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

Flenley; Secretary, Department of Social Services and (Social services second review) [2018] AATA 2872 (2 August 2018)
Division:GENERAL DIVISION
File Number(s): 2017/5533
Re:Secretary, Department of Social Services
APPLICANT

Brett FlenleyAnd
RESPONDENT

DECISION
Tribunal:R. Cameron, Senior Member
Date:2 August 2018
Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Respondent was not qualified to receive the Disability Support Pension for a claim lodged on 2 February 2016 or within the 13 weeks thereafter.
........................................................................
Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – whether qualified at date of application – spinal condition, mental health condition - fully diagnosed, treated and stabilised – whether impairments attract rating of 20 points or more under the Impairment Tables – no continuing inability to work – decision affirmed
Legislation
Social Security Act 1991
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
R. Cameron, Senior Member
2 August 2018
INTRODUCTION AND BACKGROUND

This is an application by the Secretary, Department of Social Services seeking a review of a decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) (“AAT1”) made on 2 August 2017 setting aside a decision of an Authorised Review Officer of the Applicant rejecting a claim by the Respondent for the Disability Support Pension (“DSP”) made on 31 March 2017. The matter was remitted to the Chief Executive of Centrelink for reconsideration in accordance with the direction that the Respondent satisfied the provisions of sections 94(1)(a), 94(1)(b) and 94(1)(c) of the Social Security Act 1991 (“the Act”) (“the reviewable decision”).
It is useful by way of background to outline several of the relevant facts in this matter which are not in controversy.
The Respondent made a Claim for the DSP with Centrelink, the service provider for the Applicant, on 16 February 2016.[1] The claim form completed, signed and lodged with the Applicant seeking the DSP listed the following disabilities, illnesses and injuries from which the Respondent was suffering as follows:
(a)bulging discs;
(b)sleep apnoea;
(c)renal disease;
(d)depression;
(e)anxiety; and
(f)obesity.
[1] Document T6 of the T documents.
For three years prior to lodging the claim for the DSP with the Applicant, the Respondent had no record of active participation in a program of support.[2]
[2] This fact was conceded by the Respondent in paragraph 1 of his Statement of Issues, Facts and Contentions filed in this proceeding. Further, it is also evident from the contents of document T 47 of the T documents upon which the Applicant relied. This fact was also obliquely referred to in the Job Capacity Assessment Report of 8 July 2016 (document T 15 of the T documents at page 49).
A Job Capacity Assessment Report produced on 8 July 2016 recommended that the Respondent’s conditions were not fully treated and stabilised. Therefore, any impairments could not be rated under the Social Security (Tables for the Assessment of Work -related Impairment for Disability Support Pension) Determination 2011 (“the Tables”). Further, in the Job Capacity Assessment report of 8 July 2016 the Respondent’s work capacity was determined to be 15-22 hours per week in semi-skilled employment.[3]
[3] This fact was conceded by the Respondent once again in his Statement of Issues, Facts and Contentions at paragraph 1.
The Respondent’s claim for the DSP was rejected by the Applicant on 9 August 2016. In the letter of rejection of 9 August 2016 sent by the Applicant to the Respondent it states amongst other things, that the Respondent had been assessed as not having an impairment rating of 20 points or more under the Tables.
By an application made on 27 October 2016 the Respondent sought internal review of the decision to reject his claim for the DSP.
The Application made by the Respondent for review of the decision to reject his claim for the DSP was considered by an Authorised Review Officer of the Applicant who affirmed the decision to reject the Respondent’s claim for the DSP. Accordingly, the original decision to reject the claim of the Respondent was affirmed by the Authorised Review Officer on 31 March 2017.
The Respondent filed an application with AAT1 on 28 April 2017 in which he sought review of the decision of the Authorised Review Officer made on 31 March 2017.
Following the application by the Respondent to AAT1 seeking a review of the decision of the Authorised Review Officer upholding the original decision to reject the Respondent’s claim for the DSP, the AAT1 on 2 August 2017 set aside such decision and remitted it to the Chief Executive of Centrelink for reconsideration in accordance with the direction made that the Respondent satisfied sections 94(1)(a), 94(1)(b) and 94(1)(c) of the Act.
The Applicant applied on 13 September 2017 to the General Division of the Tribunal to review the reviewable decision.
THE RELEVANT LEGISLATION
Section 94(1) of the Act provides the criteria that must be satisfied for an Applicant to qualify for a DSP as follows:
Qualification for disability support pension
(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;
…
Continuing inability to work
(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.
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
ISSUE BEFORE THE TRIBUNAL
The parties acknowledge that the issue before the Tribunal to be considered is whether the Respondent was qualified to receive the DSP on 16 February 2016[4] or within 13 weeks thereafter. Therefore, the relevant period for consideration by the Tribunal is between 2 February 2016 and 3 May 2016 inclusive. This is commonly known as the “qualification period”.[5]
[4] This is the date that the Respondent lodged his claim for the DSP with Centrelink, with such claim to be found in document T9 of the T documents. The Tribunal notes that in the second paragraph of the Applicant's Statement of Issues, facts and Contentions it is asserted that the claim was made on 2 February 2016. However, when one examines the Claim for Disability Support Pension in the T documents it is dated 16 February 2016. This is the date that the Tribunal accepts for the purposes of this application.
[5] Hereinafter, throughout these reasons this definition will be used.
However, when one looks at what the Act mandates for an applicant to qualify for the DSP there are really three issues that must be addressed by the Tribunal for the purposes of this application, before it can answer the question of whether or not the Respondent was qualified to receive the DSP during the qualification period.
Firstly, whether the Respondent had any impairments that were fully diagnosed, treated and stabilised.
Secondly, if so, whether the Respondent’s impairments warranted in impairment rating of at least 20 points under the Tables.
Thirdly, whether the Respondent had a continuing inability to work in accordance with the definition contained in section 94.
These three issues articulated above were addressed by counsel for the Applicant and the Respondent in the course of the submissions and evidence that were put before the Tribunal.
THE EVIDENCE AND OTHER MATERIAL BEFORE THE TRIBUNAL
The following documentary evidence was tendered to the Tribunal:
(a)The T documents;
(b)The Supplementary T documents;
(c)A bundle of ten photographs derived from the Respondent’s “Facebook” website;
(d)A document from Austin Health “Pain management: Outpatient Services”;
(e)Report of Associate Prof Wong dated 29 May 2015;
(f)Report of Anne Sammells, Empower Rehab dated 26 April 2018;
(g)Report of Associate Prof Wong dated 10 September 2015;
(h)Report of Nicole Davy, psychologist dated 19 December 2016;
(i)Report of Nicole Davy, psychologist dated 9 September 2016;
(j)Report of Dr Fatemeh Khodaelfar dated 22 August 2016;
(k)Report of Dr Fatemeh Khodaelfar dated 9 August 2016;
(l)Report of Dr Simon Cohen dated 12 February 2015;
(m)Report of Dr Hannah Perfecto dated 1 April 2018; and
(n)Report of Dr Hannah Perfecto dated
Additionally, there was the viva voce evidence of the Respondent.
Both the Applicant and the Respondent filed Statements of Issues, Facts and Contentions. Further, the Applicant filed submissions in response to the Respondent’s Statement of Issues, Facts and Contentions on the day of the hearing before the Tribunal.
SECTION 94(1)(a) OF THE ACT
The first matter that section 94(1)(a) of the Act requires a decision maker to assess is whether the applicant for the DSP has a physical intellectual or psychiatric impairment during the qualification period.
The Applicant has conceded that the Respondent satisfies the relevant provisions of section 94(1)(a) of the Act[6]. Accordingly, no further consideration of this issue is necessary.
[6] This concession is made by the Applicant in paragraph 4.5 of the Applicant’s Statement of Issues, Facts and Contentions.
SECTION 94(1)(b) OF THE ACT
In turning to a consideration of section 94(1)(b) of the Act question should be addressed to precisely which disabilities, illnesses or injuries[7] (or as the section itself describes them the physical, intellectual or psychiatric impairments the Respondent) has which are before the Tribunal. Previously in these reasons the conditions referred to in the claim form signed by the Respondent for the DSP have been identified. However, in the submissions of both parties really only two conditions have been identified. The Respondent in his submissions has identified them as “Spinal condition” and “Mental Health condition”. It is not clear why the other matters identified in the claim form signed by the Respondent were not addressed. The Applicant has identified “Spinal condition”, “Alcohol and drug use”, “Mental health condition” and what are described as “Other conditions”. For whatever reason the parties have diverged from the description of the afflictions or conditions suffered by the Respondent as identified in his claim as noted previously. The Tribunal will endeavour to address each of the afflictions that are referred to in the material before it including the claim as well as the several medical and other professional reports that are in evidence such as the Job Capacity Assessment Reports which do provide a relatively comprehensive breakdown of each of the maladies concerned.
[7] This is the terminology used in the "Claim for Disability Support Pension" at paragraph 168 of the form. (Document T9, page 31 of the T documents.)
DEPRESSION AND ANXIETY “MENTAL HEALTH CONDITION”
However one categorises or describes this affliction be it a mental health condition and/or depression and anxiety, the difference between the Applicant and the Respondent is that they disagree as to whether this affliction has been fully treated and stabilised within the relevant sense prescribed by the statute.[8]
[8] See paragraphs 4.20 of the Applicant’s Statement of Issues, Facts and contentions and paragraph 45 of the Applicant's Submissions in Response to the Respondent's Statement of Issues, Facts and Contentions. The Respondent at paragraph 22 of his Statement of Issues, Facts and Contentions asserts that the Respondent’s "mental health condition" was fully stabilised at the date of the claim.
The Respondent contends that his mental health condition was fully stabilised during the qualification period. The grounds relied upon for making this contention are that there was no evidence to suggest that further treatment was likely to lead to “a significant improvement” over the future two years that would justify a conclusion that the mental health conditions suffered by him were not fully stabilised.
As is apparent there were several experts’ reports with respect to the mental health condition or perhaps more accurately, the anxiety and depression suffered by the Respondent in evidence before the Tribunal.
It is appropriate as a starting point to consider the contemporaneous medical evidence available to the Tribunal that came into existence during the qualification period.
Dr Perfecto, (whom the Respondent placed considerable weight upon her several reports lodged in this proceeding) in a medical certificate dated 29 February 2016[9] identified a “Secondary/Related condition” of “Depression and anxiety” and described the condition as “Temporary.” In this Medical Certificate under the heading “Treatment” Dr Perfecto identified both current and planned treatment for this affliction. The current treatment involved counselling Cognitive Behaviour Therapy (CBT) under the Mental Health Care Plan (MHCP) and antidepressants. The planned treatment included a psychiatrist’s review.
[9] Document T11 of the T documents.
A further Medical Certificate was signed by Dr Perfecto within the qualification period on 13 April 2016. In addressing the condition of “Depression and anxiety” Dr Perfecto repeats the matters that she recorded in her medical certificate of 29 February 2016. Once again she identifies the condition as “Temporary”. Further, she identifies current treatment as involving counselling, CBT under the MHCP and antidepressants. Future treatment was stated to be a psychiatrist’s review.
The conclusions of Dr Perfecto in both Medical certificates that the condition of depression and anxiety suffered by the Respondent at the dates of each certificate, was “Temporary” and that there was current and planned treatment of this condition are not consistent with reaching a conclusion that the conditions were fully diagnosed, treated and stabilised during the qualification period, as required in the relevant sense.
In anticipation of this proceeding Dr Perfecto prepared two further reports. One of those further reports was dated 1 April 2018[10] and the second further report was dated 8 May 2018[11].
[10] Exhibit R8.
[11] Exhibit R9.
The First Further report of Dr Perfecto dated 1 April 2018 does not identify whether or not it applies to the conditions suffered by the Respondent during the qualification period.[12] In this report concerning the mental health condition of the Respondent, she concludes that with the worsening of the his low back pain over time it resulted in him developing anxiety and depressed moods due to such persistent pain and stress from worrying about his future employability. Concerning the Respondent’s mental health condition she then on the second page of this report refers to Table 5 of the Impairment Tables and concludes that the Respondent has developed severe impairment involving his mental health function since he sustained his low back injury resulting in chronic low back pain and unemployment. She further opines that this condition impacted on his self-care and independent living, stating that he needed assistance at least twice a week from a family member and has difficulty concentrating on any task for more than 10 minutes. His behaviour, thoughts, and conversation are significantly and frequently disturbed. The anxiety and depression suffered by the Respondent is ongoing and also deemed to likely persist indefinitely. She concludes that his medical conditions (being the lumbar spine degeneration and the mental health condition) have therefore, been fully diagnosed, treated and stabilised and are deemed permanent. This report does not really identify any future treatment options for either condition.
[12] Subsequently, during the course of the hearing it was submitted by counsel for the Respondent (and confirmed in an email from Dr Perfecto herself) that it was retrospectively applying to the relevant condition of the Respondent during the qualification period.
The Second Further report of Dr Perfecto dated 8 May 2018 refers to the qualification period in its first paragraph. The paragraphs a), b) and c) appear to be the same as those in the 1 April 2018 report. It repeats the diagnosis of anxiety and depressed moods. Further, such report states what the author considers to be the reason for the Respondent developing such anxiety and depressed moods which was due to the persisting pain and stress from worrying about his future employability. She then describes the anxiety disorder and depression suffered as being secondary to the Respondent’s chronic pain and impaired capacity to work in his field. Also Dr Perfecto recorded that consequent to the development of the anxiety and depression was a commencement of more excessive alcohol consumption, together with marijuana smoking which the Respondent stated assisted him cope better with the pain from which he was suffering. Concerning the Respondent’s mental health condition she states that it is ongoing and being managed with psychological support counselling, psychiatrist review and medical management.
The further medical reports from Dr Perfecto in April and May 2018 are somewhat inconsistent with the earlier opinions expressed by her in her medical certificates that she provided to Centrelink on 29 February 2016 and 13 April 2016 during the qualification period. The Tribunal acknowledges that the February and April 2016 reports are by way of completing a standard form with limited space for inclusion of the treating doctor’s comments. In those reports she described the conditions of depression and anxiety as “Temporary”. The subsequent reports therefore, cannot be reconciled with the earlier ones. Where the earlier reports of Dr Perfecto so conflict with the later ones in 2018 the Tribunal prefers and places much greater weight on those contemporaneous to the qualification period which described the condition of depression and anxiety as “Temporary”.
Even if one is able to cavil with the use of the word “Temporary” when that assessment is also compared with that of Associate Professor Wong (the first report of whom was before the qualification period and the second report was after it) which identified further treatment options, and the two reports of Dr Khodaeifar[13] (both relatively shortly after the qualification period had expired) which identified further treatment options, it leads the Tribunal to conclude that the Respondent’s mental health condition was not fully treated and stabilised during the qualification period.
[13] The reports of Associate Professor Wong and Dr Khodaeifar will be referred to in more detail subsequently in these reasons.

Two reports were in evidence from Dr Khodaeifar, a Psychiatry Registrar of the North Western Mental Health. The first report is dated 9 August 2016[14] and the second report is dated 22^nd August 2016[15]. The contents of both reports are referred to for their full force and effect. However, they both identify the relevant diagnoses and plans for future treatment. The first report notes that the Respondent had seen a pain specialist but could not continue. It also recommends specialist/targeted assessments and/or investigations and with a referral to a psychologist through his general practitioner. It notes the Respondent’s severe obesity.
[14] Exhibit R-6.
[15] Exhibit R-5.
The second report of Dr Khodaeifar contains a series of recommendations including, critically, commencement of additional drugs[16] to assist him with mood and paranoid ideations, psychology referral and the need to lose weight with a suggestion of surgical intervention at that stage.[17] Between that date and the date of the hearing of this application no such surgical intervention (presumably lap band surgery) has occurred.
[16] Nortriptyline an anti-depressant (if commenced Endep use could cease) and Abilify (for help with mood and paranoid ideations).
[17] This issue is touched on in other medical reports which will be referred to subsequently in these reasons.
The recommendations in both reports from Dr Khodaeifar (although made after the qualification period), for future treatment are not consistent with a conclusion that this condition suffered by the Respondent had been fully treated and stabilised during the qualification period. This conclusion on the preponderance of the material is also consistent with the opinions expressed by Dr Perfecto in the Medical certificates of 29 February 2016 and 13 April 2016, that current and future treatment was required.
Two medical reports were in evidence from Associate Professor Michael Wong, a Consultant Psychiatrist. Usefully, both reports straddle the qualification period and do assist in gaining a picture of the Respondent’s mental health condition or depression and anxiety over that period.
The first report is dated September 10 2015[18] and diagnoses an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Associate Professor Wong recorded that he discussed treatment options with the Respondent which included medication. This included continuing with existing medication and increasing the dosage in some instances together with taking additional medication of a different variety for optimal anxiety control. There was a recommendation concerning sleep hygiene and taking of medication closer to bedtime. Critically, for the purposes of this application he recommended that the Respondent continue to work with his psychologist and pain specialist. This was a recommendation of a future treatment program. He recorded that the Respondent was agreeable to “give the treatment a go”. Such recommendations (not to mention the Respondent’s acknowledgement of his preparing to undertake such further treatment) are not indicative of his mental health condition being fully treated and stabilised.
[18] The First Report of Associate Prof Wong is document T4 of the T documents.
The second medical report in evidence from Associate Professor Wong is dated 29 May 2017[19]. He records that he had reviewed the Respondent on that day and confirmed his existing diagnosis. He expresses an opinion that improvement to his condition would come from better pain control and regular contact with MIND (a community mental health service) and a psychologist. An additional recommendation was made for an adjustment of the dosage of some medication. Once again this report makes recommendations for future treatment options and in the circumstances is not indicative of the Respondent’s mental health condition being fully treated and stabilised. It does lead the reader to conclude that there was a significant state of uncertainty as to the future of this affliction.
[19] The Second Report of Associate Prof Wong is document T36 of the T documents.
Dr Epstein, a psychiatrist, at the request of the Respondent’s lawyers prepared a report on 16 December 2016.[20] This report noted that the Respondent’s mental state had improved and suggested that he may need to resume treatment in a pain management program as it would assist him in coping with his condition. He also observed that the Respondent had developed a significant Substance Use Disorder with alcohol and cannabis that lead to a further deterioration of his mental state. He opined that the prognosis for improvement with regard to the Respondent’s mental state was very much dependent on what happened with his ongoing physical symptoms, which was an obvious reference to the question of his continuing pain and its management caused by his back injury. Dr Epstein also noted that in May of 2015 following an episode when the Respondent was admitted to Northwestern Mental Health the Respondent’s pain management program was postponed to focus on improving his mental state. (It would appear that this is the pain management program or clinic that he attended but subsequently did not complete which has featured in several expert reports filed with the Tribunal and referred to throughout the course of the hearing). Dr Epstein then assessed the Respondent’s level of psychiatric impairment of 15% using the Comcare Guide to the Assessment of the Degree of Permanent Impairment (Second Edition). Whilst this is a different impairment table the conclusion reached by Dr Epstein does not on its face assess the Respondent’s level of impairment as severe if one were applying the applicable descriptors for a 20 point rating under Table 5 “Mental Health Function” of the Impairment Tables. Additionally, the report of Dr Epstein does not conclude that the mental health condition of the Respondent was at the time of such report fully treated and stabilised. At best he concluded it was essentially stable if his back condition persisted. This is a significantly qualified opinion.
[20] Document T24 page 68 of the T documents.
A report was obtained by the Respondent from Ms Koprivica a clinical psychologist dated 21 January 2018[21]. She analysed the mental health conditions suffered by the Respondent by reference to an array of medical reports and other material.[22] She considered the mental health condition of the Respondent under the headings of “Alcohol Use Disorder” and “Adjustment Disorder with Mixed Anxiety and Depressed Mood”.
[21] Document ST4 of the ST documents.
[22] The extensive material reviewed by Ms Koprivica preparing her report is to be found in “Part 2. EVIDENCE CONSIDERED FOR THIS REVIEW”.
With respect to the Alcohol Use Disorder she opined that in relation to treatment, reasonable treatment for such a disorder includes a combination of drug and alcohol counselling, controlled detoxification, rehabilitation or pharmacological therapy including the use of disulfiram. This recommended treatment program she stated relied upon several professional and academic studies, and had been proven to be effective particularly when applied in combination with additional psychosocial treatment and close monitoring. These steps were not taken during the qualification period and of course were open to the Respondent during that time and thereafter. This opinion is further support for the contention that the condition was not fully treated and stabilised.
The Adjustment Disorder and Anxiety and Depressed Mood identified by Ms Koprivica had not been fully treated and stabilised because such conditions were exacerbated due to the Respondent’s ongoing heavy alcohol use. She expressed the opinion that alcohol use was enmeshed with the impact on the Respondent’s mental health condition and pain symptoms. Consequently, it was likely that the functional impact of the mental health condition may be reduced if alcohol abuse is optimally and reasonably treated and his pain well-managed. (Presumably, by participation in an appropriately monitored pain management program.) Therefore, if the Respondent had during that time accessed further psychological therapy his symptoms were likely to improve within the next two years. This leads to the conclusion that the condition was not fully treated and stabilised because there was further treatment open to him which was not pursued. Subsequent abstinence from alcohol had resulted in improved liver function, significant weight loss and did not further impact on treatment and symptoms associated with the relevant mental health condition. The conclusion this leads to is that once again there must have been further treatment options open to the Respondent to deal with the mental health conditions afflicting him however they may be classified or categorised.
Apart from the comparatively bold opinions expressed by Dr Perfecto in her reports of April and May 2018 in which she concludes that the mental health condition of the Respondent was fully treated and stabilised, the other experts to varying degrees as outlined above reach a different conclusion, particularly with respect to future treatment options and to some quite considerable extent stabilisation thereafter following such treatment options if they were taken. For these reasons the Tribunal concludes that the mental health condition of the Respondent was not fully treated and stabilised as required.
Further however, if the condition was fully diagnosed, treated and stabilised (which is not the finding of the Tribunal) there is insufficient evidence before the Tribunal to make a finding that such condition caused a severe functional impact (attracting 20 points) as asserted by the Respondent; or otherwise. There are six descriptors applicable to a finding of a severe functional impact on activities involving a mental health function. It is necessary to find that the person concerned has severe difficulties with most of those descriptors. If one looks at the reference to Table 5 in Dr Perfecto’s report of 1 April 2018, she does not identify a severe functional impact with most of the applicable descriptors as required. At best she only identifies three of the descriptors as applying.[23]
[23] Self-care and independent living (Descriptor (1) (a); Concentration and task completion (Descriptor (1) (d) and Behaviour, planning and decision-making (descriptor (1) (e). The evidence with respect to descriptor (1) (a) is somewhat limited because it is largely conclusory. It does not fully identify what assistance he needs at least twice a week from a family member for his self-care and to enable independent living. It is acknowledged that his wife obviously provides a level of assistance but it is not clear precisely what she actually does and whether it extends beyond what had been the household routine in the family environment beforehand.
THE SPINAL CONDITION (BULGING DISCS)
There are several matters of contention between the Applicant and the Respondent with respect to the Respondent’s spinal condition.
Firstly, the Applicant contends that the Respondent’s spinal condition has not been fully treated and stabilised. The Respondent contends that it has relying upon the several reports prepared by his general practitioner Dr Perfecto.
Secondly, the Applicant also contends that if the Respondent’s spinal condition has been fully treated and stabilised, as asserted by the several reports that have been filed with the Tribunal of Dr Perfecto, there has been an incorrect use of Table 1 to assess such spinal condition. Specifically, the Respondent has used or applied Table 1 which is the applicable table for “Functions requiring Physical Exertion and Stamina”. The Applicant contends that this is the wrong table to apply and that Table 4-Spinal Function is the correct table to apply.
Thirdly, the Applicant contends, assuming that Table 4-Spinal Function applies no more than 10 points under Table 4 can be assigned to the condition.
There are several medical reports that have been produced which were created during the qualification period which record various health professionals’ opinions concerning the Respondent’s spinal condition.
As noted previously, there were Medical Certificates provided by Dr Perfecto on 29 February 2016 and 13 April 2016 which are in identical terms with respect to the diagnosis, symptoms, treatment and prognosis of the condition. These reports are referred to for their full force and effect. They identify as a “Primary condition” that the Respondent is suffering from “Lumbosacral spine disc bulge/degeneration at L5/S1”. The “Symptoms” are described as “severe low back pain, impaired mobility, fatigue”. The “Treatment” is identified as “Past: physiotherapy, pain rehabilitation, analgesics”, “Current: analgesics, pain specialist management, spine specialist review, back support, walking stick”, “Planned: follow up with spine specialist, pain specialist”. She considers the condition is permanent, likely to persist for two years or more and in each case certifies him as unfit for work for a designated period. Whilst each of these Medical Certificates are necessarily brief and were not obviously written as a comprehensive medical opinion the fact that such reports refer to both current and planned treatment options including referral to a pain management specialist and a spinal specialist are indicative of a conclusion that the spinal condition was not fully treated and fully stabilised during the qualification period as required.
Mr Barmare, an orthopaedic surgeon, prepared a report of 4 February 2016. Mr Barmare in that report records the observation of the Respondent that his back has gotten worse and that he needs something to be done. Mr Barmare further records that he has reviewed the MRI which revealed a degenerative disc disease L4/L5 with possible facetal arthropathy. He opines that there is axial discogenic back pain that would be very difficult to really manage with the Respondent’s background of morbid obesity. In terms of treatment options he recommended concentrating on pain relief, obtaining a PEC bone scan and having an injection of steroids to the hot facets and possibly bariatric surgery, which would offer benefits to him because it would reduce the workload on the spine and improve his overall general constitution. One should pause to observe that these recommendations are indicative of future treatment available to the Applicant which are consistent with a finding that his condition had not been fully treated and fully stabilised as required.
Dr Simon Cohen, a pain specialist produced a report on 16 February 2016.[24] It is apparent that he had the benefit of Mr Barmare’s report and does note his observations and recommendations in particular that a facet joint injection be administered. Dr Cohen concluded that the pain experienced by the Respondent was likely to be of facet joint origin and that he would most likely benefit from the interventions recommended by both him and Mr. Barmare (which included a facet joint injection). He further opined that a series of diagnostic blocks (although these are not specified) would be a reasonable approach to the Respondent’s low back pain and that is what he recommended. Once again these recommendations for future treatment available to the Respondent made by a pain management specialist are consistent with a finding that the Respondent’s condition had not been fully treated and fully stabilised during the qualification period as required.
[24] Part of document ST1 at page 170.
There are other medical reports outside the qualification period that will be considered in these reasons.[25]
[25] It should be emphasised that all material in evidence before the Tribunal has been considered.
Another pain management specialist, Dr Karim, prepared a report on 30 May 2017[26]. This report recounted the Respondent’s history and recommended that a definite pain management plan be reactivated and that the Respondent participate in such program as it would play a significant role in his ongoing management. He specifically on the second page of his report recommended several steps that should be undertaken by the Respondent including a comprehensive program of prescription drugs, a review of recent MRI scans, continuing abstinence from alcohol and the “reactivation and re-participation in the pain management program”. Whilst this report is well outside the qualification period it does indicate once again that there were further treatment options open to the Respondent which had not been fully exhausted.[27]
[26] Document T57 (page 117) of the T documents.
[27] Although not consulted about the Respondent’s spinal condition Associate Professor Wong (a Consultant Psychiatrist) in his report of 29 May 2017 addressed to Dr Perfecto did express an opinion that improvement would come from better pain control and made certain recommendations in this context. It will be recalled that there has been a consistent theme throughout several medical reports in evidence before the Tribunal that the Applicant's spinal condition has caused him to suffer significant pain for which treatment was required including during the qualification period applicable in this application.
The report of Dr Karim did observe that the Respondent had been attending rehabilitation sessions which stopped in 2015. It is not altogether clear but it appears to be similar to the pain management plan referred to in the letter from John Holland (the Respondent’s former employer) to him dated 16 February 2016 which noted that a pain management program was attended by the Respondent but stopped due to a mental health crisis. The preponderance of the evidence on this point seems to indicate that the pain management program was open to the Respondent as a form of treatment but that it has not been satisfactorily completed.[28] This also indicates that undertaking a pain management program would be beneficial to both his spinal condition and the mental health conditions from which he suffers.[29]
[28] It was also noted in a report prepared by Dr Khodaeifar a Psychiatric Registrar at Northwestern Mental Health of 9 August 2016 that the Applicant did attend a pain clinic, was seen by a psychologist and a specialist but apparently did not continue with it because he could not afford it.
[29] The Applicant did tender in evidence a page from the website of Austin Health "Pain management: Outpatient Services". This document gave a brief synopsis of the Austin Pain Management service to which the Respondent could be referred by his treating general practitioner. The document advises that the service "consists of pain medicine specialists, rehabilitation specialists, psychiatrists, clinical psychologists, physiotherapists and nurses." The Tribunal notes the contents of the document and infers that it is a pain management service available to the Respondent as a public patient.
Dr James, an occupational and environmental physician was requested by a letter dated 3 October 2017 on behalf of the Applicant to prepare a report with respect to the Respondent’s conditions during the qualification period. She conducted an examination of the Applicant on 31 October 2017 and produced a report dated 30 November 2017 which was in evidence before the Tribunal. The contents of Dr James’ report are referred to in their entirety. However, she concluded that the Respondent’s spinal condition was not adequately treated and stabilised during the qualification period. She noted that the Respondent admitted to her that he had undertaken a multidisciplinary pain management program in 2015 which had been of some benefit to him, that he had not completed it and that he had stopped it too early. She expressed the opinion that the Respondent would see considerable benefit from a full multidisciplinary pain management program and weight loss to reduce his back pain and optimise functional capacity. Upon undertaking such a multidisciplinary pain management program combined with weight loss she opined that the Respondent would notice an improvement in his mobility, management of back pain with less analgesia and hence less side effects; leading to an ability to perform a wider range of physical tasks with improved psychosocial outcomes within a two-year period from undertaking such steps. She also noted that facet joint injections recommended by treating doctors in early 2016 had not been undertaken. Further, she stated that such facet joint injections are a current recognised treatment modality readily available in Australia. It was for these reasons that Dr James concluded amongst other things that the Respondent’s spinal condition was not fully treated and stabilised.

However, assuming that the Respondent’s spinal condition was fully diagnosed, treated and stabilised Dr James expressed the opinion that his level of spinal impairment at the qualification period was under Table 4 “Spinal Function” was “moderate”. She stated the reasons for this were that taking into account the available medical reports that were furnished to her, the Respondent’s history together with the findings of the examination of him conducted by her including observations of his functions during this assessment, that although he may have required some assistance with bathing and dressing he most likely had a functional capacity to stand and walk with the aid of a single point stick; sit for a period of 30 minutes or more; drive a car and bend forward sufficiently to carry out tasks at table height and possibly lower.
Dr Perfecto in her report of 1 April 2018 expressed the opinion that his medical conditions including the spinal condition had been fully diagnosed, treated and stabilised. The report was written apparently in support of the Respondent’s claim for a DSP. The progression of his low back pain was recorded. A diagnosis of his spinal condition was undertaken and the symptoms referred to. She then sought to apply Table 1 to conclude that there was severe functional impact on activities requiring physical exertion or stamina. Further, she noted that the Respondent usually experiences symptoms such as fatigue, exacerbation of low back pain when performing light physical activities and due to such symptoms he is unable to walk or mobilise in a wheelchair around a shopping centre or supermarket without assistance. Similarly, he was unable to use public transport without assistance and has difficulty sustaining work-related tasks of clerical, sedentary, or stationary nature for a continuous shift of at least three hours.
Dr Perfecto then applies Table 4-Spinal Function Assessment to conclude that there was a moderate functional impact on activities involving spinal function. She reached this conclusion because he stated the Respondent is unable to bend forward to pick up a light object placed knee-high and needs assistance to get up out of a chair. She identifies treatment that had been provided to date including amongst other things, a psychologist and psychiatrist management and pain specialist management. She does note that he had been referred to the Austin Hospital Bariatric Specialist Clinic for weight management but was unable to see a private specialist due to financial constraints. Unfortunately, she does not identify whether further treatment options were or were not available concerning a comprehensive pain management program as suggested by several of the other specialists including Dr Cohen, Dr Karim and Dr James.[30]
[30] It is acknowledged that Dr Perfecto may not have seen Dr James’ report. Unfortunately, Dr Perfecto did not give evidence and therefore this matter was not able to be explored with her.
The further report prepared on 8 May 2018 by Dr Perfecto in support of the Respondent’s claim for the DSP and was expressed to cover the qualification period. Much of her report repeated what was in her report of 1 April 2018 with respect to the clinical history and diagnosis. The contents of the report are referred to in full. She does identify the spinal condition causing chronic and worsening low back pain as the primary condition from which he suffered which was long-standing. In terms of diagnosis she records that the Respondent has limited RAM of the lumbar spine associated with poor endurance, limiting his capacity to stand and sit for more than 30 minutes at a time, with some noted muscle wasting of his buttocks, thighs and legs. Details of the relevant treatment were provided including psychologist and psychiatrist management. Interestingly, unlike her April report she records that the Respondent also started drinking more alcohol and began to smoke marijuana, stating that they all made him cope better with his pain. There is no specific reference to previously undertaking a pain management program but there is an acknowledgement that he had seen a psychologist and psychiatrist management. In terms of future treatment there is reference to psychiatrist review and medical management. Interestingly, she does not express an opinion as to whether a multidisciplinary pain management program and/or facet joint injections as suggested by Mr Barmare would be appropriate.
Having considered all the material the Tribunal concludes that the Respondent’s spinal condition was not fully treated and stabilised during the qualification period. There are several reasons for this. Firstly, noting the observations of Dr Perfecto in her certificates of February and April 2016 that there were planned treatment options including referral to a pain management specialist and a spinal specialist of itself establishes that at the very least there had not been complete treatment let alone investigation of the symptoms concerned. It does indicate some level of uncertainty in terms of the prognosis for stabilisation. Secondly, the recommendations of the orthopaedic surgeon Mr Barmare made following an examination during the qualification period cannot be ignored. Once again he identified future treatment options which are inconsistent with any finding of the spinal condition suffered by the Respondent having been fully treated and fully stabilised. Thirdly, there is the report of the pain specialist Dr Simon Cohen produced during the qualification period, which also which also makes future treatment recommendations. These recommendations are consistent with Dr Perfecto’s views to some extent and Mr Barmare’s views entirely with respect to a treatment program and therefore cannot enable the Tribunal to conclude that the condition was fully treated and stabilised as required during the qualification period.
Whilst less weight can be placed upon medical reports obtained outside the qualification period there is a consistent theme in the reports prepared by Dr Karim (who it should be recalled had the Respondent referred to him by Dr Perfecto) and Dr James who was retained pursuant to a request from the Applicant. The common theme in both these doctors’ reports was reference to treatment by way of a multidisciplinary pain management program and associated weight loss to reduce back pain and functional capacity. This is on top of the suggestion of possible facet joint injections. Both these reports identify the spinal condition suffered by the Respondent as having continued in substantially the same way in terms of diagnosis and prognosis from the qualification period through to the relevant date that each of those practitioners conducted an examination of the Respondent. Once again these opinions expressed by two doctors whose independence cannot be seriously questioned as to future treatment options leads to a conclusion that the condition was not fully treated and stabilised during the qualification period.
The Tribunal should at this juncture make some observations about the weight to be given to various specialist and treating doctors reports. The Applicant in a supplementary submission lodged in response to the Respondent’s Statement of Issues, Facts and Contentions asserted that more weight would be given to the opinions of specialist physicians expert in their field to the opinions of general practitioners particularly those who have been treating a person for many years.[31] Dr Perfecto had treated the Applicant since June 2013. Unfortunately, she did not give evidence at the hearing as she was not available to attend. This is understandable and given the explanation the Tribunal does not draw any adverse inferences from her failure to do so. However, notwithstanding this fact because she was not in attendance to give evidence and be cross-examined it is possible that any amplification or clarification of her evidence that may have assisted the Respondent was not received by the Tribunal. Further, in the sense contended for by the Applicant the Tribunal does not place any less “weight” on Dr Perfecto’s several reports but for the reasons articulated finds that her initial reports’ contents coupled with those of other doctors (including specialists) both during the qualification period, and before and after it created a preponderance of evidence that persuades the Tribunal that the Respondent’s spinal condition and mental health condition had not been fully treated and fully stabilised during the qualification period.
[31] Paragraphs 11 to 15 of the Applicant’s submissions of 9 May 2018 are referred to. Particularly the decision of D’Amico v Comcare [2018] AATA 54. Further, reference was made to the decision of Perich v Secretary DSS [2018] AATA 963 which decision quotes various extracts from Freckleton & Selby "Expert Evidence" Fifth Edition. This extract compares the advantages and disadvantages of a tribunal or court receiving evidence from what were described as "treating health practitioners" and "assessors who do not treat the patient". With respect to both of these decisions it is submitted that ultimately it is a matter for consideration by the Tribunal on a case-by-case basis assessing the evidence in the usual way. The process of assessing such evidence will of course involve a consideration of the platform or foundation upon which such expert doctor relies upon to form his opinion including all necessary assumptions that he or she may be asked to make, together with consistencies or inconsistencies which may affect the Tribunal’s decision whether to accept or reject an opinion so expressed. Unquestionably, there will be occasions when treating doctors will for all sorts of reasons including inadvertence and natural human qualities lean towards advancing the cause of their patient which may make them become more of an advocate rather than strictly discharging their obligation to assist the tribunal of fact. However, there should not be a predisposition towards viewing a treating doctor any differently to any other doctor. It is of course frequently the case that in the setting of personal injury claims plaintiff's lawyers retain the same experts as do insurers’ lawyers. Often, to use the terminology they are retained because it is considered they will give a forensic advantage to the party concerned. If these qualities are exhibited in either a report or the viva voce evidence of such a practitioner naturally, their evidence would be viewed with some caution or otherwise subjected to perhaps stricter scrutiny. The rider to the extract from Freckleton & Selby incorporated in paragraph 13 of the Applicant's submissions concerning the limitations that one must place on assessors report, because often comparatively little time is spent by the assessor with the patient, meaning that the assessment is either somewhat superficial or heavily dependent on patient self-report is a point well made. A treating medical practitioner who has a long-standing doctor-patient relationship in many circumstances will be best equipped to express an accurate, considered, arm's-length and fair opinion with respect to the diagnosis, treatment and prognosis of a particular affliction or malady.
Otherwise, consideration should be given to what Impairment Rating under which of the Tables should be applied to the Respondent’s spinal condition. Dr Perfecto in her report of 1 April 2018 applied both Table 1 and Table 4 to the Respondent’s spinal condition. The Applicant takes issue with the use of Table 1 to assess the spinal condition by Dr Perfecto.[32] It will be recalled that Dr Perfecto contended that the condition as diagnosed fully treated and stabilised, suffered by the Respondent constituted severe functional impact which attracts a 20 point rating when the relevant descriptors are applied.
[32] See paragraphs 16 to 24 and 31 to 37 of the Applicant’s Submissions in Response to the Respondent’s Statement of Issues, Facts and Contentions dated 9 May 2018.
Under “Part 2-Rules for applying the Impairment Tables” several things emerge. Rule 6 “Applying the Tables” sub-rule (9) “Assessing functional impact of pain”, observes that there is no table specifically dealing with pain and when assessing pain several matters must be considered. Critically, sub-rule (9)(b) provides that chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected. (The entire sub-rule is referred to for its full force and effect).
Rule 10 “Selecting the applicable Table and assessing impairments” requires the assessor to undertake several steps. Firstly, identify the loss of function. Secondly, then refer to the Table related to the function affected. Thirdly, then identify the correct impairment rating.
The Applicant, in its submissions in response to the Respondent’s Statement of Issues, Facts and Contentions referred to several Instructions of the Guide to Social Security Law. Specifically Instructions 3.6.3.05, 3.6.3.07 and 3.6.3.10. The contents of these particular clauses are referred to in their entirety for their full force and effect. However, it is worthwhile repeating for the purposes of these reasons some of the contents of those instructions in determining whether Table 1 or Table 4 are applicable individually or collectively, and if individually, which one.
Instruction 3.6.3.05 notes, amongst other things, that if a person experiences chronic pain as a result of a permanent condition and this pain impacts multiple areas of the body, more than one body area table may be used to assess the impact of the condition as long as the overall level of impairment is not overstated/ double counted.
Instruction 3.6.3.07 provides, amongst other things, that where chronic pain has been fully diagnosed, treated and stabilised, the assessor should assess any loss of functional capacity using the table relevant to the area of function affected. It further notes that chronic pain can also be a symptom and when it stems from a permanent condition the functional impact of the pain should be rated using the relevant Table/s to capture the appropriate level of impairment while ensuring that the level of impairment is not overstated or double counted.
Instruction 3.6.3.10 notes that assessors need to be mindful not to overstate the level and nature of impairment. Musculoskeletal conditions can be expected to involve some level of ongoing pain and reduced stamina in addition to a loss of dexterity/flexibility, which would all be factors in determining the level of severity of the impairment. This is more evident when assessing a person’s ability to undertake the actions described on a repetitive basis rather than a one-off action.
Considering the guidance provided in the “Rules for applying the Impairment Tables” and the Guide to Social Security Law referred to above it is considered that the appropriate impairment table to assess the Respondent’s spinal condition is Table 4 of the Impairment Tables. There are several reasons for this conclusion. Firstly, the various medical reports that are in evidence before the Tribunal have diagnosed a spinal condition. The reports have not expressed (save for the report of Dr Perfecto on 1 April 2018) an opinion that the impairments suffered by the Respondent really fall within the ambit or dragnet of functions in enumerated Table 1. Further, in this consideration the overwhelming preponderance of the medical reports described the spinal condition as the primary affliction suffered by the Respondent during the qualification period which has led to functional impairment of various kinds but more applicable to the descriptors contained in Table 4. Secondly, the overall level of impairment expressed in the reports consistently refers to degenerative disc disease L4/L5. It is this condition which it is said to have principally caused the pain from which the Respondent has suffered. This is what has led to the ongoing pain, reduction in stamina and loss of flexibility concerned which is overall a condition that should not be double counted which it is submitted applying an Impairment Rating from Table 1 would do in the circumstances.
Whilst it is not strictly necessary to apply an Impairment Rating under Table 4 for the reasons articulated above the Tribunal considers it appropriate to undertake this task nonetheless. There was a consistent theme adopted by the Applicant throughout the case including during cross-examination of the Respondent, that he was to some extent more active and more capable of doing things that he may have otherwise led the Tribunal and itself to believe. For instance a bundle of 10 photographs taken from the Respondent’s Facebook were tendered in evidence as evidence of his capacity to undertake various physical tasks. The Respondent gave evidence and it is accepted by the Tribunal that the photographs have limited relevance because they were taken in most instances four years ago or longer which was of course outside the qualification period. Also these photographs were predominantly taken at a time before most of the medical reports in evidence before the Tribunal were created.
However, there were several other facts relied upon by the Applicant in support of its contention that an Impairment Rating of no more than 10 points under Table 4 should be applied. Those matters are as follows:
(a)On 10 September 2015 Associate Professor Wong reported that the Respondent saw himself as happy and sociable, enjoying footy, fishing and squash;
(b)On 26 October 2015, the Respondent reported to Dr Silver[33], a consultant occupational physician that he enjoyed fishing, watching his sons play sport and socialising with friends, having a few beers at the pub on Friday afternoon and being a barbecue chef at home. He also took his dog to the dog park, was able to unload the dishwasher and prepare meals and cups of coffee[34];
(c)Further, Dr Silver reported that the Respondent was able to sit for 30 minutes, put clothes in a washing machine, hang clothes on a clothes horse, play computer games, watch television, prepare lunches for his children, drive his children to school on most days, occasionally fish with a friend and attend monthly meetings at an anglers club;[35]
(d)Dr James in her report of 31 October 2017, applied Table 4 and the descriptor of moderate functional impact on activities involving spinal function. The grounds upon which she expressed this opinion were that doctors who had assessed the Respondent during the relevant qualification period stated that his back flexion was good and there was no neurological impairment. During her examination she observed him to sit for periods of more than 10 minutes. Further, he stated to her that he was able to engage in seated activities such as working on his motor scooter for longer periods, had an ability to bend to stack and unstack a dishwasher, take clothes to the top loading washing machine and make beds. During the course of such examination he was observed to bend down for the purposes of undressing and dressing, moving on and off the examination couch without assistance and bend down to the left whilst seated to retrieve an item from a bag on the floor. His range of movement of the spine on examination demonstrated a capacity to bend forward to at least table height.
[33] Dr Silver’s report is document ST3 in the ST documents. The contents of his report are referred to in their entirety for their full force and effect.
[34] In another portion of his report Dr Silver recorded that the Respondent stated when asked about his daily activities that he does a light exercise program involving walking around the kitchen table, walking outside and stepping up and down on the steps to his veranda. He further stated he does this several times a day.
[35] In its Statement of Issues, Facts and Contentions at paragraph 4.18 (c) an extract from Dr Silver's report was referred to in which he described the Applicant as "an unreliable historian whose history cannot be taken at face value". The Tribunal does not place any weight on this conclusion because it is not necessary to do so given the preponderance of other evidence which enables it to adjudicate on this application. In any event the evidence given by the Applicant to the Tribunal was not conclusive one way or another because of the fact that there was significant evidence contained in the relevant medical reports which assume primacy in terms of the considerations in this case.

Therefore, it is the contention of the Applicant that there is no corroborating evidence that the Tribunal can identify which supports a finding that there is a severe functional impact on activities involving the final spinal function.
The Tribunal accepts the evidence identified above from several sources which indicate that the Respondent can carry out the tasks or activities identified in Table 4, which would give a 20 point rating by reason of a severe functional impact if they were unable to be performed. It would seem at best on the material available to the Tribunal that the Respondent would establish a moderate functional impact which attracts a 10 point Impairment Rating.
OTHER CONDITIONS
The Respondent did not pursue any other conditions both in the course of the hearing itself and in his Statement of Issues, Facts and Contentions. In the circumstances, the Tribunal finds that there is insufficient evidence upon which it is able to reach a conclusion that those conditions were fully treated and fully stabilised. Therefore, in such circumstances it is unable to make an assessment of any Impairment Rating under the Impairment Tables for such conditions.
DOES THE RESPONDENT HAVE A CONTINUING INABILITY TO WORK?
As the Tribunal has found that the Respondent’s spinal condition and mental health condition have not been fully treated and fully stabilised it is not strictly necessary for it to determine whether the considerations prescribed under section 94(1)(c) apply.
Section 94(2) of the Act it will be recalled provides a definition of “Continuing inability to work”. Section 94(2)(aa) of the Act specifies that where a person’s impairment is not a severe impairment within the meaning of subsection (3B)[36] the Secretary must be satisfied that the person concerned has actively participated in a program of support as defined therein.
[36] Severe impairment is defined in this section as being 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
However, the Applicant contends that the Respondent had no record of active participation in a program of support for a period of three years prior to the claim for the DSP. Therefore, the Respondent cannot satisfy the first limb of the definition of a continuing inability to work in section 94(2)(aa) of the Act. As noted earlier in paragraph 4 of these reasons for three years prior to lodging the claim for the DSP with the Applicant the Respondent had no record of active participation in a program of support so this contention of the Applicant is accepted by the Tribunal.
If it is necessary to do so there is the question of whether the remaining limbs of sections 94(2)(a) and (b) of the Act have been satisfied by the Respondent. The Applicant contends that notwithstanding the conditions suffered by the Applicant he was not prevented from undertaking some work or a training activity for at least 15 hours per week within the relevant two year period as required by those sub-sections of the Act.
Several grounds were relied upon by the Applicant as follows to justify this contention:
(a)The Job Capacity Assessment Report of 8 July 2016 assessed the Respondent’s work capacity as 15-22 hours per week in semi-skilled employment;
(b)The Job Capacity Assessment Report of to February 2017 assessed the Respondent’s work capacity as 15-22 hours per week in a semi-skilled employment environment;
(c)On 14 October 2015, a psychologist, Ms Benton expressed an opinion that with an appropriate return to work plan it would allow the Respondent to gradually pace his work hours up to full-time. She further stated that she believed the Respondent had a capacity from a mental health perspective to return to pre-injury duties in the future and would also be capable of working from home and engaging in non-manual labour tasks such as computer based tasks which would be most appropriate;
(d)On 26 October 2015 Dr Silver gave an opinion that the Respondent was not incapacitated for work and that he could undertake any ergonomically sound activities, considering contemporary Occupational Health & Safety/ergonomic guidelines, to which he would put his mind;
(e)On 16 December 2016, Dr Epstein stated that if the Respondent was able to return to work consistent with his physical symptoms it was likely that his mental state would improve particularly if he could find suitable employment;
(f)Dr Kossman in a report prepared for the Respondent’s solicitors in his worker’s compensation claim recommended a vocational assessment.
It should be recalled that the term “training activity” is defined in section 94 of the Act to include amongst other things vocational training, vocational rehabilitation and work-related training (including on-the-job training).[37]
[37] Section 94(5) of the Act “Other Definitions” provides:
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.
The Tribunal accepts the Applicant’s contention that by reason of the facts articulated in the previous two paragraphs that the impairments suffered by the Respondent during the qualification period were not sufficient to prevent him from doing any work independently of a program of support, or undertaking a training activity, within the subsequent two years. Further, given the facts and circumstances articulated above the impairments suffered by the Respondent were not sufficient to prevent him from undertaking a training activity for two years subsequent to the qualification period. Therefore, the Tribunal concludes that the Respondent does not satisfy either of the requirements of sections 94(2)(a) and (b) of the Act.
CONCLUSION
By reason of the foregoing matters the decision made by AAT1 on 2 August 2017 will be set aside. In lieu of that decision, the Tribunal decides that the Respondent was not qualified to receive the DSP for a claim lodged on 2 February 2016 or within 13 weeks thereafter.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Robert Cameron, Senior Member

.......................[sgd].............................................
Associate
Dated: 2 August 2018

Date of hearing: 9 May 2018

Advocate for the Applicant:
Mr J Henderson

Solicitors for the Applicant: Department of Human Services, FOI & Litigation

Counsel for the Respondent: Ms J Buxton

Solicitors for the Respondent: Social Security Rights Victoria

[2018] AATA 2872

2 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	9 May 2018
Advocate for the Applicant:	Mr J Henderson
Solicitors for the Applicant:	Department of Human Services, FOI & Litigation
Counsel for the Respondent:	Ms J Buxton
Solicitors for the Respondent:	Social Security Rights Victoria