Ehlers and Secretary, Department of Social Services (Social services second review)
[2016] AATA 112
•26 February 2016
Ehlers and Secretary, Department of Social Services (Social services second review) [2016] AATA 112 (26 February 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3145
Re
Darren Ehlers
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President Dr C Kendall
Brigadier AG Warner, Member
Mr W. Evans, MemberDate 26 February 2016 Place Perth The Tribunal affirms the decision under review.
...(Sgd) Dr C Kendall.........................
Deputy President Dr C Kendall
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant’s impairments were fully diagnosed, fully treated and fully stabilised – whether applicant’s impairments attract 20 points under the Impairment Tables- whether applicant participated in a program of support for at least 18 months in the 3 years prior to his claim – continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 – ss 94(1)(a) – 94(1)(b) – 94(1)(c) – 94(2) – 94(3)(b) – 94(5)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – ss 6(3) – 6(4) – 6(5) – 6(6) – 6(7) – 11(1)(c) - Table 4 – Table 5
REASONS FOR DECISION
Deputy President Dr C Kendall
Brigadier AG Warner, Member
Mr W. Evans, Member26 February 2016
BACKGROUND
Mr Ehlers was born on 19 February 1968.
Mr Ehlers contacted Centrelink about making a claim for Disability Support Pension (DSP) on 13 January 2015 [T7/47] and lodged his claim on 20 January 2015 [T8/48]. He identified his claim as being in respect of ‘depression, anxiety, panic attacks, insomnia’.
A (DSP) Medical Report completed by Dr Meyerkort on 20 January 2015 identified that Mr Ehlers was suffering from lumbar radiculopathy and anxiety/depression [T9/76].
On 2 February 2015 a Job Capacity Assessment (JCA) was undertaken by a registered psychologist with contributions from a registered occupational therapist [T10/87] and found that the lumbar radiculopathy condition was fully diagnosed but not fully treated or stabilised and that the anxiety/depression condition was not fully diagnosed, treated and stabilised. Accordingly, neither condition attracted impairment points. Mr Ehlers was found to have a temporary work capacity of 0-7 hours per week to allow for specialist intervention in respect of both conditions. His baseline work capacity was found to be 15-22 hours per week and it was found his capacity for work within 2 years with intervention was 23-29 hours per week.
On 3 February 2015, an employee of the Department of Human Services (Centrelink) advised Mr Ehlers that he was not qualified for the DSP because his impairments did not attract a rating of at least 20 points under the Impairment Tables [T11/92].
On 15 February 2015, a Centrelink Authorised Review Officer (ARO) affirmed the original decision and denied Mr Ehler’s claim for DSP [T14/96].
Mr Ehlers requested a Social Security Appeals Tribunal (SSAT) review of the Centrelink decision and subsequently a teleconference hearing was conducted on 4 June 2015. The SSAT affirmed the Centrelink decision in a decision posted on 12 June 2015 [T2/5].
Mr Ehlers lodged an application for review of the SSAT decision with the Administrative Appeals Tribunal (Tribunal) on 25 June 2015 [T1/3].
Mr Hawker represented the Respondent at the Tribunal hearing. Mr Ehlers, supported by his father Mr Ross Ehlers, participated by telephone.
INTRODUCTION
Mr Ehlers seeks review of a decision of the SSAT dated 4 June 2015 that affirmed a decision of the ARO dated 15 February 2015 to reject his claim for DSP.
It is common ground that Mr Ehlers had impairments within the meaning and for the purposes of section 94(1)(a) of the Social Security Act 1991 (the Act) in the Relevant Period, being Lumbar Radiculopathy, being a physical impairment and anxiety/depression, being a psychiatric impairment.
The Tribunal must consider whether these impairments had a combined rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination) pursuant to section 94(1)(b) of the Act; and if so, whether Mr Ehlers had a continuing inability to work pursuant to section 94(1)(c)(i) of the Act because of such impairment(s).
The Secretary, Department of Social Services (the Secretary) contends that the relevant period for consideration of Mr Ehlers’ qualification for DSP is, 20 January 2015 to 20 April 2015. The Tribunal agrees.
The Tribunal had before it the “T Documents” [T1-T2/1-74], Exhibits A1-A5 tendered by the Applicant, Exhibit R1 tendered by the Respondent, and the oral evidence of the Applicant and his father.
THE LEGISLATION
Impairment is of 20 points or more under the Impairment Tables- section 94(1)(b)
An impairment rating can only be allocated to an impairment, for the purposes of satisfying section 94(1)(b) of the Act, if:
(i) the condition causing the impairment is “permanent”; and
(ii) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years: see s6(3) of the Impairment Determination.
Section 6(4) of the Impairment Determination states that a condition is “permanent” if:
(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.
The phrases “fully diagnosed” and “fully treated” are defined in section 6(5) of the Impairment Determination as follows:
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;
(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. [Emphasis added]
The phrase “fully stabilised” is define in section 6(6) of the Impairment Determination as follows:
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. [Emphasis added]
The phrase “reasonable treatment” is defined for the purposes of section 6(6) of the Impairment Determination is section 6(7) of the Impairment Determination as follows:
Reasonable treatment
(7) For the purpose 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. [Emphasis added]
THE MEDICAL EVIDENCE
A good review of the medical evidence in this matter was provided by the Secretary in its Statement of Facts, Issues and Contentions dated 30 October 2015 [R1]. The Tribunal has reviewed the medical evidence before it and accepts the summary of this evidence provided by the Secretary, some of which is provided below.
Lumbar Radiculopathy
An MRI of the lumbar spine undertaken on 14 August 2010 noted multilevel lumbar disc degeneration with a disc protrusion at L5/S1 abutting the left S1 nerve root and ‘potential for symptomatic neural impingement’ at L4/5 as a result of a right extraforaminal disc protrusion abutting the extraforminal right L4 nerve root [T4/39].
Mr Paul Bannan, Neurosurgeon, provided a report to Dr Meyerkort on 12 October 2010 [filed in these proceedings] in which he confirmed a ‘definite focal disc protrusion hitting the right L4 nerve root at L4/5’. Mr Bannan noted that a nerve block had not provided the Applicant any significant relief. While surgery was a ‘last resort’ which was not recommended, Mr Bannan recommended review by a pain physician and a focal epidural at right L4.
An MRI of the lumbar spine undertaken on 12 October 2010 noted its similarity to that taken on 14 August 2010 [T5/41]. Mild lumbar spine degenerative changes were noted. There were endplate osteophytes or a very small disc protrusion in a right extraforaminal location, which approached and likely abutted the right L4 nerve root without displacement or decompression.
Mr Bannan provided a further report to Dr Meyerkort on 7 January 2011 [filed in these proceedings] noting the MRI confirmed a ‘very small far lateral disc protrusion without significant compression of the right L4 root’. He again advised against surgery and recommended he see Dr Holthouse.
A Functional Capacity Report dated 22 February 2011 for workers’ compensation purposes [filed in these proceedings] noted that it was difficult to predict the hours of work the Applicant’s back condition prevented him from undertaking due to the Applicant have self-limited and stopped his participation in 19 of the 21 testing tasks. Continuing physiotherapy and an exercise program were both recommended.
A JCA undertaken on 29 August 2013 by a registered occupational therapist noted the diagnosis of lumbar radiculopathy with a date of onset in 2010 secondary to a work related injury. It was noted that the applicant may benefit from a supervised exercise program to improve back strength and mobility [T6/43].
In the DSP Medical Report dated 20 January 2015 Dr Meyerkort diagnosed lumbar radiculopathy with a date of onset in 2011 [sic] the treatment of which is Naprosyn and Tramadol [T9/76]. It was noted that the Applicant had been referred to Dr Bannan, Neurosurgeon. The Applicant’s symptoms were described as ‘low back pain, stiffness more with heavy lifting [and] recurrent back bending’. The condition was expected to persist for more than 24 months with its impact on the Applicant’s ability to function expected to fluctuate in that time.
On 2 February 2015 the Applicant reported to the JCA that he was limited to walking 30 metres, standing for 5 minutes and sitting for 10 minutes [T10/88]. It was noted that the Applicant’s back condition had ‘deteriorated’. Evaluation/treatment with an orthopaedic or pain specialist was considered ‘prudent’.
Anxiety/Depression
The JCA dated 29 August 2013 [T6/42] noted a history of ‘Chronic anxiety and depression’ with a date of onset in 2000 and an exacerbation in February 2013. It was noted that the Applicant had trialled ‘various anti-depressants’, was under GP care and taking Xanax. It was noted that the Applicant may benefit from re-engagement with psychological counselling.
In his claim for DSP the Applicant referred to severe anxiety, dizziness, memory and speech problems, highs and lows and suicidal thoughts [T8/48].
Dr Meyerkort noted ‘anxiety/depression’ in his DSP Medical Report dated 20 January 2015 [T9/82]. He described the Applicant’s symptoms as ‘panic attacks, anxiety, dizziness, tired, low mood’. While it was noted that the ‘diagnosis was supported by further specialist opinion’, the specialist referred to was ‘GP Dr Meyerkort’ [T9/82]. The Applicant was reported as being unable to remember the name of his previous psychiatrist. The condition was described as likely to persist for more than 24 months with its impact on the Applicant’s ability to function likely to fluctuate in that period. The Applicant had been prescribed Valium.
The JCA of 2 February 2015 [T10/87] noted the Applicant had previously been prescribed Xanax and then underwent the Fresh Start program for an addiction to that condition. The Applicant was noted as being unable to ‘recall treatment by a psychiatrist as listed in MR’.
Mr Ehlers spoke in general terms about the symptoms and impact of the Lumbar Radiculopathy impairment but provided no further medical evidence to the Tribunal. Regarding the anxiety/depression impairment, Mr Ehlers told the Tribunal he recently attended Bentley Hospital with the intention of seeking an assessment by a psychiatrist or clinical psychiatrist. He advised that he did not proceed with an appointment because of the cost involved.
ANALYSIS
Table 4 - Spinal Function is the relevant table for consideration of Lumbar Radiculopathy.
The Introduction to Table 4 of the Impairment Tables requires corroborating evidence of the person’s impairment. The Secretary provides a detailed assessment of the requirement in the Statement of Facts, Issues and Contentions dated 30 October 2015 [R1], and the assessment is provided below:
The Secretary notes that the most recent radiological studies and specialist opinion was in 2010. While those investigations concluded the Applicant suffered from lumbar spine radiculopathy, he has reported a deterioration in his condition since that time.
Further, the limited specialist evidence from Mr Bannan and the limited comments from Dr Meyerkort in his report dated 20 January 2015 do not, in the Secretary’s contention, provide corroborative evidence of the Applicant’s impairment. Dr Meyerkort has indicated in his report of 20 January 2015 that the Applicant has been referred back to Mr Bannan. He has provided no evidence in the treatment recommended to the Applicant in 2011 including continued physiotherapy, an exercise program, consultation with a pain specialist and a focal epidural. As recently as February 2015 the JCA again recommended consultation with an orthopaedic or pain specialist in light of the reported deterioration of the Applicant’s condition.
In the absence of further or contrary evidence the Tribunal accepts the Secretary’s assessment. The Tribunal finds that the Lumbar Radiculopathy impairment was fully diagnosed, but during the relevant period not fully treated and fully stabilised. Accordingly, the Lumbar Radiculopathy cannot be assigned a rating under Table 4.
Table 5 - Mental Health Function is the relevant table for consideration of Anxiety/Depression.
In his report dated 20 January 2015 [T9/82] Dr Meyerkort (General Practitioner) described Mr Ehlers condition as Anxiety/Depression, and in reporting the impact of that condition, he stated:
“Poor concentration, low mood, panic attacks effects [sic] his ability to work, prone to emotional outbursts, can’t handle stressful situations.”
The Tribunal acknowledges the distress this impairment causes Mr Ehlers.
However, the introduction to Table 5 of the Impairment Tables contains the following mandatory requirement:
The diagnosis of the condition [i.e. the mental health 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.
There is no evidence that Mr Ehlers consulted a psychiatrist or clinical psychologist. As he has not had the required specialist diagnostic input with respect to his mental health requirement, the Tribunal finds that the anxiety/depression cannot be considered fully diagnosed, fully treated and fully stabilised and therefore it cannot be assigned a rating under Table 5.
It follows from the above that, in the Relevant Period, Mr Ehlers did not satisfy section 94(1)(b) of the Act, which requires that a person’s impairment(s) be assigned an impairment rating of 20 points or more. Consequently, the DSP claim must fail.
WHAT IMPAIRMENT RATING WOULD BE ASSIGNED HAD THE TRIBUNAL FOUND THAT MR EHLERS’ IMPAIRMENTS HAD BEEN FULLY DIAGNOSED, FULLY TREATED AND FULLY STABILISED?
Because the Tribunal finds that Mr Ehlers’ Lumbar Radiculopathy condition had been fully diagnosed but not fully treated and fully stabilised, and his anxiety/depression condition had not been fully diagnosed, fully treated and fully stabilised, his impairments could not be assigned ratings under the Impairment Tables. In these circumstances, the Tribunal is not required to determine what impairment rating would be assigned in relation to Mr Ehlers’ impairments.
Nonetheless, for the sake of completeness, the Tribunal makes the following observations in relation to the appropriate impairment rating had Mr Ehlers’ impairments been fully diagnosed, fully treated and fully stabilised.
It is not disputed that Table 4 of the Impairment Tables is the correct Table when a person has a condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
Pursuant to the Impairment Table Determination, a rating of 5,10 or 20 points on Table 4 can be allocated as follows:
5 There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to kneel level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to sides or upwards).
10 There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheel chair).
20 There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their 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 information before the Tribunal makes any attempt to assign a rating for Mr Ehlers’ Lumbar Radiculopathy difficult. However, a review of the medical evidence and the comments made to the Tribunal by Mr Ehlers and his father suggest a possible rating of 10 points. This rating is based on him satisfying the two descriptors:
a) the person is unable to sustain overhead activities (e.g. accessing items over head height): or
b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder).
The Tribunal did not see any evidence to suggest satisfaction of the descriptors for a severe functional impact on activities involving spinal functions and an assignment of 20 points.
It is not disputed that Table 5 of the Impairment Tables is the correct Table when a person has a permanent condition resulting in functional impairment due to a mental health condition.
Pursuant to the Impairment Table Determination, a rating of 5 or 10 points on Table 5 can be allocated as follows:
5 There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education and training.(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10 There is moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self care and independent living:
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends and sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) Behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) Work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
The absence of any medical evidence from a psychiatrist or clinical psychologist makes any attempt to assign a rating for Mr Ehlers’ Anxiety/Depression problematic. There is nothing in the evidence before the Tribunal to indicate that Mr Ehlers’ mental health condition would satisfy the requirements for a severe functional impact or an extreme functional impact on activities, and those sections of Table 5 have not been included here.
The limited medical evidence suggests that while Mr Ehlers met some of the descriptors of a 10 point impairment rating as at the Relevant Period, he may not have met all or most of such descriptors. However he appears to meet most of the descriptors of a 5 point impairment rating.
In this regard, the Tribunal was referred to section 11(1)(c) of the Impairment Tables Determination which provides:
… if an impairment is considered as falling between 2 Impairment Tables, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.
In the circumstances, and for this completion exercise, the Tribunal makes an assignment of 5 points.
If the Tribunal was to assign an impairment rating based on the functional impact of Mr Ehlers’ two conditions during the Relevant Period (such an assignment is not appropriate because Mr Ehlers’ spinal condition was not fully treated and stabilised and his mental health condition was not fully diagnosed, fully treated and fully stabilised), the impairment rating would be 10 points on Table 4 and 5 points on Table 5, resulting in a total of 15 points.
Accordingly, the Tribunal finds that Mr Ehlers does not satisfy the requirements of section 94(a)(b) of the Act.
CONTINUING INABILITY TO WORK
The Tribunal has found that Mr Ehlers’ impairments did not attract an impairment rating during the Relevant Period. It has also found that, even if Mr Ehlers’ impairments had been fully treated, fully diagnosed and fully stabilised, he would only receive an impairment rating of 15 points under Tables 4 and 5 of the Impairment Tables. This latter finding means that Mr Ehlers’ impairment would not be a “severe impairment”.
In the circumstances, it is not necessary for the Tribunal to determine whether Mr Ehlers’ has a continuing inability to work pursuant to section 94(1)(c) of the Act.
For the sake of completeness, however, the Tribunal makes the following observations.
If the Tribunal had been satisfied that Mr Ehlers’ condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period, and the resulting impairment attracted an impairment rating of at least 20 points under the Impairment Tables, then the Tribunal would also need to determine whether Mr Ehler had a “continuing inability to work” for the purposes of section 94(1)(c)(i) of the Act,
Section 94(2) of the Act defines a “continuing inability to work” as follows:
(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 impairments is not a severe impairment within the meaning of subsection (3B)- the person has actively participated in a program of support within the meaning of subsection (3C); 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.
In the ARO decision dated 15 February 2015, the ARO advised:
“You have actively participated in a program of support for at least 18 months within the 3 years prior to claiming Disability Support Pension…
and
… I have found that you meet the program of support requirements...” [T14/97-98]
A different assessment of the program of support requirement is presented in the Secretary’s Statement of Facts, Issues and Contentions [R1]. Rather the Secretary contends that an examination of Mr Ehlers’ records shows that he had not participated in a program of support for at least 18 months in the 3 years prior to his claim for DSP. Mr Hawker referred the Tribunal to Annexure 1 of the Secretary’s Statement which shows relevant program of support participation of 15 months 20 days.
The Tribunal finds that Mr Ehlers had not participated in a program of support for at least 18 months in the 3 years prior to his claim for DSP.
Even if Mr Ehlers had not met the program of support requirement, he would still be required, however, to demonstrate that he met the continuing inability to work criteria in sections 94(2)(a) and (b) of the Act.
The Secretary contended that Mr Ehlers did not meet these criteria at any time during the Relevant Period. The comprehensive analysis [R1/9-11] supporting this contention is provided below.
Further, the Secretary contends that the Applicant is not prevented, by reason solely of his impairments arising from fully diagnosed, treated and stabilised conditions only, from undertaking any work of at least 15 hours per week, or from participating in a training activity that would equip him to work.
The term “work” is defined in subsection 94(5) of the Act, as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia, even if not within the person’s locally accessible labour market.
In the process of determining whether a person has a continuing inability to work, the decision maker must disregard a number of factors including:
(a)Any impairments that have not been assigned a rating under the Impairment Tables (Re Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500 and Re Latchford and Secretary, Department of Employment & workplace Relations [2007] AATA 1459);
(b)The availability of work in the person’s locally accessible labour market (s 94(3)(b));
(c)The person’s preferences regarding the type of work or training (Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864);
(d)The person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Re Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846);
(e)The person’s motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Re Secretary, Department of Social Services v Pusnjak (1999) 56 ALD 444,451), and
(f)The existence of a benign employers or sheltered or special employment; that is, only the normal workplace is considered (Re Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; Re Hamal and Secretary, Department of Social Services (1993) 30 ALD 517.
The Functional Capacity Report dated 22 February 2011 [filed in these proceedings] was unable to establish the type of work or the likely appropriate hours due to the Applicant’s voluntary self-limiting cessation of the tasks being undertaken. The progress report dated 11 March 2011 [filed in these proceedings] goes not further than to record the Applicant’s self reported unchanged ‘functional limitations’. Equally the progress report dated 24 March 2011 [filed in these proceedings] goes no further than to record the Applicant’s self-reported ‘impoverished abilities’.
The Secretary contends that the Tribunal can place no weight on any conditions reached in the reports filed by the Applicant as they are both dated and uncorroborated, relying entirely on the Applicant’s self report made for the purposes of workers’ compensation proceedings. Given that objective testing was unsuccessful due to the Applicant’s cessation of the tasks, these reports provide no probative evidence of the Applicant’s ability for work during the qualification period in early 2015.
The JCA on 29 August 2013 [T6/42] assessed the Applicant as having a temporary work capacity of 0-7 hours per week during the period of an exacerbation of depression, anxiety, panic attacks and lumbar radiculopathy. The JCA assessed the Applicant’s baseline capacity for work as being 15-22 hours per week. It was also noted that the Applicant’s capacity for work within 2 years with optimal symptom management, DES-ESS interventions and placement in suitable work was 23-29 hours a week.
The JCA dated 2 February 2015 [T10/87] assessed the Applicant as having a temporary work capacity of 0-7 hours per week noting that the Applicant requires specialist intervention for his claimed impairment. The JCA assessed the Applicant’s baseline capacity for work as 15-22 hours per week in a ‘light less skilled’, ‘sedentary’ position. The JCA also concluded that with DMS assistance and specialist intervention to optimise symptom management the Applicant’s capacity for work within 2 years was 23-20 hours per week.
In the absence of objective, probative evidence to the contrary, the Secretary contends that the JCA report dated 2 February 2015 should be relied on. Accordingly, the Secretary contends that the Applicant, during the qualification period, did not have a continuing inability to work and so could not satisfy paragraph 94(1)(c) of the Act.
The Tribunal accepts this analysis and finds that Mr Ehlers did not have a continuing inability to work during the Relevant Period.
FINDINGS
During the Relevant Period, Mr Ehlers had spinal function impairment and a mental health impairment. He thus meets the requirements of section 94(1)(a) of the Act.
Mr Ehlers’ conditions giving rise to his spinal function impairment were not fully treated and fully stabilised during the Relevant Period. Mr Ehlers’ conditions giving rise to his mental health impairment were not fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly no impairment ratings on the Impairment Tables can be assigned to his impairments.
Had the Tribunal found that Mr Ehlers impairments were fully diagnosed, fully treated and fully stabilised during the Assessment Period, the appropriate impairment rating would be 15 points under Table 4 and Table 5.
Mr Ehlers does not satisfy the requirements of section 94(1)(b) of the Act.
Mr Ehlers did not participate in a program of support for at least 18 months in the 3 years prior to his claim for DSP.
Mr Ehlers does not have a continuing inability to work.
Mr Ehlers does not satisfy the requirements of section 94(1)(c) of the Act.
Accordingly, Mr Ehlers does not qualify for DSP.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 63 (sixty three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall, Brigadier AG Warner, Member, Mr W. Evans, Member ...(Sgd) A Tran...............
Administrative Assistant
Dated 26 February 2016
Date of hearing 25 January 2016 Applicant By telephone (self-represented) Representative for the
RespondentMr M Hawker Solicitor for the Respondent
Sparke Helmore
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