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

Gordon and Secretary, Department of Social Services (Social services second review) [2019] AATA 805 (7 May 2019)
Division:GENERAL DIVISION
File Number: 2018/2810
Re:Mrs Helina Gordon
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:7 May 2019
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that
Mrs Gordon satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of her claim.
...[sgd]..................................................................
Ms Anna Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – lumbar/cervical spine condition, left shoulder condition, right knee/leg condition, mental health condition, acquired brain injury and diabetes - whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Cases
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Secondary Materials
Guide to Social Security Law, Department of Social Services, Version 1.242 - Released 20 March 2018
REASONS FOR DECISION
Ms Anna Burke AO, Member
INTRODUCTION

Mrs Gordon (the Applicant) is seeking a Second Tier review of the decision made by Centrelink to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act). Centrelink is the service provider for the Department of Human Services.
Mrs Gordon lodged a claim for DSP on 14 October 2016. On 27 May 2017 Centrelink decided that Mrs Gordon was not entitled to a DSP as she did not meet the requirements of the Act.
The application was heard on 17 and 30 January 2019. Mrs Gordon attended the hearing by telephone, was supported by her Advocate, Ms Carroll, from Assert 4 All of Barwon Disability Resource Council, and was represented by Mr Michael Tambyln; Principle Lawyer at Social Security Rights Victoria Inc. Ms Kellie Latta of Spake Helmore appeared for the Respondent. The Applicant, Virginia O’Loughlin, psychologist, Jeanette Lees, employment consultant at APM, Jennifer Forbes, remedial massage therapist, and Samantha McMahon, Mrs Gordon’s daughter, gave evidence under affirmation and were cross-examined by Ms Latta.
THE ISSUES IN CONTENTION
The issues in contention are whether Mrs Gordon:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mrs Gordon is 56 years of age, has three adult children, and lives in regional Victoria with her husband. Mrs Gordon left school in year 11, undertaking numerous jobs before having her children. After time out of the paid workforce she returned to studies and completed a Certificate III in aged care. She commenced work in the aged care sector, leaving in 2003 when she suffered a workplace injury to her back. This injury resulted in a WorkCover claim (which was settled in 2012). In 2007 Mrs Gordon was involved in a serious motor vehicle accident and receives ongoing TAC payments.
Mrs Gordon has made several DSP claims prior to the current claim.
On 13 February 2017 Centrelink had a job capacity assessment (JCA) conducted on Mrs Gordon. The JCA report awarded her 15 points across two of the Impairment Tables, having found the following:
·the spinal disorder (chronic lower back pain) was considered to be fully diagnosed, treated, and stabilised with a moderate functional impact on activities involving spinal function; and 10 points were awarded under Table 4 – Spinal Function (Table 4) of the Impairment Tables;
·the musculoskeletal disorder other - upper limb function (left shoulder injury) was considered to be fully diagnosed, treated, and stabilised with a moderate functional impact on activities using hands or arms; and 5 points were awarded under Table 2 – Upper Limb Function (Table 2) of the Impairment Tables;.
·the musculoskeletal disorder other - Lower limb function (right knee injury) was considered to be permanent and fully diagnosed, but not treated; and therefore nil points were awarded under the Impairment Tables;
·the diabetes - insulin dependent was considered to be fully diagnosed, treated and stabilised but was well managed and having no or minimal impact on a functionality; and therefore nil points were awarded;
·the major severe depression and anxiety disorder was considered to be permanent but not fully diagnosed, treated and stabilised as a diagnosis had not been confirmed by a psychiatrist or clinical psychologist; and nil points were awarded under Table 5 - Mental Health Function (Table 5) of the Impairment Tables; and
·that Mrs Gordon had a temporary work capacity of 0 to 7 hours per week as she needed time to access further treatment to stabilise her health. (Her baseline work capacity was assessed as 8 to 14 hours per week as her functional impacts, reduced physical tolerance and psychological capabilities reduced her work capacity. However it was envisaged that within two years, with intervention, she would reach a 15 to 22 hours per week work capacity.)
On 20 December 2017, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink decision that Mrs Gordon’s total impairment rating was 15 points; comprising 10 points for spinal disorder, and 5 points for upper limb function. The ARO also found that Mrs Gordon had a continuing ability to work. The ARO stated:
I have found that your conditions of spinal disorder; musculoskeletal disorder and diabetes are permanent and can be rated under the Impairment Tables.
The report completed by Professor Richardson states that you were involved in a motor vehicle accident on 18 July 2007 whereby you sustain multiple injuries. Dr Sutherland reports that you have been diagnosed with chronic low back pain with left lower limb symptoms resulting from a work injury in 2003. Additional diagnosis include left shoulder problems, right knee injury, head injury, diabetes and depression/anxiety.
The medical evidence indicates that you have been diagnosed with lumbosacral spondylosis with symptoms that include chronic lower back pain and impaired mobility. This condition is considered permanent and can be given 10 points under Table 4 for spinal function.
In regards to the condition of musculo-skeletal disorder, the medical evidence indicates that you have had surgeries on the left shoulder, arthroscopy on the right knee and multiple surgeries on the right leg. Additional treatment has included medication, physiotherapy and massage. This condition is also considered permanent and has been given 5 points under Table 2 for upper limb function and nil points under Table 4 for spinal function.
The Job Capacity Assessor has allocated a combined score of 10 points under Table 4 for spinal function for the conditions of spinal disorder and musculo-skeletal disorder. I agree with this decision as the Impairment Tables are function-based and not condition base, with the result that only one relevant Table should be applied. Therefore, a single impairment rating is assigned to reflect the combined impairment.
The medical evidence also confirms a diagnosis of type I diabetes. The medical reports provided by Dr Sutherland have indicated that this condition is generally well managed and causes minimal impact on your ability to function. Therefore, while this condition is considered fully diagnosed, treated and stabilised, it has been given nil points under Table 1 for functions requiring physical exertion and stamina...
I have found that your condition of psychological disorder cannot be considered permanent.
The medical evidence indicates that you have been diagnosed with depression and anxiety. For the purposes of Disability Support Pension, social security law requires that diagnosis of a mental health condition is made or confirmed by a psychiatrist or clinical psychologist.
Furthermore, because the condition may improve with the treatment such psychotherapy and or medication, the psychological disorder is not generally regarded fully treated and stabilised until this takes place.
As a result, the condition of depression is not fully diagnosed, treated and stabilised and cannot be assigned an impairment rating.
On 9 April 2018 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT First Tier) affirmed the decision of the ARO to reject Mrs Gordon’s DSP claim. The AAT First Tier awarded Mrs Gordon an impairment rating of 15 impairment points, comprising 10 points under Table 4 for her spinal function, and 5 points under Table 2 for her upper limb function. The Tribunal awarded her nil points in respect of her right limb dysfunction and psychological/cognitive difficulties, as it concluded that these conditions had not been fully treated and stabilised during the qualification period. Additionally, it assessed her diabetes as having nil impact on her functionality as it was generally well managed. The Tribunal did not address the issue of whether Mrs Gordon had a continuing inability to work as she did not have the requisite 20 impairment points.
On 18 May 2018, Mrs Gordon sought a review of the AAT First Tier decision by this division of the Tribunal, stating in her application: I believe that the decision is wrong because the member didn’t take into consideration the medical evidence that was provided. In particular the evidence provided on the day of the hearing.
In accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) Mrs Gordon’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 13 January 2017 (the qualifying period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP 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;
…
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)
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.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)     whether there is corroborating evidence of the condition; and
(b)     what treatment or rehabilitation has occurred in relation to the condition; and
(c)     whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of s 6(7), reasonable treatment is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional   capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)       carries a low risk to the person.
The determinative issue in this review is whether, during the qualifying period, Mrs Gordon suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether she had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.[2]
[2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 Part 2, section 5(2))
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the program of support (POS) determination sets out a number of exemptions to the general requirements and that a person must participate for at least 18 months in cases where a person does not have a severe impairment.
Part 2—Requirements for active participation
7 Requirements for active participation
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) at the end of the relevant period, the person is participating in the program of support; and
(b) the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and supplementary T documents. Additional medical reports, submissions and statements were lodged by Mrs Gordon and her witnesses.
DOES MRS GORDON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.
The parties accept that Mrs Gordon is suffering from a lumbar spine condition, cervical spine condition, left shoulder condition, right knee/leg condition, mental health condition, acquired brain injury, diabetes, and other conditions (skin condition, haemorrhoids). Accordingly, the Tribunal finds that Mrs Gordon meets the requirements of s94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MRS GORDON HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Lumbar spine/ cervical spine condition
Mr Steven Leitl, orthopaedic surgeon, in a medico-legal report dated 13 August 2010 for Mrs Gordon’s WorkCover claim, diagnosed:
chronic pain syndrome following a soft tissue injury of the lumbar spine.
…..
[Mrs Gordon] has had variable persisting left lower back pain and left buttock pain that followed a lifting injury at work as a personal carer on 17 September 2003.
…..
a subsequent CT and MRI examination suggested that she had developed a left L4/5 disc prolapse….
Present Symptoms
Pain was sited in the left lower back, over the left sacro-iliac area and in the left buttock. Pain was constantly present and aggravated by prolonged postures/activities such as sitting for 10 minutes or walking for 300 meters. Even when she lay down pain was not relieved and was then a throbbing feeling.
Dr David de la Harp, orthopaedic surgeon, reviewed Mrs Gordon on 7 May 2012. He noted: She continues to suffer significant pain in the lumbar spine which is aggravated by all activity.
Dr James Sutherland, general practitioner, in a report to Centrelink dated 15 October 2015, outlined Mrs Gordon’s numerous conditions and the impact on her functionality. He noted
Mary had multiple debilitating symptoms around 27/01/2015. She had chronic pain, anxiety, depression, anger/frustration, constipation related to a chronic pain medications as well as hypoglycaemic reactions from her diabetes
…..
Chronic lower back pain with left lower limb symptoms. Mary sustained this from work injury in 2003.
…..
Her chronic pain is constantly present and was usually moderated to severe and impacts constantly on every day activities. For example her chronic back pain limited her ability to housework and cook meals.
The Tribunal explored the functional impact of Mrs Gordon’s impairment under Table 4 of the Impairment Tables because her accepted condition of lumber/cervical spine primarily impacts on her spine functionality. In particular, the Tribunal explored her capacity in respect of a moderate functional impact. Table 4 states:
Table 4 – Spinal Function – 10 points
There is a moderate functional impact on activities involving spinal function.
(1)       The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)     the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)   the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)   the person is unable to bend forward to pick up a light object placed at knee height; or
(d)   the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

Mrs Gordon gave evidence that during the qualifying period:
·she had to rely on her husband as her full time carer to assist her with everything, particularly getting out of bed; and that she had to sit on the edge of the bed and it took a few seconds for her to get up;
·she could not do things in the kitchen as she got pain and often dropped things;
·she could not hold a two litre carton of milk;
·she did not have a dishwasher so did not bend to stack it, and she did all her dishes by hand but not regularly;
·if she dropped something she couldn’t pick it up, so she had a stick with a clip to assist her with grabbing things that she had dropped;
·she had, and currently gets, home help to do things such as the washing. She used to be able to hang the washing on the line but during the qualifying period even a small stretch caused a stabbing pain; she’d aggravate her back and would pay the price later having to stay in bed for 2 to 3 days taking strong medication which knocks her out. Mrs Gordon still has this problem;
·she was not, and is still not, able to sit for long periods of time, and after about 15 minutes she would get fidgety as she has to find a position to get comfortable; if she attended church she sat down the back so she could stand up and down and would walk outside;
·if she drove from home in Linton to Ballarat (which is about 30 minutes away) she had to stop to take a break at the post office (midway between the two) to stretch her legs; because, during the qualifying period, she wasn’t driving her car as she was in rehabilitation because of the condition of her leg and she’s never reported that she could drive for 30 minutes;
·her home had been modified to assist her so she doesn’t have to stretch or bend to get to items around the home;
·she could not turn to the left side as it was, and still is, too painful so if she needed to talk to somebody she had to be on the right side so she could look at them face on;
·she couldn’t do, and still can’t do, overhead activities; and
·she couldn’t, and still cannot, bend to pick up a cup from a coffee table.
Mrs Gordon’s daughter, Samantha McMahon, provided a statement and oral testimony to the Tribunal that her mother lives with constant pain and her injuries affect her ability to live a comfortable and enjoyable life. Ms McMahon said that her mother cannot sit or stand for long periods of time without feeling pain or discomfort in her lower back. She said that her mother constantly readjusts the position she is sitting in and when she is out walking she stands close for support and stability.
Mr Tamblyn contended that Mrs Gordon’s spinal condition is severe and should attract a rating of 20 points under Table 4 of the Impairment Tables. He referred to the report of Mr Collyer, physiotherapist, dated 26 October 2016, which indicates this condition causes significant functional limitations in sitting, bending, lifting, driving and walking.
Additionally, Mr Tamblyn pointed to Table 4 of the Guide to Social Security Law, which indicates that:
When determining whether a person is able to undertake the activities listed under the descriptors, consideration must be given to whether the person suffers pain on undertaking the activities. For example, under the 20 point descriptor, if a person is able to remain seated for 10 minutes but suffers significant pain on doing so, it should be considered that the person is therefore unable to remain seated for at least 10 minutes.
The Respondent accepted that Mrs Gordon’s lumber spine condition was fully diagnosed, treated and stabilised during the qualifying period, accepting numerous radiological, CT and MRI scans indicating findings consistent with arachnoiditis and a disc bulge at L4/5. They contended that Mrs Gordon’s spine condition results an impairment rating of 5 points under Table 4, on the basis the Applicant has some difficulty in bending to leave level and straightening up again they argue there is no corroborating medical evidence to indicate a higher impairment rating.
Mrs Gordon’s representatives argued that her spinal function was further impaired by her cervical condition which they asserted was fully diagnosed, treated and stabilised during the qualifying period. They contended that Mrs Gordon’s workplace injury and motor vehicle accident had left her needing simultaneous ongoing treatment and attention. Mrs Gordon’s neck surgery had not been prioritised over dealing with her other conditions, which they contended did not mean the condition should not be considered fully diagnosed treated and stabilised during the qualifying period.
The Respondent accepted that Mrs Gordon’s cervical spine condition was fully diagnosed during the qualifying period accepting numerous radiological, CT and MRI scans findings. However, Ms Latta contended that Mrs Gordon’s cervical condition was not fully treated and stabilised during the qualifying period on the basis that Mrs Gordon had been advised by Mr de la Harp that she may require a two level decompression and fusion operation. The Respondent noted that Mrs Gordon had subsequently had this surgery outside the qualifying period on 17 March 2017.
The Tribunal is satisfied that Mrs Gordon’s lumber and cervical spine condition was fully diagnosed, treated and stabilised during the qualifying period; and that the condition was having a moderate impact upon her functionality. The Tribunal is satisfied that Mrs Gordon had undergone all reasonable treatment during the qualifying period to address her entire spinal condition. As she reported, and this was corroborated by her treating general practitioner, physiotherapist and massage therapist, she had moderate difficulties with sitting, bending, overhead activities, lifting, and needed to support herself to get out of a chair. The Tribunal therefore awards this condition at 10 points under Table 4 as this best reflects the functional impact of this condition during the qualifying period.
Left shoulder condition
Dr James Sutherland on 15 October 2015 noted that the Applicant has left shoulder problems and stated:
Her L upper limb function was significantly impaired by her shoulder problem… Ongoing pain and disability is expected from this despite previous surgery.
I believe Mary’s impairment would have rated at least 5 points on the table as she is Right handed and her Left shoulder is injured and had been operated on three times.
Jennifer Forbes, remedial masseuse, in a sworn statement to the Tribunal dated 22 January 2019 affirmed:
[Mrs Gordon] was referred to me in July 2006 by Dr C Head for a work-related injury incurred when working as a nurse, to the lower back involving L3-4,L4-5 and L5-S1.
Two other doctors also referred her for this same lumbar problem during the past thirteen years, Dr. Karmouche and Dr. Sutherland.
In addition to the lower back, I have seen her suffering due to three surgeries and left shoulder in 2010, 2012 and 2014 and believe she will continue to have problems the rest of her life.
She also underwent 12 surgeries for her right leg and being insulin diabetic, is lucky not to have not lost her leg.
She has suffered from knee pain for many years and continues to do so.
Her neck pain that commenced in 2007 due to a MTA, finally resulted in subsequent Cervical Spine fusion and titanium pin.
Her acquired brain damage is notable at times…
She increasingly spend days at a time in bed.
Her bright personality belies her suffering.
At the hearing, Table 2 –Upper Limb Function of the Impairment Tables (Table 2) was explored in respect of the functional impact of Mrs Gordon’s left shoulder condition, with a focus on whether or not she has a mild impairment.
Table 2 – Upper Limb Function – 5 points
There is a mild functional impact on activities using hands or arms.
(1)        The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)       picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)        handling very small objects (e.g. coins);
(c)       doing up buttons;
(d)       reaching up or out to pick up objects
Mrs Gordon gave evidence that during the qualifying period:
·her husband dressed her as she could not do up buttons or tie up shoelaces;
·she could not unscrew the lid of a bottle;
·she could not look at a computer screen as she could not look up as she gets pins and needles; and
·she could not lift heavy objects, she could not pick up a box, and her husband does all the grocery shopping.
The Respondent accepted that Mrs Gordon’s left shoulder condition was fully diagnosed during the qualifying period, accepting numerous radiological, CT and MRI scans indicating findings of a SLAP tear. However, Ms Latta contended that Mrs Gordon’s left shoulder condition was not fully treated and stabilised during the qualifying period on the basis that Mrs Gordon had been advised by Mr de la Harpe to undergo neck surgery in relation to her main problem which he believed to be left arm pain. Additionally, Ms Latta cited Mr Collyer’s report to the effect that whilst Mrs Gordon had undergone three surgical procedures for her left shoulder to date she was likely to require further surgery in the future.
Mr Tamblyn referred to previous AAT hearings for Mrs Gordon’s previous and current DSP claims, in which the various Members of the Tribunal had consistently assigned 5 impairment points under Table 2 for upper limb function for this condition.
The Tribunal notes the findings of Member Dr A Reddy:
The tribunal is satisfied the lower back pain causing limited flexibility and the left shoulder pain resulting in limited range of movement in the upper arm are conditions that were fully treated and stabilised at the time of claim and these cause a moderate impact on activities involving spinal function and a mild impact on activities using hands or arms. The tribunal concluded that these conditions rated 10 points under Table 4 - Spinal Function of 5 points under Table 2-Upper Limb Function.
The Tribunal is satisfied that Mrs Gordon’s left arm condition was fully diagnosed, treated and stabilised during the qualifying period and was having a mild impact upon her functionality, as she reported the impact and this was corroborated by her treating general practitioner, physiotherapist and massage therapist. The Tribunal therefore finds this condition at 5 points under Table 2 as this best reflects the functional impact of this condition.
Right knee/leg condition
Dr James Sutherland on 15 October 2015 noted:
Right knee injury.
Mary also injured the above joints in the car accident. She had had an earlier right knee reconstruction operation in 1996.
…
Mary had significantly impaired lower limb function as at 27/1/15. This is due to [left] lower limb referred pain (sciatica) including to her big toe. Mary complained that she had weak and painful legs and feet generally which often made walking difficult and slow. Mary said that she couldn’t perform activities other than walking. Mary’s past [right] knee operation and injury in the car accident… Around this time of27/1/15 Mary was complaining of [right] knee pain and swelling.
Associate Professor Martin Richardson, orthopaedic surgeon, wrote a medical report to Mrs Gordon’s general practitioner dated 19 December 2016, which states:
A right knee injury was followed up with Paul Plank and arthroscopic surgery was performed on 21/4/2015. I’m not quite sure what was done and that surgery but it was complicated postoperatively by an infection requiring at least six washouts and fasciotomies to the calf and multiple skin grafts and hyperbaric oxygen treatment at the Alfred.
On examination the fasciotomy wound sites have healed. Patellofemoral crepitus is noted with a positive anterior draw are consistent with a failed anterior cruciate ligament graft.
Mr Adam Collyer, physiotherapist, in a letter dated 22 November 2018, states:
Mary has asked me to provide a report regarding the current condition of right leg in support of application for the DSP. It has been an ongoing issue since her necrotising fascitis subsequent to her right knee arthroscope.
Currently she has minimal knee ROM (range of motion). She is limited to 40° flexion and can’t achieve full knee extension. Her quadriceps strength is very poor, with a 20° quadriceps lag (can’t extend against gravity) and is unable to perform a leg raise or squat.
This impacts on her ability to walk, climb stairs, sit or perform a large number of ADL’s. Travelling long distances is also very difficult. Mary finds difficult to sit for any length of time due to a painful limited knee flexion ROM.
This condition has stabilised and is unlikely to change. To properly have a total knee replacement at some stage due to advanced kne(sic) OA (osteoarthritis) caused by her infection and subsequent surgeries.
Dr Jim Sutherland, in a report stamped 10 January 2019 noted:
Mary suffered a severe right leg infection (Clostridium perfringens necrotising fascitis) following a right knee arthroscopic on the 21/04/2015…
Mary developed septic arthritis following this arthroscopy and this progressed to severe infection in the tissue of her leg and she required multiple operations including fasciotomy. She had a long admission to the Alfred Hospital. She had a long course of antibiotics. She needed later closure of the fasciotomy skin graft in February 2016 and June 2016.
Although these later closure operations improve the appearance of Mary’s leg considerably she is left with significant disfigurement. She has chronic pain and reduced function of a right knee. She has for several years been seeing a psychologist Virginia O’Loughlin for her emotional distress (including due to the above disfigurement) and a physiotherapist Adam Collier for her physical ailments including her right knee problem.
At the hearing, Table 3 – Lower Limb Function of the Impairment Tables (Table 3) was explored in respect of the functional impact of Mrs Gordon’s knee condition, with a focus on whether or not she has a moderate impairment.
Table 3 – Lower Limb Function –10 points
There is a moderate functional impact on activities using lower limbs.
(1)At least one of the following applies:
(a)       the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b)       the person is unable to use stairs or steps without assistance; or
(c)       the person is unable to stand for more than 5 minutes; and
(2)       The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3)       This impairment rating level includes a person who can:
(a)       move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)       move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note:      The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility
Mrs Gordon gave evidence that during the qualifying period:
·the pain in her knee was unbearable and she was in constant pain when sitting, driving and walking around;
·she could not walk upstairs and took them one at a time;
·when she did go out she hung onto her husband or used crutches, and often wore a knee brace; and
·she was advised she will need a total knee replacement but this cannot be done presently.
Mr Tamblyn contended that Mrs Gordon’s right knee/leg condition was a long-standing condition diagnosed first in 2011 and that her near fatal leg infection should only be taken into account in so far as it prevented any further reasonable treatment of the original condition. Another complication of Mrs Gordon’s medical condition is that she is a Type I diabetic and the accompanying risk of leg amputation from the infection. Mr Tamblyn noted that this has not been lost on Mrs Gordon and continues to traumatise her to this day. Therefore, he contended that Mrs Gordon underwent treatment until such time as it was no longer reasonable; and as this is a long-standing condition, it is reasonable that management measurements will continue.
The Respondent accepted that Mrs Gordon’s right knee/leg condition was fully diagnosed during the qualifying period and accepted this was a long-standing condition as indicated by the numerous surgical procedures and treatments which had been undertaken. However, Ms Latta contended that Mrs Gordon’s right knee/leg condition was not fully treated and stabilised during the qualifying period, in light of the significant complications and active treatment she was undergoing on her right knee and leg in 2015 and 2016.
The Tribunal is satisfied that Mrs Gordon’s right knee/leg condition was fully diagnosed, treated and stabilised during the qualifying period; and that it was having a mild impact upon her functionality, as she did have some difficulty with walking and climbing stairs. The Tribunal is satisfied that Mrs Gordon had undergone all reasonable treatment during the qualifying period to address her right knee/leg condition, as she reported, and this was corroborated by her treating general practitioner, physiotherapist and massage therapist. The Tribunal therefore awards this condition 5 points under Table 3 as this best reflects the functional impact of this condition.
Mental health condition / acquired brain injury
Mr Steven Leitl, in his report dated 13 August 2010, noted:
Over the last 18 months she has become depressed and had been put on Cimbalta, 60 mg per day and Epilim 200 mg three times a day. At one stage she had become so depressed that she had taken a knife to her wrist but it appears she had only scratched the skin surface.
Ms Louise Boin, clinical neuropsychologist, in a report of 25 September 2013, noted:
There appears to have been a significant acquired brain injury (ABI) in 2007, with 30- 60 minutes loss of consciousness and perhaps a few hours of post-traumatic amnesia (PTA). This length of time in PTA would classify the ABI as mild, although there does not appear to have been monitoring of PTA and this estimate is only based on her account. Mild ABI usually resolves to relative manageable level over months or up to a couple of years but Ms Gordon has a pattern here that indicates quite a distinct frontal deficit.
…
Her mood is of concerned and it would appear that she has chronic mental health problems. Whilst her effect appeared elevated, she reported symptoms of depression and her scores on the DASS21 were very high.
Ms Jessica van den Clark, of Ballarat Mental Health Services, in a medical report dated 6 September 2014, noted:
Upon symptom review, Helina did not reported pervasive depressive symptoms, rather, difficulties coping in relation to the impact her car accident has had on her lifestyle and physical health with ongoing concern in relation to perceive mistreatment by TAC. Stronger themes of abandonment, fluctuating interpersonal relationships and recurrent suicidal threats when there is increased distress were indicative of a potential Borderline Personality Disorder or traits.
Ms Louise Boin, clinical neuropsychologist, in a report of 19 July 2016, noted:
As described in my previous report, Ms Gordon suffered injuries in a motor vehicle accident on the 18 July 2007, with a hairline fracture of the foramen magnum, although a CT Brain on the same day did not report abnormalities. She reported disturbed memory for at least a few hours after the accident…
Differences between this assessment and the assessment conducted three years ago do not suggest brain damage but are more consistent with mood disturbance.

Dr James Sutherland on 15 October 2015 noted:
Head injury: Mary suffered a skull fracture in the car accident on 8.07.2007…
Mary’s mental health problems weren’t accepted as these were regarded as not yet fully diagnosed or stabilised. Whilst it is acknowledge that Mary’s depressive and anxious symptoms fluctuated and consequently her levels are claim fluctuated as at 27/1/2015, she had a chronic level of moderate to severe disability in my opinion. ….Mary’s mental health problems had tended to be resistant to medication as well as psychological therapy….
Mary’s mild acquired brain injury adds to her mental health problems…
In my opinion Mary has impaired judgement, impulse control, she does exhibit pressure of speech and flight of ideas with tangential thinking…
While it is agreed that further assessment with regard to clarification a diagnosis is required, I believe ongoing at least moderate disability respect to a mental health is to be expected unfortunately
Ms Virginia O’Loughlan, psychologist, in a report 1 February 2016, states:
I have been seeing [Ms Gordon] for psychological assessment and treatment related to Major Depression. Mary has been attending weekly since 18th June 2015. Initially Mary present with Adjustment Disorder and Post Traumatic symptoms (PTSD) following a severe leg infection that developed after routine knee arthroscopic in April 2015. As a result the leg infection to Mary’s right leg, Mary was placed in hyperbaric chambers at the Alfred Hospital Melbourne. Whilst Mary’s wound to her right leg (which involves skin grafts and extensive scaring from a groin to ankle) has effectively healed Mary has had further post operative complications (knee infections requiring further drainage of fluid) and still requires ongoing surgery to complete the care of her leg.
Ms O’Loughlan, in a report 29 February 2016, states:
Mary Gordon presents with depression anxiety was first diagnosed by her GP over 5 years ago. Mary continuously reports difficulty with interpersonal relationships that are strained with occasional tension or arguments. Mary also reports difficulty with concentration and task completion; Mary has difficulty focusing on complex tasks for more than 1 hour. Mary has unusual behaviours that may disturb other people or attract negative attention may sometimes be more effusive, demanding obsessive than is appropriate to the situation. As a result Mary has flagged Ballarat health services is a difficult patient. Mary also has slight difficulties in planning and organising more complex activities.
Jordan Lever, of Ballarat Mental Health Service, in a letter to Mrs Gordon’s general practitioner of 3 November 2016, states:
As discussed Mary was first heard to Ballarat Mental Health Services in acute distress by Police secondary to an argument with the local council. She later self-presented to QVB rear a Intake Assessment was complete and short-term follow-up by the BMHS arrange. Her presentation is likely a combination of adjustment disorder secondary to physical health and borderline personality traits that may impact her distress tolerance.
Since the assessment her presentation has de-escalated, commenced 30 mg Cymbalta with the option of increased to 60 mg in six weeks as recommended by Dr Anna Seneviratne. Engaged in mindfulness, sleep hygiene and basic activity scheduling.
Doctor Sonia Ghal, consultant psychiatrist, in a medical report to Mrs Gordon’s general practitioner dated 25 October 2017, notes:
On initial examination, Helina [Ms Gordon] presented as a middle-aged female who was an average build and presented with some mild psychomotor agitation and restlessness. She was generally pleasant and cooperative throughout the assessment, rapport was stabilised in speech was spontaneous with occasional increase rise and volume. She reported her mood is ‘all over the place’ and effect was [illegible]. There was nil formal thought disorder evident other than some circumstantial and significant preoccupation with Centrelink and a sense of rejection and frustration by Centrelink. Helina also commented a few times through the assessment that she is not an ‘aggressive person but an assertive one’. There seems to be significant perceived rejection, long-standing self-harm thoughts, long-standing emotional dysregulation and interpersonal difficulties. She reports passive death wishes, however denied any thoughts, plan or intent of self-harm or harm to others.
The overall chronic risk of self-harm or harm to others is moderate
Impression: borderline personality disorder with current adjustment issues due to recent stressors.
At the hearing, Table 5 – Mental Health Function of the Impairment Tables (Table 5) was explored in respect of the functional impact of Mrs Gordon’s mental health condition, with a focus on whether or not she has a moderate impairment.
Table 5 – Mental Health Function - 10 points
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.
Mrs Gordon advised the Tribunal that during the qualifying period:
·she was very stressed, even suicidal;
·she had been taken to the Ballarat psychiatric service in 2014 by her daughters who found her in a suicidal state;
·her relationships with everybody were strained including her husband and daughters because of her mental health condition. She did not like socialising and she did not like being out with other people;
·she was scared in public and could only go out when somebody was with her. She needed a person to help her attend social events and appointments. She used to attend church regularly but did not during the qualification period and no longer does so she cried a lot, she felt she had no hope, she struggled with everything, and even in October in 2016 it was all too hard to take;
·her long-term memory is fine but her short term memory is very poor that she has to write things down or she forgets them, that her husband gets cross with her because she is forever losing things she can’t remember where she put them down; she tries to write things in a diary, she cannot concentrate, then she forgets to look up what she has already written down;
·when she was working in aged care her memory was very good she could remember 190 resident names but now she can’t remember anything she has huge difficulty making decisions and coming to a resolution;
·people see her as aggressive, but she is not - she is just assertive. Ballarat Mental Health Services have called a code grey (which she described as an armed violence), and a code black (assault) because of her behaviour. The service has now flagged her as aggressive;
·at one agency where she was doing voluntary work she had been flagged as aggressive and she is not allowed to it to return for two years; and
·Centrelink have tagged her as an aggressive person and have called the police on her; again she reiterated she is not aggressive but if she is uncertain she has asked questions and if they can’t help she admits she does do ‘lose it and flip’.
Mr Tamblyn strongly argued that Mrs Gordon’s mental health issue was fully diagnosed, treated and stabilised during the qualifying period. He referred the Tribunal to Deputy President Forgie’s decision in Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558, where the Deputy President held:
Given the longstanding nature of Mrs Eid’s depression, her medication regime over the years and the counselling sessions she had between April and November 2011 without improvement, I am satisfied that Mrs Eid’s depression, however described, has been fully diagnosed, treated and stabilised at 19 December 2011. I am also satisfied that it is more likely than not to persist for at least two years.
Ms O’Loughlan provided oral testimony at the hearing that she was a registered psychologist who had been treating Mrs Gordon on a regular basis, first weekly, then fortnightly, and currently monthly, since June 2015. Ms O’Loughlan stated that it was extremely difficult to gain access to a psychiatrist in Ballarat. She said that her diagnosis and treatment plan mirrored that of Dr Ghal, the psychiatrist Mrs Gordon had eventually seen. She indicated that Mrs Gordon found it difficult to concentrate on tasks, that she goes off on tangents, and she is forever trying to get her back to the original point. She described Mrs Gordon and her functionality in the following terms:
·Mrs Gordon is quite isolated in that she “head butts” with people, can be seen to be aggressive and often has difficulty speaking with to others and reasoning with them;
·her mood is so low it impacts on her ability to care for herself and she no longer pays attention to her presentation. Over the years she has noticed that Mrs Gordon no longer wears make-up or makes an effort in her appearance;
·her inter-personal relationships are strained; because of the depression she often gets angry and short with others;
·she cannot concentrate and complete tasks;
·her planning and decision-making is impaired because of her cognitive deficiencies; she is impulsive and finds it difficult to retain information and gets very confused;
·she would not be able to participate in any work or training situation; and
·(that she noted that) Mrs Gordon had physical disabilities; and in particular, that Mrs Gordon found it difficult to get up and down the stairs at Ms O’Loughlin’s room, she struggled to sit for any length of time and was often fidgety.
Samantha McMahon, in her oral testimony, noted that her mother had a great fear that people would bump into her and aggravate her existing injuries. She observed that her mother’s mental health had worsened, particularly since her lower back injury. Ms McMahon thought her mother was suicidal and that her mother had told her she wished she hadn’t lived through the experience. Ms McMahon observed that there are plenty of days when she wonders who she is going to get when she calls her mother – she may get her very negative and sad mother or a happy mother who says life is good.
The Respondent noted that while Mrs Gordon has reported psychological symptoms for some time, she was not diagnosed by an appropriately qualified medical practitioner until after the qualifying period, when she saw Dr Ghal on 16 October 2017; one year after she lodged her claim for DSP. Additionally, Ms Latta argued that Mrs Gordon’s mental health condition has not been fully treated and stabilised, as for some time it had been recommended that she be reviewed by a psychiatrist, but this had not occurred until after the qualifying period. As such, Ms Latta contended that Mrs Gordon cannot be assigned any impairment points under Table 5 for a mental health condition.
The introduction to Table 5 states: the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a psychologist (if the diagnosis has not been made by psychiatrist).
The Tribunal applies Deputy President Forgie’s reasoning in Eid and, accordingly, finds that Mrs Gordon’s mental health condition was fully diagnosed, treated and stabilised during the qualifying period having been assessed by numerous appropriately qualified medical practitioners during the qualification period, including Ms Boin, Ms O’Loughlin and specialists at the Ballarat Mental Health Service; and their assessments being corroborated by Dr Ghal outside the qualification period.
The Tribunal finds that Mrs Gordon had undertaken and continued to take appropriate and reasonable treatment for her mental health condition. The Tribunal finds that this condition was having a moderate impact upon her functionality. As she reported, and that this was corroborated by her treating general practitioner, psychiatrist and psychologist, she had moderate difficulties with self-care, social activities, interpersonal relationships, concentration and task completion, behaviour planning, decision-making and work training capacity. The Tribunal therefore awards this condition 10 points under Table 5 as this best reflects the functional impact of this condition during the qualifying period.
Diabetes
Dr Howard Zeimer, endocrinology and diabetes specialist, noted on 16 June 2011 that Mrs Gordon was an insulin-dependent diabetic.
Dr James Sutherland on 15 October 2015 noted:
Diabetes Mellitus: Mary developed Insulin-dependent Diabetes following a car accident on 18.07.2007. TAC have accepted this claim…
Her stamina was greatly reduced as at 27/1/15. I attribute this to a combination of factors including her diabetes, chronic pain, depression, anxiety and medications needed to treat these conditions as well is a mild acquired brain injury. Her diabetes has been difficult to control including last year leading up to 27/1/15.
Mr Tamblyn contended that Mrs Gordon’s diabetes was fully diagnosed, treated and stabilised at the time of the DSP claim, and that this was confirmed by her endocrinologist Dr Zeimer. Further, he argued it is reasonable to infer that, as a chronic condition, treatment for the condition may change from time to time. This did not preclude her condition from being considered fully diagnosed, treated and stabilised; and that it was having a mild impact upon her cognitive function and stamina.
The Respondent accepted that Mrs Gordon has late onset diabetes and that this condition was fully diagnosed during the qualifying period. However, Ms Latta argued that the condition was still being actively managed during the qualifying period, including a reduction in her medication to try to stabilise the condition. Accordingly, she contended Mrs Gordon’s diabetes cannot be considered fully treated and stabilised at the time and as such no impairment rating can be assigned to this condition.
The Tribunal finds that Mrs Gordon’s diabetes was fully diagnosed, treated and stabilised during the qualifying period. It concurs with the view of her representative that, as a chronic illness, it will fluctuate over time, requiring continuous monitoring and an alteration of medication. The fact that Mrs Gordon continues to see a diabetes educator is an essential element of this condition; and is not taken by the Tribunal to mean her condition has not been fully diagnosed, treated and stabilised.
However, the Tribunal finds that this condition on the whole was, and is, well managed and the functional impacts from hypoglycaemic episodes which may impact her cognitive function or stamina have been considered in respect of her numerous conditions and rated under other tables. The Impairment Tables Determination clearly states that when two or more conditions cause a common or combined impairment, a single rating should be assigned. As such, nil points are awarded for this condition.
DOES MRS GORDON HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mrs Gordon must not only satisfy the requirement that she has impairment with a rating of 20 points or more under the Impairment Tables, she must also demonstrate she has a continuing inability to work. Mrs Gordon would be considered to have a continuing inability to work if she has actively participated in a program of support (‘POS’) within the meaning of s 94(3C) of the Act prior to her claim for DSP, and her impairment is, of itself, sufficient to prevent her from doing any work independently of a program of support.
A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal strictly applies the POS requirement, finding that no power exists to dispense with the operation of s 94(2)(aa) of the Act, and it is irrelevant whether an applicant was aware of the requirement or not.
Mrs Gordon has not been found to have a severe impairment of 20 points under a single table. Therefore, she must have participated in a POS for the requisite 18 months prior to his claim.
Ms Jeanette Lees, employment consultant at APM Ballarat, provided a statement to the Tribunal and gave oral evidence in respect of her case management of Mrs Gordon’s POS since 1 September 2016. She advised that:
There has been little or no benefit to Mary with regards to getting her employed or ready for employment in the foreseeable future. She has multiple appointments with her treating medical practitioners on a weekly basis and employers that have been approached made it known that the adjustments to the workplace, processes and staff rostering needed to accommodate Mary employment would be unreasonable and impractical for them. As Mary has more major surgery to undergo and her other conditions are permanent and not likely to improve, there is no reason to believe further participation in the DES-DMS program will be of benefit to her. The range of tasks that Mary can complete seems to be diminishing and medical issues seem to be worsening
Mary has limited computer skills and found it difficult to improve in that area. Her previous work experience in aged care with physical role which is now beyond her capabilities. This, added to her failure at learning or gaining new skills, is beyond what is offered by the DES-DMS program.
At the hearing Ms Lees further asserted that Mrs Gordon continued in the program as Centrelink had required it, but there had been no benefit from her attending; and it was not improving her employability. One of the major hurdles in dealing with Mrs Gordon was that she had a range of emotional issues; she can go “from zero to loud” very quickly, which can be quite confronting; and that this was sometimes harder to explain to potential employers than what her physical disabilities were and how they affected her.
The Respondent contended that Mrs Gordon had not completed a POS and that no exemptions under subsection 7(4) or (5) of the POS Determination applied. Ms Latta argued that Mrs Gordon had not been terminated from the POS, and was not unable solely due to her impairment to improve her capacity to prepare for, find or maintain work through continued participation in a POS.
Mr Tamblyn argued that at the time of her claim she had a continuing inability to work, was participating in a POS, although she had not completed it, and there was sufficient evidence to exempt Mrs Gordon from the POS requirements. Mr Tamblyn relied on subsection 7(5) of the POS determination, citing the evidence of Ms Jeanette Lees, employment consultant at APM Ballarat in support of his contention.

The Tribunal considered the nature and the severity of Mrs Gordon’s complex conditions and their impact on her physical and mental functions. It finds that they alone would prevent her from benefiting from a POS, as the program would not improve her capacity to prepare for or find work. The Tribunal accepts the evidence of Ms Lees, who is an expert in the field of disability employment readiness, and had been working with Mrs Gordon for a considerable period. Ms Lees’ opinion mirrored that of Mrs Gordon’s numerous medical partitioners, who also asserted she had no capacity for employment. Therefore, the Tribunal finds that Mrs Gordon, in accordance with subsection 7(5) of the POS determination, is a person who was prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in the program; and that she subsequently satisfies s 94(3C) of the Act.
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred for the purpose of assessing continuing inability to work. The Tribunal does not think an absolute preference should be expressed for either report. Rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the reporting, the writer’s relationship with the person who is the subject of the report and the reliability and depth of the analysis within the report.
Ms Jennifer Forbes testified that she had given Mrs Gordon opportunities for work at her accommodation places, but after a few different trials, of only a few hours a day, it was obvious Mrs Gordon’s back would not allow her to undertake the work, despite her increasing her medication.
Dr Sutherland indicated in his various reports that he was very surprised Mrs Gordon had not been deemed to have scored high enough on these tables to have been awarded a DSP as she had multiple physical ailments and significant mental health issues, including depression, anxiety and chronic pain.
The JCA assessment placed Mrs Gordon on a temporary work capacity as she needed time to access further treatment to stabilise her health. Time has passed since this assessment and Mrs Gordon’s health has deteriorated.
Given all these factors, the Tribunal is therefore satisfied that Mrs Gordon has a continuing inability to work.
CONCLUSION
The Tribunal is satisfied that, at the date of application, Mrs Gordon was qualified to receive the DSP as her impairments attracted 30 impairment points under the Impairment Tables based on her spinal condition attracting 10 points under Table 4 - Spinal Function, her shoulder injury attracting 5 points under Table 2 - Upper limb function, her right knee/leg condition attracting 5 points under Table 3 - Lower limb function and her depression attracting 10 points under Table 5 – Major severe depression and anxiety disorder mental health function. Additionally, she satisfies s 94(1)(c) of the Act in that she had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that
Mrs Gordon satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of her claim.

I certify that the preceding 97(ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

....[sgd]..............................................
Associate
Dated: 7 May 2019

Date of hearing:
18 & 30 January 2019

Date final submissions: 8 March 2019

Advocate for the Applicant:
Mr Michael Tamblyn

Solicitors for the Applicant: Social Security Rights Victoria

Advocate for the Respondent: Ms Kellie Latta

Solicitors for the Respondent: Sparke Helmore

[2019] AATA 805

7 May 2019

Key Legal Topics

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Administrative Law

Statutory Interpretation

Legal Concepts

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Procedural Fairness

Standing

Statutory Construction

Appeal

Remedies

Date of hearing:	18 & 30 January 2019
Date final submissions:	8 March 2019
Advocate for the Applicant:	Mr Michael Tamblyn
Solicitors for the Applicant:	Social Security Rights Victoria
Advocate for the Respondent:	Ms Kellie Latta
Solicitors for the Respondent:	Sparke Helmore