter from Dr M to a neurologist dated 27 July 2018 which reproduces the results of a CT scan of DLRN’s lumbar spine and pelvis (left hip and right hip) undertaken on 13 June 2018; and
(d)a list of his current medications and past medical history.
On 4 March 2019, the Tribunal received a further Centrelink medical certificate signed by Dr M on 21 February 2019.
The relevant assessment period in this case extends from 24 October 2016 (the date that DLRN made his claim for DSP)[2] for a period of 13 weeks ending on 23 January 2017 (Assessment Period).
[2] Refer T-Documents T36/36.
The Tribunal has taken into account all of the documentary evidence lodged before and after the hearing of this application, the Secretary’s Submissions, the Job Capacity Assessment (JCA) Reports dated 18 October 2012 and 6 December 2016, Employment Services Assessment (ESA) Report dated 7 November 2016 and Centrelink’s Assessment Services Recommendations for DSP medical eligibility dated 12 July 2017. The Tribunal has also considered the oral submissions made by DLRN, by telephone, and the Secretary’s representative at the hearing of this application.
The Tribunal has decided to affirm the decision under review for the reasons outlined in these Reasons for Decision.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(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.
(3A)…
Severe impairment
(3B)A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Active participation in a program of support
(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.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
(5)In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
“training activity” means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments;
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
Work means 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.
‘Impairment Tables’ is defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of the functional impact.
“Impairment” is defined in s 3 of the Determination to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Subsection 6(1) in Part 2 of the Determination provides: the impairment of a person must be assessed on the basis of what they can, or could do, not on the basis of what the person chooses to do or what others do for the person. Subsection 6(2) also provides that the person’s medical history must be considered before applying the tables to a person’s impairment.
Further, subsection 11(3) of Part 2 of the Determination provides that a descriptor applies when the person can do the activity normally, on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Subsection 11(4) provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments; taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
ISSUES
The issues to be determined are, as at the time of the Qualification Period:
(a)whether DLRN had any physical, intellectual, or psychiatric impairments;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised, and were more likely than not to persist for more than two years);
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables;
(d)if so, whether DLRN had a continuing inability to work; and
(e)unless the Tribunal finds that DLRN had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one table), whether he had satisfied the program of support requirements.
EVIDENCE BEFORE THE TRIBUNAL
Information provided by DLRN on the DSP claim form
DLRN is aged in his mid-40’s. On the DSP claim form completed by DLRN, he listed his “disabilities, illnesses or injuries” as follows:[3]
(a)“Spinal injury, post op”;
(b)“P.T.S.D. (Post Traumatic Stress);
(c)“Bi Polar Disorder”;
(d)“Depression”; and
(e)“Heart Condition”.
[3] Refer T-Documents T7/42.
On the claim form, DLRN indicated that he did not “believe that he required nursing home level of care, frequent support or supervision from a carer, or palliative care”.[4] DLRN listed his current treatment as “regular medication” and indicated that he was not expecting to have an operation in the future. DLRN listed Dr M and Detective X, who could provide information about his disabilities, illnesses or injuries.[5] DLRN stated on the claim form that he was in “constant severe pain” and was “living in fear of my life”.[6] He stated that he had completed Year 10 and did not hold any qualifications.
[4] Ibid.
[5] Refer T-Documents T7/43.
[6] Ibid.
DLRN stated on the claim form that he worked as a Storeroom Manager from 2002 to 2016. When asked whether he had participated in any programs to help him find work, stay in a job, return to work, manage his injury or help him with vocational rehabilitation, gaining new skills, work experience or training, in the last three years he indicated that he had not done so.[7] When asked on the form when DLRN thought he could do any activities that would help him prepare for work, he ticked the “not sure” box and then wrote next to it, “Never”.
Medical evidence
[7] Refer T-Documents T7/44.
Dr E, former GP
On 19 August 2015, Dr E, Medical Clinic Y, provided a medical certificate stating that DLRN “has a post traumatic stress disorder with nightmares, loss of bladder function, fear and insomnia as a victim of crime”.[8] Dr E formerly treated DLRN and had commenced doing so in about 2000.[9]
[8] Refer T-Documents T8/46.
[9] Refer T-Documents T4/21. At T6/35, Dr E stated that he started treating DLRN in 1998. At T20/74-84, Dr E stated that DLRN had been his patient since 17 January 2002. Nothing turns on this discrepancy.
Dr E completed a Medical Report on 4 September 2012 for an earlier DSP claim made by DLRN.[10] In this report, Dr E identified that DLRN had two medical conditions that had a significant impact on his ability to function including:
(a)Condition 1 (being the “condition with most impact”) with a “confirmed diagnosis” was “Spinal surgery in 2004 but no improvement to pain (Spinal fusion L45)”. The date of onset was listed as 2 March 2002 and the date of diagnosis was listed as 21 August 2003. The “history” for this condition provided by Dr E was “Lifting injury with L4 5 disc prolapse”. The “current symptoms” was described by Dr E as follows: “Chronic spinal pain & falls risk - has to use walking stick at times to lessen falls risk”. The “current treatment” was listed as “analgesics/pain modifiers”. The “past treatment” was listed as “physiotherapy/analgesics/surgery”. The “future/planned treatment” was listed as “Pain Clinic/Analgesics”. Dr E indicated that DLRN was “very compliant” with recommended treatment. Dr E stated that this condition affected DLRN’s ability to function as follows: “Chronic pain/poor concentration/?/poor mobility & poor flexibility” and that this was expected to persist for more than 24 months and to remain unchanged over that period.
(b)Condition 2 with a “confirmed diagnosis” was “Bipolar Affective Disorder”. The date of onset was listed as approximately 2000 and the date of diagnosis was listed as 2011. The “clinical history” of this condition was described as follows: “Longstanding psychiatric illness with agitation and depression” and the “current symptoms” were listed as, “lowered mood/poor concentration”. The current treatment was listed as “Endep/Valpro”; past treatment (and future/planned treatment) listed as “??lytic antidepressants/Xanax”. Dr E stated that this condition affected DLRN’s ability to function as follows: “Poor concentration/altered mood/ Depressed mood” and that it was likely to persist for more than 24 months and remain unchanged for the next two years.
[10] Refer T-Documents T4.
In the report, Dr E stated that:
(a)DLRN did not have any other conditions;
(b)he had not been hospitalised in the past 12 months; and
(c)there were no applicable specialist or investigation reports to provide.[11]
[11] Refer T-Documents T4/20.
Dr E provided a Medical Report dated 5 September 2013 in respect of a claim by DLRN to receive a Sickness Allowance.[12] In this report, Dr E listed one medical condition that was being experienced by DLRN, being “L45/L5S1 Disc Prolapse/Chronic back pain” with a date of onset being August 2002. Dr E listed his current treatment as Endep, Panadeine Forte and one other medication (illegible) commencing in 2002. The past treatment of this condition (and future/planned treatment) was listed as “physio” and “Specialist Dr” and that he had previously been referred to Mr J, orthopaedic for a consultation in 2003 and Dr T in 2008. Dr E stated that the effect of this spinal condition on DLRN’s ability to function was stabilised and likely to persist for more than two years. Dr E was not able to indicate that DLRN was likely to be able to return to his usual occupation in any period of less than two years.
[12] Refer T-Documents T5.
On 8 January 2013, 28 March 2013, 21 June 2013, 2 January 2014, 28 March 2014, 24 June 2014, 1 February 2014, 5 January 2015, 31 March 2015 and 17 September 2015, Dr E issued Centrelink medical certificates filled out in a virtually identical manner stating that DLRN was diagnosed with the back injury with the onset of 3 September 2003 which was likely to persist and that he was unfit for usual work or study or any other work for more than eight hour week and the “treatment” listed was “rest”.[13]
[13] Refer T-Documents T20/74-84.
Dr J, GP
Dr J, general practitioner, issued Centrelink medical certificates in respect of DLRN on 5 January 2016, 15 February 2016, 14 March 2016 and 20 February 2017.[14] The certificates state that DLRN had been diagnosed with a back injury on 3 September 2003 which was “permanent (likely to persist for 2 years or more)” and that his current treatment was “exercise, hydrotherapy”. Dr J certified that he was unfit for work or study. On the last certificate dated 20 February 2017 (falling within the Assessment Period), Dr J also diagnosed DLRN with the conditions of “back injury” and “PTSD” and stated that his “severe PTSD” may impact on his participation in assistance that may be offered to help him return to work or study.
[14] Refer T-Documents T20/85-87 & 93.
Dr J stated on the medical certificates that DLRN had been his patient since 21 October 2015.
Dr M, current GP
Dr M commenced treating DLRN since October 2015 after his “regular GP” went on indefinite leave.[15]
[15] Refer T-Documents T10/51.
On 16 November 2016, shortly after the commencement of the Assessment Period, Dr M wrote a letter Centrelink stating as follows:[16]
…DLRN has Complex Medical and Psychological issues due to which he is unable to continue with employment. He had work related Low Back Injury and underwent L5-S1 Spinal Decompression and Fusion in 2004. March has ongoing Back pain needing regular Hydrotherapy and Analgesia.
DLRN also suffers with Post Traumatic Stress Disorder as result of Victim of Serious Crime. DLRN gets Anxiety/Panic attacks/Insomnia. He is having regular Counselling by [Dr H], Psychologist.
DLRN has H/O Bipolar disorder and Diabetes Mellitus Type2 and is on regular medications…
[16] Ibid.
On 18 April 2017, Dr M issued a general medical certificate stating as follows:[17]
DLRN suffers with Low Back pain, Severe PTSD, Anxiety, Depression, Bipolar Disorder, Left Knee injury, Insomnia. Please let me know if you have any queries.
[17] Refer T-Documents T13/60.
Dr M issued Centrelink medical certificates dated 16 May 2016, 15 July 2016, 15 September 2016, 21 October 2016 and 16 November 2016 (and after the Assessment Period on 18 April 2017, 18 May 2017 and 17 August 2017).[18]
[18] Refer T-Documents T20/88-92 & 94-97.
Dr M provided a further medical report dated 3 February 2018 addressed to this Tribunal.[19] Dr M provided the following answers to a set of questions put to him by the Secretary’s representative under cover of her letter dated 6 December 2017 (the questions are set out in bold in brackets immediately before Dr M’s answers).[20] Dr M was requested to provide his answers specifically by reference to DLRN’s “conditions and level of impairment as they were on 24 October 2016 and the following 13 weeks”.
[19] Refer T-Documents ST4/199.
[20] Refer T-Documents ST1/180-190.
I have been seeing [DLRN] since May 2016 who has been applied for Disability Support Pension. Please see the questions answered below:
1)[Describe the diagnosis and date of onset of each [of DLRN’s] conditions] DLRN has had Low Back injury on 03/09/2003 and PTSD since 09/09/2015.
2)[Are the conditions expected to persist for more than two years from 24 October 2016] Yes I think the conditions are going to persist for long time
3)[Are the functional impacts arising from the conditions expected to persist for more than two years from 24 October 2016?] Yes, functional impacts from the medical conditions DLRN suffering might last >2 yrs.
4)[Describe the treatment that [DLRN] has received for each condition prior to 24 October 2016. Please include details of the date/s on which relevant treatments were undertaken, and for how long such treatment was undertaken] Back Injury - DLRN had underwent L5/S1 Decompression and Spinal Fusion operation in Nov2005. Done by [Mr J].
PTSD – DLRN developed PTSD post assult(sic), [type of crime and date omitted], had been seeing Psychologist and takes Valium, Endep for his symptoms.
5)[Was [DLRN] fully compliant with all treatment recommendations?] Yes, DLRN seems to be compliant with the all treatment recommondations(sic).
6)[Were there any further investigations, specialist referrals or treatments yet to be undertaken for any condition as at 24 October 2016? Were such treatments, [as at] 24 October 2016 expected to result in any change to the severity or frequency of [DLRN’s] symptoms within two years of 24 October 2016? If so, to what extent?] No further investigations, Specialists referrals or treatments undertaken and I don’t think his symptoms are going to improve over next 2 yrs time.
7)[Does [DLRN] have, or has it been recommended he use, any aids, equipment or assistive technology?] DLRN uses walking stick to help with back pain on and off.
8) [Provide a description of the symptoms suffered by [DLRN], as well as the frequency and severity of the symptoms as at 24 October 2016. Please describe, with examples, how such symptoms impacted [DLRN’s] ability to carry out everyday activities. Please note that your answer should reflect [DLRN’s] capabilities when using any aids, equipment or assistive technology that they have and normally use. You may wish to refer to the attached Impairment Tables 4 and 5 in your response.] Back pain-constant ache, radiates to left lower limb, some weekness(sic). Back pain causing moderate to severe functional impact on activities involving spinal function
PTSD Fear of safety, Insomnia, Nightmares, Flash backs, sweats, severly(sic) traumatised as result of crime, he continue to see Psychologist Ms F at our clinic.
9)[Is [DLRN] able to perform any work for at least 15 hours a week or undertake training in the next two years?] I don’t think DLRN would be able to do any work due to his ongoing Back issues.
In a further letter dated 23 May 2018, Dr M stated that due to ongoing and further threats to DLRN’s life with regard to the Incident he had moved his residence for the third time “due to catastrophic concerns for his safety”. Dr M stated that the Police had been working with DLRN in relation to those threats to his life and DLRN had taken every safety measure, including changing his name, in hope that the “ongoing threats” would cease.[21] Dr M stated that the ongoing threats were making DLRN’s symptoms worse and that since the time of the incident and, subsequently, he had been too afraid to stay in his home alone overnight. Dr M stated that DLRN’s father had passed away in 2017 and three months later, his mother had passed away and that he was too fearful to attend their funeral out of fear that the perpetrators may harm other members of his family.
[21] The Tribunal notes a Birth Certificate, Exhibit “A5”, issued on 11 July 2017 which provides a different name for DLRN than the name he had at birth.
The Tribunal notes that Dr M made the following statements his letter dated 23 May 2018:[22]
…
DLRN has admitted to using Cannabis since Nov 2016, his Cannabis use has got worse since the death of his oparents(sic). He also admitted he uses it to help with his appetite and to help with his ongoing insomnia to aid with his sleep and to help stop the flash backs and night mares he suffers from ordeal he faced […] and has become depend on it (addicted).
DLRN is also suffering from loss of bladder control due to his fear and ongoing medical condition. DLRN has agreed to work with me an(sic) his Psychologist [Ms F] to attempt to address his Cannabis addiction.
DLRN has and still is compliant with all other treatments and medications.
[22] Refer Exhibit “A4”.
Dr M wrote a further letter dated 18 July 2018 which stated as follows:[23]
DLRN condition is currently stable and regards to his Spinal condition and his PTSD. How ever(sic) he is not medically fit enough physically or mentally to travel to Melbourne for the conference on the [date in July 2018] as he is still in fear for his safety also, DLRN’s symptoms will persist longer than 2 years in my opinion. He continues to see [Ms F] (Psychologist) fortnightly and is currently also seeing [Dr A] (Psychiatrist…) for his PTSD.
…
[23] Refer Exhibit “A7”.
Dr H, clinical psychologist
Dr H, clinical psychologist at a community health centre, prepared an “Initial Report” dated 9 May 2017 (Initial Report) in relation to DLRN in a format that was intended to be provided to the Victims of Crime Assistance Tribunal (VCA Tribunal).[24] Dr H, in the Initial Report, stated that she has had 30 years of experience in the assessment, diagnosis and treatment of mental health disorders. Dr H also stated that DLRN had been referred to her by Dr M. Dr H set out details of the Incident in section 3.1 of this report. The Tribunal will not describe it in detail in these Reasons for Decision to protect the anonymity of DLRN, save to say that it involved extreme acts of violence and torture against DLRN and another person.
[24] Refer Exhibit “A2”.
Dr H records in her Initial Report that she had provided DLRN with three sessions of counselling which commenced on 24 October 2016. In the report, Dr H recommended to the VCA Tribunal that DLRN is provided with a further five hours of counselling. The Initial Report recorded that DLRN had not received counselling from any other provider in relation to the Incident. Dr H stated that the type of intervention or treatment she had provided DLRN was “assessment only”.[25]
[25] Ibid at page 3.
Dr H was asked to outline DLRN’s “psychological/psychiatric problems, presenting symptoms or issues”. Dr H described them as follows:
Post Traumatic Stress Disorder, characterised by ongoing distressed nightmares, flashbacks, intrusive thoughts memories and images.
Dr H stated in the Initial Report that DLRN had denied experiencing any of the above symptoms prior to the Incident and they had arisen subsequent to the Incident. In section 5.3, the Tribunal notes that Dr H observed that there had been no improvement in DLRN’s symptoms since her first appointment with him and instead, over the previous two months (i.e. March 2017 and April 2017), DLRN’s mental health had deteriorated in the context of the death of his father in 2016 and a relationship breakdown one month after that event.[26]
[26] Ibid at page 3. Refer paragraph [89] in relation to DLRN’s evidence that his father died in 2017, not 2016 as indicated by Dr H and that this must have been an error.
Ms F, treating psychologist
Ms F is a psychologist at Medical Clinic X. Ms F issued a Certificate of Attendance stating that DLRN had attended eight counselling sessions with her from 20 April 2017 to 27 July 2017 “to address PTSD and [issues relating to the Incident]”. In this certificate, Ms F stated, “it is recommended DLRN receive ongoing counselling”.
In a further letter dated 5 April 2018, Ms F confirmed that DLRN had attended three counselling sessions with her from 20 April 2017 to 28 September 2017 and that he had re-engaged in counselling with her on 5 April 2018.[27] Ms F stated that DLRN presented with symptoms of PTSD due to a traumatic experience that had occurred in 2015 and that he would require ongoing counselling for his symptoms to assist with working towards improving his daily functioning.
[27] Refer Exhibit “A3”.
Dr A, treating psychiatrist
At the hearing, DLRN tendered a medical report by his treating psychiatrist, Dr A, dated 3 July 2018.[28] Dr A stated in his report that he is a consultant psychiatrist at Health Service X and that he was assisting DLRN with a medical condition. He stated in the report that he had last seen DLRN on 3 July 2018 and that he had formed the opinion that he had ongoing features of PTSD, complicated by some depressive features.
[28] Refer Exhibit “A1”.
Evidence given by DLRN at the hearing
At the hearing, DLRN told the Tribunal that he was “severely suffering PTSD” and that it was the main reason he had applied for the DSP. He said he was “living in fear of my life because of” the crime that was committed against him. He told the Tribunal he was not able to go out on his own and that he had to have someone with him. He told the Tribunal it had been a “rough period”. He said he was “under the care of a doctor of psychiatry”, Dr A, and that he saw a psychologist (Ms F) every fortnight. He said he checked in with his GP (Dr M) and that they were working with him with “medications and flashbacks and everything going on with my situation”.
At the hearing, DLRN tendered the following further medical evidence including:
(a)Dr A’s letter dated 3 July 2018;[29]
(b)the Initial Report by Dr B dated 9 May 2017;
(c)the certificate of attendance by Ms F (undated) referred to in paragraph [42] and further letter by Ms F dated 5 April 2018 referred to in paragraph [43].[30]
[29] Refer Exhibit “A1”.
[30] Refer Exhibit “A3”.
DLRN also tendered a copy of his Victorian driver’s licence with an expiry date of [day and month omitted] 2027 and a “PCC” (pensioner concession card).[31]
[31] Refer Exhibit “A6”.
After the hearing on 27 July 2019, with the permission of the Tribunal, DLRN lodged a further letter by Dr M dated 18 July 2018, as referred to in paragraph [37],[32] and also a letter from a medical imaging centre dated 2 July 2018 stating that DLRN was booked in for an appointment to have a “CT Joint Injection – Other” on 24 July 2018.[33]
[32] Refer Exhibit “A7”.
[33] Refer Exhibit “A8”.
In relation to the CT appointment, DLRN told the Tribunal that he is now receiving cortisone injections to the left hip “to do with his spine”. He said he was getting a lot of weakness in his left leg, and “they have now commenced the injections”. He told the Tribunal the “possible outlook was surgery with a possible hip replacement”.
DLRN told that Tribunal that he had also recently attended a medical assessment with the Department where he had been “exempted until July 2019”. He said he was exempted from attending the job agency based on the medical reports he “presented, on the day of the review”. DLRN said that “a lady from the Centrelink office in [name of town omitted] (from the disability department) undertook the assessment”. DLRN said that this Centrelink representative was not a doctor. He told the Tribunal she “suspended my capacity for 12 months” and he was “exempted from undertaking job search activities”. He said job services provider was informed and that this assessment was the last appointment he had attended.
DLRN told the Tribunal, “I am complying with all of my treatment and advice from all of my clinicians”.
Cross examination of DLRN
In relation to DLRN’s back condition, the Secretary’s representative took DLRN to:
(a)a number of medical certificates indicating that planned treatment for DLRN had been described by his doctors as including a specialist’s review or assessment, specifically:
(i)
Dr M’s medical certificate covering the period 18 September 2016 to
18 October 2016;[34]
[34] Refer T-Documents T20/90.
(ii)
Dr M’s medical certificate covering the period 19 October 2016 to
19 November 2016;[35] and
(iii)Dr J’s medical certificate covering the period 20 February 2017 to 20 April 2017;[36] and
(b)paragraph [18] of the AAT1 decision which records that DLRN “told the Tribunal that he is not seeing a specialist and there are no plans for being reviewed by a specialist for his back pain”;[37] and
(c)paragraph [20] of the AAT1 decision which records that DLRN “said he has discussed pain management with both his old and new GP but they have considered it would not be of benefit”.[38]
[35] Refer T-Documents T20/91.
[36] Refer T-Documents T20/93.
[37] Refer T-Documents T2/5.
[38] Ibid.
The Secretary’s representative also took DLRN to a report by Dr M where he stated, “no further investigations, specialist referrals or treatment undertaken” and asked DLRN what “investigations, referrals or treatment” Dr M was referring to. DLRN responded to this question as follows:
I don’t have a recollection. I haven’t been back to see my original, orthopaedic surgeon. He is situated in [name of place omitted]. I have been unable to travel which ties in with my PTSD and being followed and being in fear of my safety and complying with medications and hydrotherapy, and local and somebody with me[?]. I was trying everything possibly to improve the condition with my back. They have said since surgery there is nothing further they can do, besides pain management with medications and the walking aid.
Upon answering this question, DLRN said that he was referring to the period of time from his original back surgery (on 17 November 2004) and while under the care of Dr E. DLRN confirmed that Dr M commenced treating him sometime between March and July 2016, after Dr E retired.
DLRN confirmed that he had specialist treatment under the care of Dr M, but did not have copies of documents relating to this. He said they should be accessible “with Dr M”. He confirmed he saw the specialists as a follow up to his back surgery. When DLRN was asked which specialist he saw and what treatment advice he was given, he responded that he was admitted to hospital in early 2017 and a number of times prior to this. He said he remembered being admitted in February 2017 due to a fall and was assessed while he was in the hospital. He referred to MRI scans that were undertaken due to the weakness in his leg and that he was told they did not think it would improve by him having more surgery. He said the hospital discharged him with “pain medications, exercise and hydrotherapy”. He said he attended a hydrotherapy pool and “went on with a walking aid and medications”.
DLRN said he had experienced another fall a few weeks ago and was hospitalised, which led to the cortisone injections in his left hip. DLRN said he starting having the falls in about November 2016. DLRN said from early 2017 he had experienced falls regularly and now had to use a walking stick “permanently”. He said that since his last fall, when he damaged his hip, he had been referred for a cortisone injection. He said that due to pain, he was progressing now with CT injections which had commenced on 24 July 2018.
DLRN confirmed that he had been using a walking stick in 2017 and that he had been using it on and off prior to that, due to the severity of the pain which radiated down into his left leg.
When asked whether the cortisone injection related to the left hip complaint or due to the pain radiating down the leg from the back, DLRN said it was “from the pain radiating down the leg from the back because of the weakness, losing control of my left leg and falling”. The Tribunal asked DLRN about a reference on the imaging request which indicated that the request had been made due to “left hip pain for weeks, marked degree of degeneration”. DLRN told the Tribunal that “my left side has caused the degeneration of the hip joint and favouring the left side”. He conceded that he had experienced “left hip pain for weeks” and that this was from the impact of the falls as he had landed on his left side which had caused him pain. He said that they had elected to commence with the cortisone injections, instead of placing him on pain medication.
DLRN said the only treatment for his back complaint was during the “late 2016/early2017” period was “hydrotherapy in the pool, exercise and medications”. He confirmed that the recommendations for the treatment were given by the doctors at the hospital and they were supported by his GP. He confirmed that he saw an orthopaedic surgeon at the hospital who had reviewed the MRI scan and had told him, in reference to his spine, that there would not be any improvement or further surgery as it may incapacitate him further. DLRN said he could not remember the name of the orthopaedic surgeon.
When asked by the Secretary’s representative whether he had tried to obtain evidence of this advice given to him by the orthopaedic surgeon, DLRN said:
I requested through BMI imaging to get a copy of the scan results. Hard to get hold of the orthopaedic surgeon. I don’t remember the name. I was reviewed by quite a few doctors at the hospital.
DLRN said he had tried to obtain the discharge report by contacting the hospital by telephone. He said he spoke to the “admissions clerk” and the “triage admissions department”. He said they told him they had a record of his admission, but it was not a record from the orthopaedic team. He said they told him they had requested it, but “he didn’t send through a response”. DLRN said this had been “rather frustrating”.
DLRN confirmed that Dr M considered that further surgery would not be of benefit because DLRN was on “quite a lot” of medications at the time. He said that he was placed on Endep, which was “taking care of a lot of my back spasms and back pain”. He said that Dr M had initially prescribed Endone, but took DLRN off it (in about late 2016/ early 2017), because it was sedating and causing him constipation.
The Secretary’s representative took DLRN to [21] and [22] of the AAT1 decision which described the evidence given at the hearing before the AAT1 about how his back condition had affected his capacity to engage in certain activity as follows:[39]
[21][DLRN] told the Tribunal that he lives by himself and his movements are restricted. He is unable to lift much and is constantly exhausted by pain. He is only able to do light housework only and he has a friend who comes once a week to do such things such as vacuuming and mopping.
[22]When asked if he is able to lift his arms about his head, [DLRN] said he could only lift the right arm as he has an injury to his left shoulder which occurred in 2008 after a motor bike accident which damaged a ligament. [DLRN] said he is able to turn his head to look over his shoulder and is able to bend forward to pick up a light object placed at knee height. He also said he needs to use the arms of a chair to lift himself up from a sitting position.
[39] Refer T-Documents T2/6.
DLRN confirmed that this information was correct. DLRN said the left shoulder injury in 2008 had improved by itself, after “a course of anti-inflammatories and Dencorub”. He said his shoulder “came back to normal and is not ongoing”. DLRN accepted that as at the Qualification Period, his left shoulder condition was not a permanent condition.
DLRN was taken to the descriptors in Table 4 – Spinal Function of the Impairment Tables relevant to 10 points.[40] He was asked by the Secretary’s representative whether he was able to sit in or drive a car for at least 30 minutes during the Qualification Period. He said he was “only very rarely” able to do so due to the back condition and the mental health condition. He said he did not drive a car due to the sedation caused by the medications that he was on. He confirmed the medication was relevant to both the mental health and spinal conditions.
[40] Refer T-Documents ST1/183-184.
DLRN confirmed that he had renewed his driver’s licence in November 2017. The Tribunal asked DLRN if he could explain why he had renewed his driver’s licence given his evidence to the Tribunal that he did not drive. DLRN explained that he renewed it in hope that he would be able to drive again and also for identification purposes (otherwise, he said he would only have his birth certificate for identification purposes).
DLRN confirmed that he owned a car. DLRN explained that the purpose of him owning a car, despite not having driven for the last two years, was that “a relative” visits him once a fortnight to go to the shops and pay his bills and they did not have a car, so they would drive his car. When asked who his relative was, he said it was his nephew and he also gave the name of another friend who would visit. He said his nephew had a car, but his friend did not. He said that because “they are going for his purposes” he lets them drive his car.
DLRN said the shops are about 10 to 15 minute drive from his house. He said he used a lumbar support cushion that he placed in the car. He said they drove the car to the supermarket and the post office, so that DLRN could pay his bills and rent.
DLRN confirmed that at the time of the Qualification Period he was able to sit in a car for at least a 30-minute period. He said the problem with him driving the car was due to the sedative effects of the medications he was on. He confirmed it was not the mechanical difficulty which had affected his ability to drive.
DLRN confirmed he was not able to sustain overhead activities due to his back pain and, when he looked upwards, he would get dizzy from the medications. He confirmed that during the Qualification Period, if he did not have to look up, he was able to reach up and get something from above.
During the Qualification Period, DLRN said he was able to turn his head to look over his shoulder regularly and repetitively. He said he was able bend over to pick up a light object from knee height, but it was difficult for him to bend lower than knee height and could not do so.
DLRN said he needed assistance to get out of a chair by using the arms of the chair. He said his relative or friend would give him a hand to help him get out of the car. He said he could get into the car independently by using the main frame of the car.
DLRN said when he ate his meals; he would have to stand up and down periodically to take the weight off the base of his spine. He said he had done the same thing throughout the hearing before this Tribunal. DLRN said he was able to pick up a coffee cup off a table.
During the Qualification Period, he said he was living on his own. DLRN confirmed he now lives with his friend “out of fear of his safety”. He said that his friend was unemployed and he took DLRN to his appointments with his GP and psychologist.
DLRN said when he moved house (which he has done three times since the incident) that removalists had packed up his house and moved for him.
DLRN confirmed that he had two small dogs. When asked whether he walked his dogs, DLRN said he had a large back yard. DLRN said his dogs were groomed by a groomer. DLRN said he did not pick up his dogs. He said the dogs have their own chair.
Mental health conditions
DLRN confirmed that Dr E had diagnosed him with bipolar disorder in 2011. DLRN said it commenced around 2000. DLRN said that Dr M had diagnosed PTSD, consequent upon the Incident.
DLRN was taken to a patient health summary as at 18 May 2017 and asked to identify the medications he had taken during the Qualification Period for his mental health condition. He said he was taking Epilim, Endep (for the pain and depressive disorder), Mogadon, and Valium (to help with PTSD). DLRN said he was presently (at the time of the hearing before this Tribunal) taking Mogadon, Valium, and he had commenced on Risperidone “last Friday” as prescribed by his psychiatrist, Dr A.
DLRN confirmed that he had attended three sessions with Dr H consequent upon the PTSD from the Incident. He confirmed that between August 2015 and October 2016 he did not consult any other psychologists or psychiatrists. He said he was constantly seeing his GP for treatment. He said that prior to the Incident, he had not seen anyone except in early 2000, when he “going through my back issue”, he saw a number of physicians through his workcover claim. DLRN added that, prior to that, he was admitted to Hospital F for depression in 2001.
DLRN confirmed that he saw Ms F during the period 20 April 2017 to 28 September 2017. He said he was still seeing Ms F on a fortnightly basis together with Dr A. He said they were helping him with the nightmares and flashbacks, and were “trying the new medications to see if it can help me to sleep better”. He said they were also focusing on his nutrition, because it is hard for him to eat because he would vomit a lot due to an association with the Incident.
DLRN confirmed that he saw Dr A for the first time on 3 July 2018, and that he had seen him once. He said he was referred to him by the mental health team at the hospital. He said he was taken into hospital because he was having suicidal thoughts. This took place at the time DLRN’s application was previous listed for a hearing before this Tribunal. Upon receiving news that DLRN had been admitted into hospital, the Tribunal adjourned the hearing.
DLRN said his GP and Ms F had referred him to go to the hospital at this time to be placed in the care of the mental health team and then he was referred to see Dr A as an outpatient.
DLRN said he was due to see a new psychiatrist, Dr D, on 20 August 2018. He said Dr D was taking over from Dr A.
DLRN confirmed that he had not consulted any other psychiatrists. He said that Dr A was the first psychiatrist he had seen because he was told, in effect, that it would not be enough (for DSP qualification purposes) for him to see a psychologist and that he would have consult with a doctor of psychiatry. DLRN explained that about this point, he started to get suicidal thoughts because “it has impacted my life so much and I just wanted to give up”. He also told the Tribunal:
I didn’t want to live through it again and constantly talk about what happened. That’s when they placed me under the care and the case management team from [name omitted] mental health care who are in constant contact with me checking on my health.
DLRN was asked why he had not consulted a psychiatrist between October 2016 and July 2018. DLRN responded as follows:
I am not sure why my GP or psychologist hadn’t referred me to a psychiatrist. At that time I was secluding myself to the home and hiding and living in fear of my life. I wasn’t going out much at all. I have no reason. I was going on the advice of the sessions with psychologists, which were helping and the support of my GP.
Later on in the hearing, DLRN was asked why there had been a break in the consultations with his treating psychologist between September 2017 and April 2018. He responded as follows:
Yes because I was only given 11 sessions by the Medicare scheme and after that we receive payment for ongoing sessions. Then permitted to have another 11 sessions. Only permitted to limited sessions. Not financially able to do it in a private way.
DLRN told the Tribunal that Medical Clinic X was about a 10 or 15 minutes’ drive from his home. He said his friend accompanied him to those appointments. He was not ever referred by his GP or psychologist (to a psychiatrist) and that going out into the public was “making him very afraid”.
DLRN confirmed his father passed away in February 2017; his mother passed away eight weeks later about April 2017 and he experienced a relationship breakdown (with his then partner) in late-February 2017.
DLRN confirmed that the following information in the AAT1 decision was correct as at the Qualification Period:
[33] He is very frightened to leave the house and fears for his life. If he has to leave the house, he will usually ask his nephew of a family friend to accompany him…
Not in contact with his family, generally it is not safe. He relies on a couple of friends who contact him once a week. He has no social life.
[34] …incontinence… cries frequently …difficulty focussing or planning anything
DLRN was asked how he managed with “self care and independent living” and whether he was able to bathe, dress and feed himself as at the Qualification Period. DLRN told the Tribunal:
At that time I wasn’t eating, my diet wasn’t good. At times I was too afraid to be in confined areas. I wasn’t showering appropriately unless someone was in the home.
DLRN explained that he was too afraid to be in the shower because someone could be in the house without him knowing about it while he was in shower.
DLRN said he was consuming Sustagen, Up & Go drinks, and dietary drinks “to keep himself alive”. He said he was able to mix them up himself.
DLRN said that at night, he had experienced “severe insomnia” and was only getting a few hours’ sleep during daylight hours. He said with the aid of the sleeping pill, Mogadon, he would get about three or four hours’ sleep per day. He said that once he woke up he would suffer from nightmares and flash backs.
DLRN explained that during the Qualification Period, he needed to be visited by others once a week to keep him company and to help him clean the house. He said at that time it was a neighbour and a family friend. He said he did a little bit of housework, including wiping the bench and doing some dishes. He said the Incident was “just reoccurring in mind all the time”.
DLRN said the Police were calling in to see him during the week, and at night time, to help him feel reassured. He said he was under “police protection”. He confirmed he had given evidence in a criminal proceeding in relation to the Incident. He said during the Incident, his life and his family’s lives were threatened and that the perpetrators had his identification. DLRN said at the time he was unable to see his parents because he was worried they would follow him to their house. He said he was unable to attend the funeral service of both of his parents due to threats he had received.
DLRN explained that he has a number of siblings but the last time he had spoken to any of them was in about 2003/2004. DLRN said the only remaining family member he was in contact with was his nephew. During the Qualification Period he said he was also in contact with his friend by telephone, as he lived in a different place at that time.
When asked whether DLRN had many friends during the Qualification Period, he said he had built a “professional friendship” with the Detective who had handled the case arising from the Incident. DLRN said he would call in and let them know how he was going and to get some reassurance. He said he had a neighbour at one of his previous houses and another family friend he was in touch with. He said there were no other persons helping him because, “I didn’t want them to get hurt either”.
DLRN told the Tribunal that he previously had a Facebook account since about 2012 in his own name, which he did not use much at all. He said the he closed and blocked this account in about late-2017.
Social/recreational activities and travel
DLRN told the Tribunal that, during the Qualification Period, he did not venture much outside the home. He explained that a Sherriff had attended his home about an outstanding fine and when she saw the locks on his door, had commented that he was living like a prisoner in his own home. He said that he went out on a fortnightly basis, to attend the local shops, supermarket and post office. He said he only took his dogs into the backyard and did not remember taking them on a walk on the beach; although he said he could not remember and that he may have.
DLRN confirmed that he attended the local GP fortnightly and attended the counselling sessions with Ms F but they were limited in number due to Medicare.
In the period “October 16/November 2017”, DLRN said occasionally he went to the local swim centre which was about 20 minutes from his home at the time. He said he only went, “a few times with an old friend”. He said he went about four times in total as this friend was trying to get him out of the house. He said he was no longer friends with this person.
DLRN said he did not do any other exercise. He said he was not leaving the house as he was afraid that he would be “seen by these people”. DLRN said he had cut his own hair for a while and only had his hair cut twice at the shopping centre since the Incident.
DLRN said during the Qualification Period (and presently) he preferred to do crosswords and to read, than watch television, as there was “too much bad news and constant crime” on the television which would set his memory off.
When asked what DLRN did with his spare time, he said he did crosswords or watched television or a DVD “that didn’t involve crime related incidents”. He said he would write a bit of poetry and keep a diary on his thoughts. He said he was attempting to eat.
DLRN said he spent time reading, mainly biographies of people who have been through trauma to try to help him deal with his incident. During October 2016 to early 2017, DLRN said he would read for “maybe 20 minutes at a time” and that they were mainly self-help books. He said he did not read material online, “only books at home”.
DLRN said other activities he was involved included planting some seeds to grow some plants and that he had someone there who could put them out where he wanted them. He said he had locks on his gate. He said the body corporate looked after the garden where he lived (i.e. to do the nature strip and the weeding) and that there were no lawns.
Interpersonal relationships
DLRN was asked about his interpersonal relationships. He told the Tribunal that he had “serious trust issues and this played on [his] mind”. He said he had issues meeting new people and going out into the public. He said that when he went to the supermarket or post office he would go to the same place all the time, so he can see the same faces. He said he gets along with them quite well. He said he pays his bills and they ask how he is going and “that is it”. He said he goes to where he felt comfortable and where he knew the owners of the shop.
DLRN said he does not lose his temper in traffic or at the shopping centre but that he got very anxious and liked to return home as soon as he could. He explained that his friend, who he had identified at the hearing, was an old high school friend that he had gotten back in touch with to start a friendship circle with people he knew, instead of meeting new people.
DLRN said he would like to make trips away but he did not. He confirmed that as at the Qualification Period he did not make any trips unless it was a short trip down to the waterfront. He said he did not want to be far away from his home.
Concentration and task completion
DLRN was asked whether he had any difficulty concentrating for 20 minutes without a break when he was doing crosswords and reading. He said he needed his reading glasses and “after a little bit my concentration gets blurred at times”. He said he would get a flashback from the Incident and then he would continue reading. He said he did crosswords “maybe once or twice a week” and that it would take him a number of days to complete one crossword.
DLRN told the Tribunal that when he chatted to his friends, he would do so for about half hour, “until I could settle myself”.
DLRN confirmed that during the Qualification Period he had lived in a rental property. He said he signed the lease for that property “by a property manager”. He said he had read and signed the lease and he was the only person on the lease. When asked whether he had any difficulties undertaking that task, DLRN said that they allowed him a couple of days to sign it and post it back to them. He said he had signed the leases in relation to the other rental properties.
DLRN confirmed that he had paid his own bills during the Qualification Period. He said he paid some over the telephone with his credit card because he did not want his services cut off. He said he does not pay them by telephone anymore and did so at the post office to “help myself to get out more rather than being secluded in my home. I try to help myself as much as I can with that.”
Behaviour, planning and decision making
DLRN told the Tribunal that from October 2016 to January 2017 he had nightmares and flashbacks “nearly every night and every day”. He told the Tribunal:
It’s never left my mind until this day. It never leaves your mind. The smells. It’s just the memory of the incident has never left. I have flashback every day. I wet the bed. I wet the bed a lot because I am too scared at night to get up to go to the toilet. When I do go down the street I wear a continence pad because I’m too afraid to go into the public toilet.
DLRN said he was concerned about going to a public toilet for this reason:
You are out of the public eye and you’re in a confined space. Perhaps someone could come in and hurt me without anyone seeing it.
DLRN said he would go to a shopping centre for approximately half an hour and would wear incontinence pads just for precautions.
Work/training capacity
DLRN confirmed that he had not worked since 2003 since the injury to his spine. He said that he injured his spine two years into his career and that the he (formally) ceased his employment with this company in 2015.
He said that as at Qualification Period, it was mainly his mental health that had prevented him from working. He said the Incident had really set him back; he had not been able to do anything since.
DLRN said he had made some efforts to return work. In reference to the first half of 2015, DLRN said he applied for work “on computer or by newspaper or walk into places to see if there was work going”. DLRN said that “other employers were reluctant to employ me because of my back condition and they rated me as a risk”.
DLRN said he attend Employment Service Provider A (ESP A) and was issued with a case worker, and then Centrelink made a decision that he could stop going there. He said he had been attending ESP A until his appointment there “last week”. He said he did not need to go there “until next year”. He said they exempted him because of the Incident and his current medical situation.
DLRN confirmed that as from 28 January 2017, he had been engaging in a program of support and had been attending appointments. He said ESP A had attempted to get him into an educational course. He said he was supplying medical certificates to them. And he had arranged so he would not have to go back, “due to ongoing treatment and ongoing PTSD”.
DLRN confirmed that during the 15 to 16 months that he had been on the program of support he had been placed on waiting list to commence a Certificate IV in Mental Health because it was considered that this might have been of use to him to complete such a course. He said it may have helped him to work in the community, and that he had a protective side and liked to assist people.
When asked whether he considered he would be able to do this type of work, DLRN responded:
Not at the moment, no. I agreed with the lady at Centrelink I wasn’t really ready to start something like that. They postponed the commencement date. There was not enough interest. [They] kept putting it off. [I was] disappointed. Set back. I have deteriorated again since then.
DLRN confirmed that ESP A had helped him to put together a resume. Otherwise, he said that they discussed with him his symptoms and was helping him “to get into the right headspace” to begin the course.
DLRN said during October 2016 and January 2017, his memory was not very good and that it was hard for him to remember things. He said he was in “constant fear of life” and that was all he was focussed on. He said he was worried that he would be hurt or his family would be hurt.
DLRN confirmed that he watched AFL football games on television. He said he would have to get up from time to time because he could not remain seated for duration of game and that he went to the toilet a lot because of the medication for his diabetes and because he had to keep his fluids up. He said he used to have the sound down on the television so no one would know he was home, but this was a lot better since he had moved to the new residence.
DLRN was asked about the references in the medical reports to him having used Cannabis. He told the Tribunal:
I just attempted to use it to get myself some sleep. I didn’t want it to become a problem so I was honest with [Ms F] and my GP. I would try not to rely on it any longer. I commenced in late 2016 and only used it now and then, once I started having more flashbacks and nightmares.
DLRN said he did not use Cannabis every day and would only use it to get some rest. He said when it was making him sick, that he “wanted to be honest with the medical team. I realised it wasn’t going to do me any health wise. I made them a promise I wouldn’t go down that path again”.
DLRN was asked whether he had used Cannabis any earlier than in late-2016. He said he had used it when he was “a lot younger, if I went to a party”, which he said was not often. He told the Tribunal he was not a constant user or an addict.
DLRN was taken to a reference made by Dr N on a medical certificate issued in 1999 stating that DLRN was unfit to work for a period of about one month from 3 May 1999 to 3 June 1999 for a “temporary” condition of “drug dependence”.[41] The Tribunal enquired of DLRN whether he had any dependence on drugs that may impair his capacity for work. DLRN responded:
In 1999 it was only a temporary recreational usage. It wasn’t a permanent problem.
…
It wasn’t often. I made my medical team aware I was going to use it again to help me sleep.
I was admitted to [name omitted] psychiatric unit. I was not able to cope with the death of a family member who I was close to. I would have been a very bad way in that period.
[41] Refer T-Documents T26/163. See also T26/164 certifying DLRN for an earlier period from 20 to 26 April 1999 for the same reason being a “temporary” condition of “drug dependence”.
DLRN was asked whether he had continued to use Cannabis to which he said:
Trying my best not to go down that path. Wouldn’t do my health any good to be on that drug now. It was making me sick anyway. I didn’t want to go down that path of using a drug of dependence.
DLRN said he did not agree with the opinion provided by the JCA assessor that he was capable of working 15 hours per week doing “light, unskilled work” as at the Qualification Period. When asked why he disagreed with this opinion, DLRN said it was because of he has been fearful of his life since the Incident, because the perpetrators all live in the same area. He said this was the reason why he had moved house so much and why he was going to complete a certificate. He said this is the reason why he was given a further exemption.
DLRN stated that the reason why he had not moved further away or interstate was that he could not afford it due to the cost of removalists. He said at the moment, his financial situation was “bad” and he was considering selling his vehicle and relying on the Salvation Army for his food vouchers. Subsequently, he said he could move away but the perpetrators could still turn up. DLRN also said he had to “be around to attend court proceedings” and also because he has a lot of trust in his medical team. He explained that, “with my trust issues it is better that I stay with my same medical team and they know me”.
DLRN told the Tribunal that he has used a walking stick on and off since his spinal surgery in 2004. He said he used a single forearm crutch when going to the shops and a normal walking stick around the home. He confirmed that he used them each time he mobilised. He said he used a shower chair in the shower. DLRN said when he started to experience falls, his GP had told him to keep the walking stick with him “just in case”. He said that since the last fall, he is afraid he is going to do more damage to his spine and his medical team considered that he should keep the walking stick with him permanently.
At the conclusion of the hearing, this Tribunal made a direction the effect of which was to provide DLRN with a further opportunity to obtain supporting medical evidence, particularly in relation to his hospital admissions, and to provide it to the Secretary and the Tribunal. The Tribunal also provided the Secretary with an opportunity to make any further written submissions to any further evidence that might be filed by DLRN after the hearing.
Further evidentiary documents were received from DLRN after the hearing. Subsequently, this Tribunal was informed by the Secretary’s representatives that it did not propose to make any further submissions about those documents at which time the Tribunal reserved its decision.
The Secretary’s Contentions
At the hearing, the Secretary’s representative made the following contentions in relation to the “relevant conditions” DLRN said the Tribunal should take into account to assess his qualification for the DSP.
Back condition
The Secretary contended that as at the Qualification Period, DLRN’s back condition was fully diagnosed, but not fully treated and not fully stabilised. For this reason, the Secretary contended that no impairment rating should be assigned. In closing, the Secretary contended that in light of DLRN’s evidence the Tribunal would be “hard pressed” to assign a rating of 10 points for this condition.
In relation to medical corroboration of the degree of impairment of DLRN’s spinal function, the Secretary referred the Tribunal to the Secretary’s Submissions and Dr M’s letter dated 3 February 2018 (set out at page [34]) where Dr M stated that DLRN had, “back pain-constant ache, radiates to left lower limb, some weekness(sic). Back pain causing moderate to severe functional impact on activities involving spinal function.”
The Secretary contended that by reference to Table 4 of the Impairment Tables, 10 points is to be assigned for a moderate impairment and 20 points for a severe impairment. The Secretary contended that s 11(1)(c) of the rules relating to the Impairment Tables required that if the level of impairment falls between two ratings, then the lower rating is to be assigned and this would mean that 10 points would have to be assigned to DLRN under Table 4. Further, the Secretary also contended that Dr M’s reference to a range for which the higher end was “severe” did not accord with DLRN’s evidence, which the Secretary contended was more consistent with 5 points, with the maximum being 10 points.
Mental health condition(s)
The Secretary noted that DLRN’s mental health condition was initially described as bipolar disorder and subsequently, as PTSD. The Secretary accepted that DLRN’s mental health condition was fully diagnosed, in light of Dr A’s letter forming Exhibit “A2”, but it was not fully treated or fully stabilised as at the Qualification Period.
The Secretary highlighted that the treatment for DLRN’s mental health condition only commenced contemporaneously with the Qualification Period when Dr H commenced treating him on 24 October 2016, succeeded by Ms F’s treatment which commenced on 20 April 2017. In terms of treatment by a psychiatrist, DLRN was first treated by Dr A on 3 July 2018 and that he had not otherwise consulted a psychiatrist since the early-2000’s.
The Secretary contended that in relation to 94(1)(b) of the Act, the applicable impairment rating arising from DLRN’s mental health condition was zero. The Secretary contended that if the Tribunal accepts this submission, DLRN’s application cannot succeed.
Other conditions, not claimed by DLRN
The Secretary contended that DLRN’s previously claimed left knee condition was not fully diagnosed, treated and stabilised and that his diabetes was fully diagnosed, treated and stabilised, but a zero impairment rating should be assigned.
“Program of support” requirement
The Secretary also contended that in relation to the remaining issue concerning the “program of support” requirement, DLRN did not participate in a program of support during the relevant three year period prior to the date of making his DSP claim.[42] The Secretary contended that follows that DLRN must establish an impairment rating of 20 points under a single table.
[42] Refer T-Documents T27/175-179.
Continuing inability to work requirement
The Secretary contended that even if DLRN satisfied the “program of support” requirement, there was a further remaining issue as to whether DLRN had a “continuing inability to work”. The Secretary contended that this would depend on which conditions the Tribunal considered were relevant for the assessment of work capacity. The Secretary contended there were no such conditions that could be considered relevant as neither of DLRN’s back condition or mental health condition was “permanent”. For those reasons, the Secretary contended that DLRN could not cannot satisfy the requirements of s 94(1)(c) of the Act.
The Secretary contended that if the Tribunal found that the back or mental health condition were “rateable”, Dr M’s opinion that DLRN was unable to do any work due to his ongoing back issues had not dealt with whether he had a capacity to undertake training. The Secretary invited the Tribunal to attach greater weight to opinion of JCA assessor - who assessed DLRN as having a capacity to work more than 15 hours per week in a “light less skilled” position - on the basis that the assessor “has more expertise in assessment of work capacity and could be seen to be more independent than [Dr M] who would do his best to support the applicant”. The Secretary said that even though the JCA assessor was a physiotherapist (and DLRN’s conditions were both physical, and psychological) that the assessor was “using his expertise with assessing what jobs would be suitable having regard to conditions disclosed by the medical evidence” and that the medical evidence should “take a backward seat in terms of assessing work capacity”.
CONSIDERATION
In taking into account the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (Harris) at paragraph [1][43]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[43] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Is the first requirement under s 94(1)(a) of the Act met?
Section 94(1)(a) of the Act requires the Tribunal to determine whether as at the time of the Qualification Period, DLRN had a physical, intellectual or psychiatric impairment. Impairment is defined by s 3 of the Determination – see paragraph [13].
Both parties agreed that this requirement was met by DLRN. The Tribunal is satisfied on the medical evidence that the requirement under s 94(1)(a) of the Act is met because DLRN’s medical conditions resulted in a loss of functional capacity, affecting his ability to work.
Is the second requirement under s 94(1)(b) of the Act met?
The second requirement that DLRN must meet is that his impairment(s) must attract a rating of 20 points or more, as assessed under one or more of the Impairment Tables. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is “permanent” and the impairment resulting from that condition is more likely than not, in light of available evidence, to persist for more than two years. Under s 6(4) of the Determination, a condition is considered to be “permanent” if it was fully diagnosed, treated and stabilised and more likely than not to persist for more than two years as at the time of the Qualification Period.
Claimed Condition No.1 - PTSD
DLRN contended the main condition which affected him was PTSD.
The Tribunal finds that as at the Qualification Period DLRN’s claimed condition of PTSD was fully diagnosed on the basis of Dr H’s Initial Report. Dr H confirmed in this report that she had first assessed DLRN on 24 October 2016 which is the first day of the Assessment Period. Dr H confirmed that DLRN had presented with PTSD. The Tribunal notes that Dr H is a clinical psychologist which satisfies the second bullet point in the Introduction to Table 5 of the Impairment Tables.
In this particular case, there is little doubt that DLRN has suffered from PTSD since the time of the Incident. However, the contentions raised by the Secretary that DLRN’s PTSD was not fully treated or fully stabilised as at the Qualification Period are compelling.
After the Incident, DLRN was very fearful of leaving his home and being seen by the perpetrators. Nevertheless, he attended his general practitioner at the time, Dr E and then Dr J and then Dr M, and continued under the general care of those doctors. The Tribunal accepts DLRN’s evidence that, during the Qualification Period, he took medication to assist him with his mental health conditions, including Valium (specifically intended to help with the PTSD) and also Epilim, Endep and Mogadon.
However, DLRN did not see a psychologist or psychiatrist until he first attended a clinical psychologist, Dr H on 24 October 2016. This was over a year after the Incident and importantly, it only commenced contemporaneously with the commencement of the Qualification Period (being on the first day of this period). The Tribunal notes that DLRN’s consultations with Dr H continued for a further two sessions and Dr H indicated that DLRN’s mental health had deteriorated over “the past two months” which, given her report was dated early-May 2017, was in about March and April 2017 and notably, was after the end of the Qualification Period.
Further DLRN did not start seeing a treating psychologist until he commenced seeing Ms F on 20 April 2017 (being three months after the end of the Qualification Period). The Tribunal notes that he continued to see Ms F for counselling sessions intended to “address PTSD” and issues relating the Incident. At the end of eight sessions with Ms F from spanning the period 20 April 2017 to 27 July 2017, Ms F made a recommendation that DLRN receive ongoing counselling – see paragraph [42]. After 27 July 2017, there was a break in the counselling sessions with Ms F until 5 April 2018 when DLRN “re-engaged” with Ms F for further counselling.
The Tribunal considers that, as he stands now, DLRN is likely to have an indefinite ongoing need for medication, counselling by a psychologist and overall management of his condition by a psychiatrist, as assisted by his treating general practitioner. This is likely to be the case even when his condition of PTSD reaches a state where it could be characterised as fully treated and fully stabilised.
However, the Tribunal is required to assess DLRN’s position as it was at the time of the Qualification Period. As that time, DLRN had only commenced receiving specialist assistance for his serious mental health condition. On this basis the Tribunal finds that DLRN’s PTSD was not fully treated as at the Qualification Period.
The Tribunal also notes that in at least the six months to follow the commencement of the Qualification Period, DLRN’s mental health was stated by Dr H in May 2017 to have deteriorated. From May 2017 until the present time, there have been times when his condition appears to have deteriorated resulting in his admission to a hospital in June 2018 for instance, and other times where there were indicators that his position was slightly improved, for instance, his increasing (albeit very gradual) confidence to leave his home and his more recent increasing level of comfort in having the volume of his television increased since he had been in his more recent home (and felt a little safer there). Given those up’s and down’s and based on Dr H’s opinion that DLRN’s mental health was still changing (i.e. deteriorating as at May 2017 and improving at various times), the Tribunal finds that his PTSD was not fully stabilised as at the Qualification Period.
Accordingly, the Tribunal is not satisfied that DLRN’s PTSD was a “permanent condition” as at the time of the Qualification Period. For this reason, no impairment rating is able to assigned to DLRN in respect of his PTSD for the purpose of assessing his DSP claim, which is the subject of this application.
Spinal condition
The Secretary has conceded that DLRN’s spinal condition is fully diagnosed. The diagnosis of this spinal condition provided by Dr M as recorded in his letter dated
16 November 2016 (see paragraph [31]) as a “low back injury” requiring “L5-S1 spinal decompression” and spinal fusion. The Tribunal finds that DLRN’s spinal condition is fully diagnosed.The Secretary contends that DLRN’s spinal condition is not fully treated or fully stabilised. The Tribunal does not accept this contention. DLRN has suffered from this condition for over two decades. He underwent significant spinal surgery in 2004 to seek to improve this condition or to assist to manage the symptoms. Despite the absence of corroborating evidence, the Tribunal accepts that he has been reviewed by orthopaedic surgeons as a follow up to that surgery. The Tribunal accepts DLRN’s evidence at the hearing that the specialists had not recommended that he undergo further surgery as it may present a risk of incapacitating him further. The Tribunal notes that DLRN has remained fully compliant with the medication regime as prescribed to him by his general practitioners to help manage the pain symptoms that have arisen. The medication regime has been in place for over two decades.
The Tribunal acknowledges that more recently recommendations were made by medical practitioners for DLRN to have cortisone injections into his hip as a result of the recent falls he had experienced. However, this does not detract from the Tribunal being satisfied, upon consideration of the totality of the medical evidence in relation to DLRN’s spinal condition and the treatment for it, that as at the Qualification Period DLRN’s spinal condition was fully treated and fully stabilised.
For this reason, the Tribunal finds that DLRN’s spinal condition was a “permanent” condition and that DLRN can be assigned an impairment rating under the Impairment Tables. The relevant impairment table is Table 4.
Firstly, it is clear that DLRN’s spinal condition had an impact on his activities involving spinal function during the Qualification Period which means that a zero point rating under the first row of Table 4 does not apply.
Secondly, the Tribunal is satisfied that descriptor in subparagraph (1)(a) of the row applicable to a five-point rating applies to DLRN because he had difficulty in activities over his head requiring DLRN to look upwards due to the medications he was required to take to assist him to manage the pain for his spinal condition – see paragraph [70]. Accordingly, the Tribunal considers that DLRN met the threshold to be considered as having at least a mild functional impact involving spinal function.
Thirdly, the Tribunal has considered whether the descriptors in the row applicable for a 10-point rating applied to DLRN as at the Qualification Period. The Tribunal finds that the first specified mandatory criteria applied to DLRN in that that he was able to sit in a car for at least 30 minutes. DLRN confirmed at the hearing that he was able to do so – see paragraph [69]. However, the Tribunal is not satisfied that any one of the criteria set out in subparagraphs (1)(a), (b), (c) or (d) applied to DLRN as at the Qualification Period. At least one of them must apply to DLRN in order for the Tribunal to be satisfied that his spinal condition had a moderate impact and should attract a higher rating of 10 points.
Specifically, the Tribunal finds on the evidence that DLRN was able to reach items from overhead (provided he was not required to look up, because this would make him dizzy); he did not experience difficulty moving his head to look in all directions; he was able to bend forward to pick up a light object placed at knee height and he did not need assistance to get up out of chair (other than using the chair of the arm).
Consequently, the Tribunal finds that DLRN had a mild functional impact to his spinal function arising from his spinal condition and assigns five points for this impairment under Table 4, because the descriptors applicable to a moderate functional impact did not apply to DLRN.
CONCLUSION
In conclusion, the Tribunal has found that, as at the time of the Qualification Period, only one of DLRN’s claimed conditions were “permanent”, namely, the impairment to his spinal function for which the Tribunal has found that he had a mild impairment for which the Tribunal has assigned five points under Table 4.
For this reason, in respect of the claim which is the subject of the application before this Tribunal, DLRN has not satisfied the second mandatory eligibility requirement under s 94(1)(b) of the Act being that his impairment(s) must attract 20 impairment points or more under any one or more of the Impairment Tables.
This means that is not necessary for the Tribunal to consider whether DLRN has met the third mandatory eligibility requirement under s 94(1)(c) of the Act, namely, whether he had a continuing inability to work as at the time of the Qualification Period.
Accordingly, the Tribunal affirms the decision of the AAT1. This means that DLRN was not eligible to receive the DSP as from the date of his claim on 24 October 2016.
The Tribunal also makes the following observations for the benefit of DLRN; particularly given he was self-represented in relation to this application.
(a)DLRN is entitled to lodge a new DSP claim if he wishes to be reassessed for his eligibility to receive the DSP; and
(b)in the event that DLRN makes a future claim for the DSP, he should consider the provisions of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination). In particular, DLRN should note that unless one of the exceptions set out in s 7(2), (3), (4) or (5) of the POS Determination applies to him, he is required to participate in a program of support for an aggregate period of at least 18 months in the three-year period preceding the date on which he makes any new claim for the DSP. Importantly, DLRN should note s 8 of the POS Determination which provides as follows (emphasis added):
To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted as determining, for the purposes of section 7, the length of the period which the person has participated in the program.
I certify that the preceding 176 (one hundred and seventy six) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker
..........................[sgd].........................................
Associate
Dated: 16 July 2019
Date of hearing:
Date final evidence/submissions received:
26 July 2018
4 March 2019
Representative for the Applicant:
Self-represented
Representative for the Respondent: Mr Tim Noonan, Lawyer
Department of Human Services
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