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

[2020] AATA 3733

Forte and Secretary, Department of Social Services (Social services second review) [2020] AATA 3733 (23 September 2020)

Division:GENERAL DIVISION

File Number(s):      2019/3977

Re:John Forte

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B J  Illingworth

Date:23 September 2020

Place:Adelaide

The Tribunal sets aside the decision of the Social Services & Child Support Division dated 6 June 2019 and substitutes a decision that the applicant satisfies subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 for his Disability Support Pension claim dated 9 August 2017. Subject to all other requirements of the Social Security Act 1991 being met, the Applicant is to be paid a Disability Support Pension from the date of his claim on 9 August 2017.

...................[sgnd].........................................

Senior Member B J Illingworth

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – physical, intellectual or psychiatric impairment – whether medical conditions fully diagnosed, fully treated and fully stabilised during the assessment period – whether an impairment rating of 20 points or more existed under the Impairment Tables – decision set aside and substituted with a decision that Applicant meets disability support pension qualification criteria.

Legislation

Social Security Act 1991

Social Security (Active Participation for Disability Support Pension) Determination 2014

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011

REASONS FOR DECISION

Senior Member B J Illingworth

23 September 2020

BACKGROUND

1. On 9 August 2017 Mr Forte (“the applicant”) lodged an application for disability support pension (“DSP”) with the Department of Human Services (“Centrelink”). On 25 September 2017 an employee of Centrelink rejected that claim on the basis that the applicant did not attract the required 20 points on the impairment tables. The applicant sought internal review of that decision.

2. On 14 March 2019 an authorised review officer (“ARO”) affirmed the decision and found that the applicant suffered from back pain, neck pain, knee pain, carpal tunnel syndrome, tinnitus and hearing loss, but given there was insufficient medical evidence to demonstrate that any one condition was fully diagnosed fully treated and fully stabilised the applicant’s conditions attracted a total of 0 points and he did not qualify for a DSP.

3. On 26 March 2019 the applicant applied to the Tribunal (“AAT1”) for a review of the ARO’s decision of 14 March 2019. By its decision dated 6 June 2019 the AAT1 affirmed the decision of the ARO but decided that the applicant had four conditions, each of which were fully diagnosed, fully treated, and fully stabilised, and assessed them as follows:[1]

   (a)Neck and low back pain (spinal function Table 4), 5 impairment points

   (b)Carpal tunnel and ulnar nerve symptoms (upper limb function, Table 2), 5 impairment points

   (c)Psychological condition (Table 5), 10 impairment points

   (d)Bilateral knee conditions, (lower limb function, Table 3), the AAT1 was not satisfied that the applicant met the criteria of functional impact and awarded zero points

   [1] The AAT1 did not make any findings regarding the applicant’s tinnitus and hearing loss. This condition has been considered and assessed by this Tribunal on review at paragraph [71].

4. The AAT1 therefore decided that the applicant’s total impairment rating was 20 points. However, as no one of his conditions attracted 20 points or more under a single table he did not have a ‘severe impairment’. Accordingly, to meet the entitlement for DSP the applicant was required to demonstrate that he had participated in a program of support as contained in the Social Security (Active Participation for Disability Support Pension) Determination 2014.  The AAT1 was not satisfied that the applicant had participated in the program of support as required and therefore did not have a continuing inability to work and did not qualify for the DSP and affirmed the ARO’s decision.

5. On 3 July 2019, the applicant applied for review of the decision of the AAT1.

6. The applicant was represented by Ms Riley and gave evidence by telephone from a separate room within the Tribunal.[2] The applicant called Mr Tindaro Fallo, his treating clinical psychologist, to give evidence. The respondent was represented by Ms Odgers from Services Australia.

   [2]  An arrangement put in place due to the coronavirus pandemic.

   ISSUES

7. For the applicant to qualify for the DSP he must satisfy the provisions of s94 of the Social Security Act 1991 (“the Act”) that;

   (a)he has a physical, intellectual or psychiatric impairment(s) for the purposes of subsection 94(1)(a) of the Act; and

   (b)that his impairment(s) attracts a rating of 20 impairment points according to the Impairment Tables referred to in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension 2011) Determination 2011 (“the Determination”); and

   (c)that he has a continuing inability to work; and

   (d)that if he does not have a severe impairment which is defined as a score of 20 points under a single Table, the applicant must have actively participated in a program of support as referred to in paragraph 4 above.

8. Impairment ratings are to be assessed having regard to the Impairment Tables which are found in the Determination. Those Tables contain instructions for assessing impairments with respect to nominated conditions. The condition must be ‘permanent’, which means that the relevant condition must be fully diagnosed, fully treated and fully stabilised[3] as at the date of the claim or up to 13 weeks thereafter[4] called the qualification period. The qualification period in this matter is 9 August 2017 to 8 November 2017.

   [3]  Clause 6(4) of the Determination. 

   [4]  Schedule 2, Clause 4(1) of the Administration Act. 

9. In assessing whether a condition is fully diagnosed and fully treated, clause 6(5) of the Determination provides that the following must be considered:

   (a)Whether there is corroborating evidence of the condition;

   (b)What treatment or rehabilitation has occurred in relation to the condition;

   (c)Whether treatment is continuing or is planned in the next two years.

10. A condition is fully stabilised if:[5]

    (a)The person has undertaken reasonable treatment for that condition, and it is unlikely that further reasonable treatment will result in significant functional improvement to a level enabling the person to undertake work in the next two years; or

    (b)If the person has not undertaken reasonable treatment for the condition:

    (i)such treatment is not expected to result in a significant functional improvement to a level enabling the person to undertake work in the next two years; or

    (ii)there is a medical or other compelling reason not to undertake reasonable treatment.

    [5]  Clause 6(6) of the Determination.

11. In assessing the functional impact of permanent conditions under an Impairment Table, the diagnosis of the condition must be made by an appropriately qualified medical practitioner, and there must be corroborating evidence of the person’s impairment. Self-report of symptoms alone is insufficient.

12. The applicant had not completed a program of support nor did he satisfy any exemption from the obligation of completing the program as at the date of the filing of his application for DSP. Accordingly, to demonstrate a continuing inability to work the applicant must demonstrate that he has a severe impairment in respect of any one condition. A severe impairment is an impairment that attracts 20 points or more under a single Impairment Table.

13. The Secretary accepts that the applicant suffered from both physical and psychiatric impairments and subsection 94(1)(a) of the Act is satisfied. The Tribunal agrees.

    THE APPLICANT’S EVIDENCE

14. The applicant is 58 years of age. He lives with his 21-year-old son.

15. The applicant worked in the glass industry for over 30 years, specialising in lead lighting. His work included lifting glass panels weighing between 100 and 500 kg with the assistance of others which he described as heavy and awkward work. He had a number of workers’ compensation claims which were summarised in a medical certificate by Dr Cocchiaro dated 20 November 2015 namely:[6]

    [6]   Exhibit B, page 81.

Date of injury	Injury
23 June 1994	Stress
4 March 2002	Laceration to the left forearm
6 July 2002	Effects of exposure to lead
16 January 2003	Anxiety and Stress
5 February 2008	Right knee pain
1 May 2008	Adjustment disorder with mixed anxiety and depressed mood
17 August 2009	Foreign body in the right eye
29 October 2010	Laceration to the right index finger
24 May 2011	Right carpal tunnel syndrome
14 July 2011	Right side epicondylitis
7 December 2012	Lumbar back/groin buttock STI
13 February 2013	Left ankle sprain
3 May 2013	Acute soft tissue injury left foot

1. The applicant in evidence complained of multiple work-related injuries. He said his first injury was to his right knee which occurred when he tripped on site at work. He said that he had blood in his bone and suffered a meniscus tear to his right knee. He subsequently suffered injuries to his left knee. He has undertaken both physiotherapy and hydrotherapy treatment for those conditions. He continues with hydrotherapy to date which he says best addresses his pain. The applicant said that because of his knee injury he suffered a compensating injury to his lower back.

2. He also had problems with his hands including carpal tunnel syndrome which caused him to wake up three to four times a night due to pain. He said that he has had operations to his right hand in 2015 and his left hand in 2017. He cut a tendon in his right index finger and had loss of movement in that finger for over a year. The ring finger of his left hand locked up, which required an operation in November 2019 to release the finger and return movement to his hand. He was left-handed and because of the pain he compensated by using his right hand; and when that became too painful, he would use his left hand again. After 2017 his condition worsened. He suffered darting pain into his hands. He wore braces on each hand ‘day and night’.

3. The applicant said he has suffered from anxiety and depression for a number of years. He has been under the care of clinical psychologist Mr Tindaro Fallo. He complained of issues at work and interpersonal relationships with fellow employees. He was threatened. He continues to see Mr Fallo on a regular basis and has done so from about 1991 or 1992. At the time of making his claim for DSP he was seeing him once or twice a month, but currently, because of Covid-19, he has not been seeing Mr Fallo as regularly. Further the applicant said he has been diagnosed with leukaemia and therefore he is at high risk, during the current pandemic.

4. The applicant was asked to describe a normal day at the time of the claim and during the qualification period. At that time, he said he had been taking sleeping pills because he had been diagnosed by Dr Tomich with tinnitus and hearing loss. He would wake up at 1.00am or 2.00am and take his pills. This has ceased since he has been diagnosed with leukaemia. He would get up around 9.00am - 10.00am. He would attend hydrotherapy and exercise and return home and have an hours’ sleep. Lying down provided relief to a point. He would put a pillow between his legs or sleep sideways. At the time of his claim his sleeping pattern was not good. When sitting he would sit sideways to relieve the pain and had a support pad and towel behind his back. He had problems putting on his shoes. He had difficulty lifting his leg and he now has low-cut slip on shoes which he puts on with the aid of a shoehorn. He has right knee pain when he kneels and hence, he will sit rather than kneel when dressing. If he were to stand too long on one leg it would shake, and he will become fatigued. When at work he had to kneel, and he wore pads on both knees which were provided to him. 

5. His hand conditions caused difficulty when getting dressed. It was the ‘fiddly things’ such as doing up shoelaces, that were difficult. The applicant explained that this is why he wears slip-on shoes. He was clumsy with buttons and zips were a problem. He worked out a way to assist himself, by hanging a piece of string on the zip and pulling it up.

6. In 2017 he would finish hydrotherapy and exercise to relieve pain and after lunchtime he would go shopping for about half an hour. Then he would rest and fall asleep. He would watch television, namely the news at night, but he did not follow any sport. When watching television, he would toss and turn and with the aid of a pillow would adjust the position of his legs. He said it was his hands and back that were uncomfortable. He was still driving and when sitting in the car it was uncomfortable and he had to find relief the best way he could. He did not use a computer and he did not own one. He had never been interested in reading newspapers or books. He said that he had become less active and put on weight having increased from 82 kilograms 115 kilograms but now reduced to 110 kilograms.

7. He said he did not go out. In 2017 his son was then aged 17 years of age and at school. The applicant did some housework, but it was limited and only what was necessary. He did not vacuum, and his son would do what he could not do. His sister would also come around and assist in cleaning the bathroom. The applicant would do light cleaning including after meals. He would do a little bit of cleaning each day as was necessary. He would change the bed clothes about every three to four months.

8. He showered every day which helped to get him started after which he would get dressed and then go to hydrotherapy. When driving the car, he would have trouble with his hands locking up when holding the steering wheel. He would change hands when driving. He would also drop the car keys. He had similar trouble with pens and counting money particularly notes. He used to accelerate and brake using his right foot but because of pain in his right leg he would instead brake using his left foot. He was driving about two kilometres to both hydrotherapy and shopping, eight kilometres to both his doctor and psychologist. The longest period that he continuously drove was 30 minutes.

9. He would do most of the shopping but occasionally his son would come and assist. He would walk from the car park to the shops but the longer he walked the more discomfort he felt. He would buy what he needed and would shop for about 15 minutes. He would usually buy loose potatoes. If there was a two kilogram bag he could put that in the trolley. He would buy long life milk to reduce the need to shop.

10. In the kitchen there was minimal cleaning because he was only serving meals for two people. He could not peel potatoes or cut bread, which he would buy pre-cut. Opening a can or jar was difficult, and he would get his son to help.

11. He said his son would help with his heavier laundry. The applicant said he was able to do the sheets which, because they were light, were not too bad. His son would help lift sheets onto the clothesline with one person at each end of the sheet.

12. The applicant said he was almost house bound. He had no social life including with his son. He does very little with friends and he cannot do things and feels uncomfortable socially. He may see them at Christmas. He no longer has or attends family barbecues. His entertainment is watching television, playing cards or boardgames. He does limited gardening. His hydrotherapy days are the occasion when he will see people.

13. The applicant said he has not considered retraining and when he went for personal placement, they said they could not find him work and could not help him. He referred to attending various training centres between 2013 and 2015 including periods when he was suspended from attending training. He does not own a telephone which he described as too costly and a luxury.

    MEDICAL REPORTS

    Dr Champion’s report dated 6 September 2011 – consultant physician/rheumatologist[7]

    [7] Exhibit B, page 7 – 11.

14. This report was prepared at a time when the applicant was still working. It was reported that Nerve Conduction Studies performed by Dr Frasca in May 2011[8] indicated mild to moderate right carpal tunnel syndrome and mild left carpal tunnel syndrome. Dr Champion reported similar symptoms to those which the applicant described in evidence including difficulty turning on taps dropping items, pins and needles in his hands particularly in the right-hand, cramping of hand when driving and wearing wrist splints. His right hand was reported worse than his left. He reported a laceration to his right index finger. The diagnosis was bilateral carpal tunnel syndrome, which was worse on the right than the left because he is right hand dominant.[9] Surgery was recommended to the right wrist.

    Dr Cocchiaro’s report dated 2 October 2013[10] and 7 May 2019[11] – general practitioner

    [8] Exhibit B, page 24 – 25.

    [9]  This is inconsistent with the applicant’s own oral evidence that he is left-handed. This inconsistency was not pressed by the respondent and it is unnecessary for this Tribunal to resolve it in determining this application for review.

    [10] Exhibit B, page 12 – 16.

    [11] Exhibit A, T21, pages 296 – 298.

15. The October 2013 report related to the applicant’s lumbar back, groin and buttock strain. His main injury “began on 5 February 2008 when he sustained a right knee injury”. It was also reported that he had low back injury caused by exercises and periodic mild strains attributed to the management of his knee and back problems. He had multiple strains to his left knee.

16. The May 2019 report said the applicant had several physical problems, the most significant being his low back pain causing significant disability. Dr Cocchiaro reports the condition is fully diagnosed treated and stabilised but does not relate the condition to the claim date or during the qualification period. Instead, Dr Cocchiaro refers to the condition as at ‘the time of his DSP review.’

17. Dr Cocchiaro also reported bilateral knee problems exacerbated by work and reported degenerative arthritis of both knees. He reported that the applicant is unlikely to be able to utilise his knees effectively and efficiently in jobs that he is capable of doing and at “this time” both knees are fully diagnosed treated and stabilised and will remain so for the next two years. Again, he does not refer to the claim date or qualification period, instead referring to the condition ‘at the present moment.’

18. In referring to his depressive anxiety condition and chronic leukaemia he also opined that the applicant’s conditions are fully diagnosed treated and stabilised, but again does not refer his diagnosis to the date of the claim or the qualification period.

19. Dr Cocchiaro referred to Table 2 for severe functional impact on activities using hands or arms as a result of bilateral carpal tunnel syndrome and ulnar nerve dysfunction. He opined that the applicant had limited movement and coordination in both arms and finds it difficult to handle, move or carry objects because of pain and tenderness and weakness in both his wrists and elbows. He said the applicant had significant difficulties using computer keyboards because of his limited intellectual capacity, and also had some difficulty using a pen and pencil.

20. In referencing Table 4 Dr Cocchiaro, opined that the applicant has significant limitations of his spinal function because of degenerative changes in his cervical spine. He said the applicant has difficulty performing overhead functions, cannot turn his head or bend his neck without severe pain and discomfort, has significant limitations and cannot remain in one position for more than 15 minutes.

1. This report does not assist the Tribunal in determining the applicant’s entitlement to DSP in this case because it assesses the applicant’s conditions outside of the relevant qualification period, namely 9 August 2017 to 8 November 2017.

   Dr Guirguis’ report dated 14 October 2013 – Orthopaedic surgeon Report[12]

   [12] Exhibit B, page 17 – 22.

2. This report dealt with the applicant’s right knee, bilateral hand carpal tunnel syndrome and lumbar spine complaints. Under heading Assessment and Opinion, the only MRI scan of the right knee was taken in March 2008 which demonstrated extensive bone bruising which it was expected would, by the time of report, have resolved. There was residual tenderness and the right quadriceps muscle group was significantly reduced in bulk compared to the left which was indicative of muscle inhibition. The exact status of the pathology of the right knee was not clear and a further MRI scan was recommended. In relation to the bilateral carpal tunnel syndrome it was reported that the applicant continued to report ulnar nerve symptoms but with no clear indication of ulnar nerve compression or neuropathy. Nerve conduction studies taken in May 2011 reported normal ulnar nerves. In the clinical examination no residual abnormalities in either hand was revealed albeit nerve conduction studies reported mild median nerve compression in both hands. As for his lumbar spine it was opined that he suffered a facet joint strain which would be assisted by weight reduction and exercise.

3. The applicant reported grievances against his employer and management dating back to 2009 which culminated in suspension and termination of employment. He was receiving psychological counselling but had not been placed on psychotropic or antidepressant medication.

4. Further investigation of the right knee was recommended including surgical opinion and investigation of his lumbar spine. It was suggested the applicant may consider undergoing facet joint injections and rhizolysis [13] if required.

   Dr Sach’s reports dated 1 October 2014[14] and 24 July 2014[15] – Plastic and reconstruction hand surgeon

   [13] A procedure involving an injection close to the nerve coming from the facet joint of the lumbar spine and the use of radiofrequency stimulation.

   [14] Exhibit B, page 26 – 28.

   [15] Exhibit B, page 23.

5. The applicant was diagnosed with right ulnar nerve neuritis which Dr Sach opined would appear to be restricting his work and social activities. It was not related to his previous carpal tunnel surgery or injury. It was proposed that he have an endoscopic release of the ulnar nerve at the elbow. He had previously had a left endoscopic carpal tunnel release with significant improvement in symptoms and tingling sensations had settled. In referencing the nerve conduction study, it was reported the applicant continued to drop objects, had numbness in the right-hand particularly in the morning, and experienced cramp in his hands and fingers.

   Dr Tomich’s report dated 17 August 2016 – Otorhinolaryngology[16]

   [16]  Exhibit B, page 29 – 30.

6. The applicant presented with a four-year history of hearing and sleep disturbing tinnitus which he alleged was exacerbated by work stress. Both ears appeared normal, but some hearing loss was observed. It was opined that he had noise induced hearing loss attributed to industrial noise. Dr Tomich opined that the applicant would benefit from the fitting of a hearing aid.

   Job Capacity Assessment Reports[17]

   [17]  Exhibit A, T11 pages 144 – 185.

7. These reports date from 2013 to 2018. In 2013 he was assessed for the bilateral carpal tunnel syndrome which was considered permanent. His knee condition was regarded as temporary and he suffered from stress which was also a temporary condition but likely to persist.

8. The 2014 report again dealt with those conditions. As to his bilateral carpal tunnel syndrome it was reported numbness of hands, weakness and cramping, numbness of the right and left ring and little fingers. He wore a night splint on his right hand and a special right-hand splint for work. As for his knee injury he was seeing a physiotherapist monthly and had hydrotherapy and gym twice a week. In respect of his work-related stress he was unable to focus and was seeing a psychologist weekly and taking Oxazapam to assist with sleep and stress. It was reported for the first time that he was also suffering from lower back pain which was impacting upon his physical ability including difficulty sitting.

9. The April 2016 report said that the carpal tunnel syndrome was continuing with the reported conditions having been treated with surgery in 2013. He still experienced similar difficulty with both hands particularly at night and he continued to wear a right-hand brace and also now a left-hand brace. It was noted he was ‘able to lift up to 20 kilograms (in some positions).[18] As for his stress condition he was still seeing a psychologist weekly and continued with his medication. His various conditions were regarded as fully diagnosed but not fully treated and fully stabilised.

   [18]  Exhibit A, page 159.

10. The September 2016 report referred only to his musculoskeletal disorder and carpal tunnel syndrome which were said to be fully diagnosed but not fully treated and fully stabilised.

11. The July 2017 report referred to previous reports by the applicant of knee weakness, leg shakes with activities and pain and limited ability to kneel. Other complaints with sitting and worsening back pain were reported. He could stand for 30 minutes alternating his position and could sit for 10 – 15 minutes. The reported difficulties with driving were consistent with the applicant’s evidence. He was attending hydrotherapy three to four times a week and he was taking Panadol, anti-inflammatory medication, Voltaren gel and sleeping tablets. In respect of his carpal tunnel condition and also under heading “shoulder and upper arm disorder” reference is made to a medical certificate dated 29 June 2017 from Dr Cocchiaro which said that the applicant has left arm numbness and the need for surgery on his left arm-hand. The applicant reported needing surgery on his left ulnar nerve, and he was on the Queen Elizabeth Hospital surgery waiting list. He was assessed as having likely improvement in the next six months in his left arm following surgery. There was report of tinnitus but there was not reference to his psychological condition.

12. In the October 2018 report reference is made to a medical certificate of Dr Cocchiaro dated 13 September 2018 that the applicant had left arm surgery and was still recovering and required further surgery. He is reported as having been diagnosed with Leukaemia (Chronic) and having appointments with a haematologist. Without specifically reporting on his mental health condition an additional comment said that the applicant lived with his son and was seeing a psychologist for many years to cope with depression and stress related to his health.

    Mr Tindaro Fallo’s reports dated 12 February 2009,[19] 8 May 2019,[20] and 13 November 2019[21] – Clinical psychologist

    [19]  Exhibit B, page 1 – 6.

    [20]  Exhibit A, page 299 – 300.

    [21]  Exhibit B, page 83 – 84.

13. Mr Fallo opined in the 2009 report that the applicant was suffering from an adjustment disorder with anxious and depressed mood, but he was then currently symptom-free because of the absence of contact with his employer. The applicant had reported victimisation, intimidation, bullying and harassment by the supervisors. He needed assistance to resolve workplace stressors, but Mr Fallo considered the applicant’s prognosis was very good provided workplace issues could be resolved.

14. In the May 2019 report, he said that the applicant reported a long history of experiences of intimidation, harassment and bullying by his employer following a knee injury in 2008. He opined that the applicant was suffering from Chronic Adjustment Disorder with Anxious and Depressed Mood causing clinically significant impairment in social and occupational functioning. The applicant presented with “debilitating obsessional traits and personality defects including interpersonal difficulties due to excessive guardedness, fearfulness, suspiciousness, heightened sensitivity to others and reclusiveness.” He further opined that the applicant felt easily threatened and harassed even by minor intrusions into his personal life. Mr Fallo considered that in August 2017 his condition was fully diagnosed fully treated and unlikely to change over the following two years, having exhausted all reasonable treatment and that it was unlikely to improve with further treatment.

15. In November 2019, Mr Fallo reported that the applicant had consulted him regularly since November 2008 and since November 2016 he had seen him on 32 occasions. He opined that the applicant was suffering from chronic adjustment disorder with anxious and depressed mood which was causing clinically significant impairment in social and occupational functioning and is very likely to worsen in any workplace. He presented “with debilitating obsessional traits and personality deficits leading to interpersonal difficulties due to excessive guardedness, fearfulness, suspicions, heightened sensitivity to others and reclusiveness.” He repeated that the applicant feels easily threatened and harassed by minor intrusions into his personal life causing clinically significant distress and impaired occupational functioning. Mr Fallo reported that the applicant neglects self-care, and his living conditions are very poor which has resulted in divorce and estrangement from his children.

16. Mr Fallo reported that he did not believe the applicant had any friends, nor that he sought companionship and avoided social interactions wherever possible. He was unable to follow or complete tasks without considerable anxiety. He then reported:[22]

    “His capacity to plan, make decisions and cope with stress or performance demands is severely impaired. He is disorganised and is unable to problem solve without considerable support and advocacy… The impairment is severe and highly unlikely to change in the foreseeable future.”

    [22]  Exhibit B, page 84.

17. Mr Fallo reported that the applicant received:

    “regular cognitive behavioural stress and anxiety management to help cope with stressful situations. However, due to deeply entrenched and ego-syntonic personality factors, Mr Forte has not improved. In August 2017, Mr Forte’s condition was fully diagnosed, fully treated and unlikely to change over the following two years. His condition was severe and impaired him from employment and job seeking activities. He had exhausted reasonable treatment available to him and is unlikely to improve with further treatment……and could not work for 15 hours per week and this remains the case today”.

    MR FALLO’S EVIDENCE

18. Mr Fallo said he was first consulted by the applicant in the 1990s, then again in 2004 for a short period and then once again in 2008 and thereafter regularly for six years. The applicant reported being bullied and victimised at work.

19. After a break in consultation he saw the applicant 10 times per year through Medicare and so in 2017 and 2018 he saw him for a total of approximately 20 occasions. The applicant consulted him under a mental health care plan.

20. In the period 2016 to August 2017 Mr Fallo said the applicant had issues with problem-solving, anxiety, stress management, dealing with stressful circumstances and developing strategies to deal with personal day-to-day life such as paying a bill or dealing with an overpayment. The applicant required assistance in all day to day functions. Whenever he had a problem his condition worsened, and he always had problems.

21. Mr Fallo would help the applicant manage his problems and think through them. He said that the applicant would easily be caught up with his problems and he was incapable of coping in a workplace. He lives in the past, is unable to let go and has difficulty communicating with others. He said the applicant had become reclusive, isolated with no mobile phone. He is so private that it attracts attention. He can become stuck and this will cause tension in the workplace. He then becomes agitated, unclear, unable to problem solve, distances himself, and becomes withdrawn anxious and further agitated.

22. Mr Fallo described the applicant’s presentation as pleasant and ‘smiley’ but this presentation masks his difficulties such as dealing with something new. He always presents in the same clothing and is unable to explain what he did daily.

23. Consistent with the diagnosis of depressive anxiety adjustment syndrome, he does not trust anyone and will not open to anyone except Mr Fallo.

24. In referring to the AAT1 assessment of the applicant’s Table 5 Mental Health Function Mr Fallo was asked to comment. He explained that what was missing in the assessment was an understanding of his personality and how debilitating it is. Mr Fallo said the applicant is good at what he does in his own way but his personality is very complex. When asked from a mental health perspective ‘was the applicant able to work from August 2017 onwards’, Mr Fallo said he encouraged the applicant to work for himself, but he cannot organise himself. He has no business literacy. He said an employer needs to be patient with him, understand him and be helpful. His former employer forced him to do work that was debilitating, and he had difficulty in the workplace and the people he was working with. His work therefore deteriorated.

25. Mr Fallo said the applicant had “zero ability” to study, his learning ability was poor, and he reads poorly, even basic reading.

26. In cross-examination Mr Fallo was referred to his diagnosis of Adjustment Disorder with Anxiety and Depressed Mood referred to in his 2009 report. He accepted that at that time the applicant’s condition was not severe. He could function well at home but not at work. Away from work he was more settled and doing relatively well. He confirmed that at that time his prognosis was very good provided that the workplace stressor could be resolved. However, he stopped work in 2013, and in the intervening time he showed no improvement albeit Mr Fallo saw him fortnightly. The applicant was still suffering from his physical injury and was also concerned about his exposure to lead, a blood condition and carpal tunnel syndrome. His injuries were disputed by his employer and that dispute together with those injuries were also stressors on his mental health. In 2009 he would have been optimistic about his prognosis if the workplace supported him, but he was not able to achieve the environment to allow him to work.

27. Mr Fallo was then taken to the job capacity assessment reports of April 2014 and April 2016. In reference to the former it is reported that the applicant was seeing a psychologist weekly which helped and that he was taking Oxazapam to assist with sleep and stress. Mr Fallo did not specify the quantity of drugs prescribed but said the applicant would be too frightened to take it. In the latter report two years later, it again refers to him seeing a psychologist weekly. Mr Fallo said that after the supported 10 sessions per year under Medicare he would only see the applicant for short periods within a given year.

28. Mr Fallo said that he did not think the medication would help the applicant and the issue related to his personality problems. He said that he had not seen this type of personality before. The applicant was private and reclusive, and he lives as a recluse. He had no capacity for relearning. He cannot use a phone, or a computer and he does not know if he could even use a remote for a television. In terms of cognitive function, he said in ‘his world’ the applicant would function well and if he lives the life he enjoys it is not an impediment. He has an excellent memory for past events but no memory for the present. Mr Fallo said that the applicant could spend hours doing lead lighting or drawing but he would take a year to complete a task instead of the usual month. He explained that in his space the applicant is mentally good but take him out of his space and he would deteriorate.

29. The Tribunal asked Mr Fallo to explain the applicant’s anxiety and depression at 9 August 2017 and during the qualification period. He said he would worry and ruminate, had poor sleep, would focus on his pain, was unable to do things for himself, was very guarded and suspicious of people. He did not want to engage with anyone, felt threatened and attacked, and he would perceive a letter to him or an expression of an expectation as being an attack upon him. He said there was an element of paranoia. He felt persecuted.

30. The Tribunal then asked Mr Fallo about the applicant’s capacity to live independently at that time. He described the applicant as unkempt and always looked like as if he had been at work. His car was woeful and neglected. His home was run down with no driveway. Mr Fallo said that the applicant cannot keep things in good order. And he had suggested to the applicant that he move to a smaller home. He did not take that advice.

31. Mr Fallo said that the applicant’s condition had not improved since August 2017. His marriage fell apart approximately seven to eight years ago and he is now a very private person. The applicant enjoyed a good relationship with his son.

32. In cross-examination Mr Fallo was taken to Table 5 – Mental Health Function. He said that on a good day he met criteria of 20 points – severe functional impact on activities involving mental health.

    CONSIDERATION

33. The applicant was a reliable witness who did his best in giving evidence to assist the Tribunal. However, he had some difficulty articulating the status of his various medical conditions at the time of the claim for DSP and during the qualification period.

34. Much of the medical evidence before the Tribunal was of historical relevance. Various conditions have been fully diagnosed but there was a lack of evidence that certain conditions had been fully treated and fully stabilised particularly as at the time of the claim.

35. Such was the case with respect to his bilateral knee conditions. The Tribunal accepts this condition was fully diagnosed, but there was a lack of evidence assisting the Tribunal in whether the conditions were fully treated and fully stabilised at the time of the claim or during the qualification period. As the AAT1 observed, there was an MRI of the applicant’s right knee dated 12 March 2008 but no evidence of further report or investigation and treatment of that condition from which an assessment could be made that it was fully treated and fully stabilised in the qualification period. The report of the treating general practitioner, Dr Cocchiaro, was directed to the date of the report namely 7 May 2019 and not to the date of the claim and did not assist the Tribunal. Hence the Tribunal is not satisfied that the applicant is entitled to an assessment of an impairment pursuant to Table 3 – Lower Limb Function.

36. This was also the case with respect to the applicant’s tinnitus and hearing. The evidence was insufficient. Dr Tomich in his report of August 2017 said the applicant suffered from work induced hearing loss and would benefit from the fitting of an appropriate hearing aid, and a course of speech reading, but there was no evidence that this had ever occurred. Hence although fully diagnosed, this condition was not fully treated and fully stabilised at the time of the claim or during the qualification period and accordingly the applicant is not entitled to an assessment of an impairment pursuant to Table 11 – Hearing and other Function of the Ear.

37. Similarly, with respect to the applicant cervical and low back condition, the report of Dr Cocchiaro dated 7 May 2019 when viewed against the applicant’s other medical history enables the Tribunal to be satisfied that the conditions were fully diagnosed. He was receiving treatment including hydrotherapy over many years for these conditions. But the evidence is unsatisfactory in assisting the Tribunal to be satisfied that the condition was fully treated and fully stabilised at the time of the claim or during the qualification period. The evidence of the applicant was too general and was lacking in specificity directed to the relevant time period. Accordingly, the applicant is not entitled to an assessment of an impairment pursuant to Table 4 – Spinal Function.

1. In respect of the bilateral carpal tunnel syndrome and ulnar nerve compression, the Tribunal is satisfied that this condition was fully diagnosed. There has been a long history of the applicant suffering from this bilateral condition and he has had numerous operations. It is noteworthy that in 2017 he was reported to be on the waiting list for surgery at the Queen Elizabeth Hospital with improvement in his condition anticipated over the next six months.[23] In September 2018 he was reported to be recovering from an operation to his left hand.[24] Hence the Tribunal is not satisfied that the bilateral carpal tunnel syndrome and ulnar nerve compression conditions were fully treated and fully stabilised at the time of the claim or during the qualification period and he is not entitled to  an assessment in accordance with Table 2 – Upper Limb Function.  

   [23]  Exhibit A, page 175 – 178.

   [24]  Exhibit A, page 181.

2. In considering the applicant’s claim with respect to his psychological condition, the Tribunal had before it significant additional evidence that was not be for the ARO and AAT 1, namely Mr Fallo’s report dated 13 November 2019 together with his oral evidence. Mr Fallo was an impressive witness who provided insightful and informative evidence that gave the Tribunal a greater understanding of the difficulties faced by the applicant in his day-to-day activities. The Tribunal accepts Mr Fallo’s evidence which for the large part was not disputed by the respondent.

3. The applicant has been regularly consulting Mr Fallo since November 2008 and his psychological condition of Chronic Adjustment Disorder with Anxious and Depressed Mood has been well documented in reports dating back to February 2009. The Tribunal is satisfied that his psychological condition has been fully diagnosed for many years.

4. It is also apparent that despite the initial optimistic prognosis for the applicant’s psychological condition, his mental health did not improve and indeed deteriorated. Hence from the time of the filing of his application for DSP to date, his mental health has remained the same.

5. The Tribunal has summarised Mr Fallo’s reports and evidence and will not repeat it at length. However, there are aspects of the applicant’s personal circumstances and lifestyle at the time of and following the filing of his application for DSP which bear repeating. The applicant suffered and continues to suffer debilitating obsessional traits, personality defects and inter personality difficulties due to excessive guardedness, fearfulness, suspiciousness, heightened sensitivity to others and reclusiveness. Mr Fallo said the applicant feels easily threaten and harassed even by minor events. His condition caused clinically significant impairment in social and operational functioning which would likely worsen in any workplace. He has no friends and has not sought companionship and avoids social interaction where possible. He is unable to complete tasks without considerable anxiety. His capacity to plan, make decisions, cope with stress or performance demands is severely impaired. He is disorganised and unable to problem solve without considerable support and advocacy. His condition is unlikely to change in the foreseeable future. He is a recluse, isolated with no mobile phone. He has no computer and would likely be unable to use one if he did. He cannot organise himself and he has no business literacy. He was unable to study and his learning and reading ability was poor. He stopped work in 2013 and has shown no improvement in his condition. The applicant always looked unkempt and his car and home were run-down and neglected. Mr Fallo said there has been no improvement in his condition since 2017.

6. The Tribunal agrees with Mr Fallo’s opinion that at the time of filing the application for DSP the applicant’s psychological condition was fully diagnosed, fully treated and fully stabilised and accordingly he can be assessed under Table 5 – Mental Health Function which has the following descriptors for 5, 10, 20, and 30 impairment points:–

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 or 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 requires intervention by a supervisor, manager or teacher or changes in placement or groupings.

10

There is a moderate functional impact on activities involving mental health function.

(1)      The person has moderate difficulties with most of the following:

(a)      self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)      social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.

Example 2:  The person will often refuse to travel alone to unfamiliar environments.

(c)      interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)      concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).

Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)      behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.

Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).

Example 3: The person’s activity levels are noticeably increased or reduced.

(f)       work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

20

There is a severe functional impact on activities involving mental health function.

(1)      The person has severe difficulties with most of the following:

(a)      self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)      social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)      interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)      concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)      behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

30

There is an extreme functional impact on activities involving mental health function.

(1)      The person has extreme difficulties with most of the following:

(a)      self care and independent living;

Example 1: The person needs continual support with daily activities and self care.

Example 2: The person is unable to live on their own and lives with family or in a supported residential facility or similar, or in a secure facility.

(b)      social/recreational activities and travel;

Example: The person is unable to travel away from own residence without a support person.

(c)      interpersonal relationships;

Example: The person has extreme difficulty interacting with other people and is socially isolated.

(d)      concentration and task completion;

Example 1: The person has extreme difficulty in concentrating on any productive task for more than a few minutes.

Example 2: The person has extreme difficulty in completing tasks or following instructions.

(e)      behaviour, planning and decision-making;

Example 1: The person has severely disturbed behaviour which may include self harm, suicide attempts, unprovoked aggression towards others or manic excitement.

Example 2: The person’s judgement, decision-making, planning and organisation functions are severely disturbed.

(f)       work/training capacity.

Example: The person is unable to attend work, education or training sessions other than for short periods of time.

1. The Tribunal is satisfied that the applicant has severe difficulty with most of the functional activities in Table 5. In considering self-care and independent living the applicant generally appears unkempt. In matters of hygiene it is noted that the applicant has changed bed clothes every three to four months. He is highly reliant on the support of his son. Insofar as (1) (b) – (f) are concerned, having regard to the evidence of Mr Fallo to which I have referred, those severe functional impacts are clearly articulated and do not need repeating. That evidence is accepted.

2. Accordingly, the Tribunal awards the applicant 20 points for his Mental Health Function.

3. Further the Tribunal is satisfied that the applicant had a continuing inability to work pursuant to subsection 94(2) of the Act as at the date of the filing of his application for DSP which is continuing.

   DECISION

4. The Tribunal sets aside the decision of the Social Services & Child Support Division dated 6 June 2019 and substitutes a decision that the applicant satisfies subsections 94(1)(a), (b) and (c) of the Social Security Act 1991 for his Disability Support Pension claim dated 9 August 2017. Subject to all other requirements of the Social Security Act 1991 being met, the Applicant is to be paid a Disability Support Pension from the date of his claim on 9 August 2017.

83.     I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.....................[sgnd].......................

Associate

Dated: 23 September 2020

Date of hearing:	7 May 2020 (by telephone)
Advocate for the Applicant:	Ms M Riley
Advocate for the Respondent:	Ms L Odgers, Services Australia