Graham and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 650
•12 September 2013
[2013] AATA 650
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4212
Re
Shane Graham
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 12 September 2013 Place Sydney The decision under review is set aside and a decision substituted that Mr Graham satisfies s 94(1)(a), (b), and (c) of the Social Security Act 1991 and, subject to meeting other eligibility and payability requirements, is qualified for a Disability Support Pension.
.....................[sgd]...................................................
Deputy President RP Handley
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant’s conditions fully diagnosed, treated and stabilised – applicant’s psychiatric condition fully diagnosed, treated and stabilised – decision under review set aside
LEGISLATION
Social Security Act 1991 s 94
Social Security (Administration) Act 1999 sch 2, cl 4
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President RP Handley
12 September 2013
Mr Graham (the Applicant) has applied for a review of a Social Security Appeals Tribunal (SSAT) decision affirming a decision made by a delegate of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent) rejecting Mr Graham’s claim for a Disability Support Pension (DSP).
BACKGROUND
Mr Graham is aged 37 years. He is currently receiving a Newstart Allowance. He previously worked as a truck driver but has also held various other positions.
On 21 March 2012, Mr Graham lodged a claim for a DSP in respect of three dislocated vertebra in his lower back, panic attacks, anxiety, bipolar disorder, schizophrenia, and confusion. A Medical Report of the same date from a treating doctor, Dr D Begum, Psychiatric Registrar at Campbelltown Hospital, diagnoses “1st episode Psychosis” with a date of onset of 4 July 2011. A Job Capacity Assessment Report was completed on 5 April 2012 by a registered psychologist, P Chetty, following an assessment on the previous day. In her report, the Assessor assessed Mr Graham’s psychiatric condition as being permanent and fully diagnosed but not fully treated or stabilised because ongoing treatment with the local Mental Health Service may assist in stabilising the condition. The Assessor also found that Mr Graham has a history of low back pain but noted that no medical information had been provided. The Assessor found that Mr Graham had a temporary work capacity for 0 to 7 hours per week for the following year, a baseline work capacity of 8 to 14 hours a week, and a capacity for work with intervention of 15-22 hours per week within two years. Mr Graham’s application for DSP was subsequently rejected on 12 April 2012.
On the same day, Mr Graham requested a review of the rejection decision, and, on 13 April 2012, lodged a medical certificate of that date from Dr BR Dogra, General Practitioner (GP), stating that Mr Graham suffers from “Schizophrenia with bipolar”. On 28 May 2012, an Authorised Review Officer affirmed the decision to reject Mr Graham’s DSP application and Mr Graham sought a further review by the SSAT. He provided a further report from Dr Begum dated 4 July 2012 in which Dr Begum noted a first admission to Liverpool Hospital for a psychotic episode in 2008.
On 29 August 2012, the SSAT decided to affirm the decision. The SSAT accepted that Mr Graham suffers from schizophrenia but said that at the relevant time his condition had not been fully diagnosed. On 19 September 2012, Mr Graham lodged an application for a review of the SSAT decision by the Administrative Appeals Tribunal.
On 6 May 2013, a further Job Capacity Assessment Report was prepared in respect of Mr Graham following a file review on 29 April 2013. The Report identifies two conditions: a psychiatric disorder and a spinal disorder. The latter was found to be fully diagnosed but not fully treated or stabilised at the date of claim and in the 13 weeks thereafter. The former was found to be neither fully diagnosed nor fully treated and stabilised. However, the Report found that Mr Graham’s capacity for work within two years with intervention was only 8 to 14 hours per week.
RELEVANT LAW AND ISSUES
Section 94 of the Social Security Act 1991 (Cth) (the Act) states relevantly that:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
…
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and
(a) in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases--either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
…
(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b) the availability to the person of work in the person’s locally accessible labour market.
…
(3B) A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Work is defined in s 94(5) as follows:
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
The relevant Impairment Tables are those in effect at the time Mr Graham made his claim, which are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Impairment Tables”).
The Impairment Tables contain rules for applying the Tables. Paragraph 6 states relevantly:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note: For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent see subsection 6(4).
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c) the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Schedule 2, clause 4(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) requires that Mr Graham’s qualification for DSP be assessed as at the date he made his claim for DSP or in the 13 week period following the claim. His claim was lodged on 21 March 2012. The relevant period, therefore, is 21 March 2012 to 20 June 2012.
The Respondent accepts that Mr Graham suffers from a psychiatric condition and lower back pain, thereby satisfying s 94(1)(a) of the Act. At issue is whether his impairments should attract an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)) and, if so, whether Mr Graham has a continuing inability to work (s 94(1)(c)). However, the Respondent states that if the Tribunal finds, first, that Mr Graham’s psychiatric condition is fully diagnosed, treated and stabilised so that an impairment rating can be attributed to the condition under Table 5 – Mental Health Function, and second, that Mr Graham’s psychiatric condition should be accorded an impairment rating of at least 20 points under that Table, then the Respondent accepts that he has a continuing inability to work. As noted above, the Job Capacity Assessment Report dated 6 May 2013 found that Mr Graham’s capacity for work within two years with intervention was 8 to 14 hours per week, less than the 15 hours per week required by the definition of ‘work’ in s 94(5) of the Act.
MR GRAHAM’S CASE
Mr Graham said he last worked two years ago, in July 2011 but then “things broke” and he started hearing things and went to hospital. He and his partner, Tanya Ogle, have been together for about six and a half years, since early 2007. Mr Graham said he had his first psychotic episode not long after they met. He had hospital treatment but was later able to go back to work after about a week. At that time, he had treatment from a psychologist but no medication. When he had another episode two years ago, it was much worse. He was hospitalised at Waratah House, the adult mental health unit at Campbelltown Hospital. After being released from hospital after nine days, Mr Graham was under the care of the Campbelltown Community Mental Health Service and treated by psychiatry registrars Dr F Shah and Dr D Begum. The Tribunal has been provided with a copy of Community Mental Health Service’s Clinical Notes covering the period 19 July 2011 to 5 December 2012.
Mr Graham said he missed an appointment with a doctor at the Community Mental Health Service and is waiting to get another appointment. He is currently taking medication prescribed by his General Practitioner, Dr Dogra: Risperidone 4 mg (one tablet) at night, Ativan 2.5 mg (one tablet) at night, Benztrop half a tablet morning and night and, for back pain, Panadeine Forte – two tablets six hourly as needed. Mr Graham said he was trialled on Seroquel but “this did nothing” and so he went back on Risperidone which he takes regularly. He said his medication is very expensive but does very little for his condition: he still suffers panic attacks, anxiety and gets very emotional. At times during the hearing, Mr Graham said he had difficulty concentrating because of the noise in his head.
Mr Graham said there has been no real change in his psychiatric state over the past two years. He described the symptoms of his schizophrenia as not knowing what is real and hearing voices in his head. The bipolar symptoms are the strong ‘ups and downs’ that he suffers. The anxiety and panic attacks that he suffers have remained the same. He said his psychological state is “unbearable” – it is like he is “waiting to die”. He does have some good days but then it all comes crashing down again. He has difficulty coping. When he has to make decisions, he gets confused and stressed out – even a decision as to what clothes he wears. He keeps three track suits at home for daily use during winter so that he does not have to make a decision.
In answer to questions in cross-examination, Mr Graham said he gave up smoking and using marijuana two years ago but he sometimes has a glass of wine at night. He was asked about a suggestion by Dr Begum (clinical note dated 9 May 2012) for a referral and voluntary admission to an anxiety clinic. Mr Graham said he did not want to be admitted for treatment. When he was last in hospital, he did not want to be there: he was afraid for his life – he thought “they” might be feeding people there who could not fit into society to vampires.
Ms Ogle said Mr Graham can barely get dressed in the morning without her making a decision for him. It is very hard to motivate him to do anything and he has great difficulty leaving the house. Ms Ogle works, but Mr Graham’s medication, which she pays for, is very expensive and they are struggling financially. They cannot afford to start a family. Mr Graham said he cannot afford to see a psychiatrist. Even getting a report from Dr Dogra costs $270, which meant they had to forgo other necessary spending.
With regard to his back problem, Mr Graham said this has been troubling him since about 2003. He has an L4/5 disc protrusion which is pressing on his nerve. He takes Panadeine Forte for this as needed – using a pack of 50 tablets about every two months. He said the journey to the Tribunal hearing by train took about an hour and he found the seats made his back “hurt like hell” – he did not cope very well. He cannot sit or stand for too long. While he sat through the hearing, he said he had been “squirming” in his seat. Walking is “OK” and he needs to walk to maintain musculature to support his back.
THE RESPONDENT’S CASE
Ms Maclean, for the Respondent, contended that Mr Graham’s psychiatric condition has not been fully diagnosed, treated or stabilised. He requires a diagnosis from a psychiatrist. She noted that the SSAT Member spoke with Dr Dogra, who reviewed his clinical notes and advised that the diagnosis of Mr Graham’s psychiatric condition was presumptive and he did not have any specialist reports confirming the diagnosis. Ms Maclean submitted that the medical evidence also suggests that Mr Graham has not been compliant with some recommended treatments and some further improvement in his condition is possible.
Ms Maclean contended that Mr Graham’s back condition is not fully treated or stabilised. Dr Dogra’s report of 19 March 2013 suggests that he may benefit from physiotherapy. In any event, Dr Dogra’s description of the impact of Mr Graham’s condition as “mild to moderate” and his attribution of 7 to 8 impairment points (albeit that Dr Dogra is evidently not familiar with the Impairment Tables), indicates that this condition should not be categorised as severe.
Ms Maclean noted that if the Tribunal were to affirm the decision under review, Mr Graham might wish to consider putting in a new application for a DSP.
DISCUSSION
Psychiatric Condition
I am satisfied that it is Mr Graham’s psychiatric condition that affects him most. At issue is whether his condition is fully diagnosed, treated and stabilised. As noted above, Mr Graham lodged his claim for DSP on 21 March 2012. On 22 March 2012, Mr Graham lodged a Medical Report dated 21 March 2012 from Dr Begum, a Psychiatric Registrar at the Campbelltown Community Mental Health Service, who was treating Mr Graham at that time. In her report, Dr Begum diagnosed “1st episode Psychosis”. She stated that Mr Graham should continue antipsychotic treatment (Risperidone 4 mg) and Community Mental Health follow up. He was “usually compliant” with recommended treatment, needed support in activities of daily living, the impact of the condition was expected to persist for more than 24 months, and within the next two years, the effect of the condition on his ability to function was “uncertain”.
Mr Graham’s GP, Dr Dogra, completed a Medical Certificate for Mr Graham on 13 April 2012. Dr Dogra diagnosed “Schizophrenia with bipolar” nominating as the symptoms poor sleep, anxiety, hyperactivity, and depression. In a further Medical Report dated 4 July 2012, Dr Begum diagnosed “Psychotic illness & schizophrenia”, noting a previous hospital admission – “Liverpool Hospital 1st episode 2008”. Again, Dr Begum said Mr Graham was “usually compliant” with recommended treatment, the impact of the condition was expected to persist for more than 24 months, and the effect on his ability to function was “uncertain”. There is a further Medical Certificate dated 5 September 2012 from Dr R Yasmin, a Psychiatric Registrar at the Campbelltown Community Mental Health Service, diagnosing “Psychotic illness”, listing the symptoms as paranoia and auditory hallucinations, and stating that the prognosis is uncertain. The last entry made by Dr Yasmin in the clinical notes is that on 5 December 2012 when she noted “Patient cancelled appointment” and asked that an appointment be re-booked.
There are also Medical Certificates dated 25 November 2012 and 12 June 2013 completed by Dr Dogra, diagnosing “Bipolar disorder with Schizophrenia”, listing the symptoms as anxiety, depression, poor sleep and labile, and stating that the prognosis is uncertain. In his report dated 19 March 2013, Dr Dogra stated that Mr Graham’s psychiatric condition is “anxiety, depression with paranoid schizophrenia”, likely to be of more than two years’ duration and with any further improvement unlikely. Dr Dogra described this condition as having “a severe functional impact” attracting “approximately 20 points”. He states he has treated Mr Graham since 2005 and Mr Graham has a history of feeling depressed and anxious and complaining of paranoid symptoms, including, in April 2008, having “presented to the hospital with confusion”.
The Campbelltown Community Mental Health Service Clinical Notes for Mr Graham also provide relevant information. A note of a file review dated 19 July 2011 on Mr Graham’s being referred to the Mental Health Service after nine days’ inpatient treatment at Waratah Adult Mental Health Unit, includes the following history:
11/9/06 to 28/9/06 – Browne St [Mental Health Service]: Sx [symptoms] include insomnia, paranoid ideation, conspiracy re gov’t spying, agitation. Also involved were chronic THC & back pain
4/4/08 to 12/4/08 – Coronary Care. CDA called after client standing on railway over pass for 3 hrs. Vague, confused, fugue state [trance or memory loss]. Marriage bk down.
3/7/11 to 12/7/11- W/House. Persecutory delusions
- Period similar to ’08, mental confusion, disorganised thought +++, memory loss, fugue state, disappeared for 3 days. Reported missing to police. …
Dx [diagnosis] psychotic episode, ? schizophrenia
Rx [prescription] Risperidone 4 mg nocte
A Clinical Note of a consultation by Psychiatric Registrar Dr F Shah on 28 July 2011, notes that Mr Graham’s first hospital admission for a psychotic episode was to Liverpool Hospital in 2008. Dr Shah continued to see Mr Graham every two months. In a note dated 23 November 2011, Dr Shah noted that because Mr Graham did not want to take Risperidone any more, it was decided to wean him slowly off Risperidone and start him on Seroquel 300 mg at night. Treatment of Mr Graham appears to have been taken over by Dr Begum on 30 November 2011. She records a telephone message from Mr Graham on 21 December 2011 saying that Seroquel “was not helping him” A note dated 21 March 2012, indicates that Mr Graham reverted to taking Risperidone after this, which is consistent with his evidence.
The above medical information indicates that Mr Graham has had at least two psychotic episodes: in April 2008 and July 2011. The Clinical Notes record Mr Graham being treated with Risperidone from July 2011 and, apart from a short period of treatment with Seroquel in late 2011, this regime has been maintained and Mr Graham has been compliant with this treatment. Mr Graham has remained under the care of the Campbelltown Community Mental Health Service and his GP, Dr Dogra, following his psychotic episode in July 2011.
In the case of some mental conditions, including those involving a psychotic episode, identifying the appropriate diagnosis can be difficult. It may be only after reviewing a person’s response to treatment over a period of time following the initial consultation that, in the light of their history, a diagnosis becomes clearer. I note this difficulty is reflected in one of the introductory notes to Table 5 – Mental Health Function, which states that “[t]he signs and symptoms of mental health impairment may vary over time”.
In Mr Graham’s case, I note that by shortly after the end of the 13 week period following Mr Graham’s claim for DSP on 21 March 2012, Dr Begum had diagnosed “Psychotic illness and schizophrenia” (Medical Report dated 4 July 2012) and Dr Dogra listed Mr Graham’s condition as “schizophrenia with bipolar” (Medical Certificate dated 13 April 2012). Dr Begum was of the view that the condition was likely to persist for more than 24 months (Medical Reports of 21 March 2012 and 4 July 2012) and Dr Dogra expressed this view in his report of 19 March 2013.
The introductory notes to Table 5 – Mental Health Function include the following:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis had not been made by a psychiatrist).
The Respondent submits that during the relevant period there was no diagnosis by an appropriately qualified person and, thus, no rating can be assigned to Mr Graham’s condition under Table 5. I reject this. While at the relevant time Dr Begum was not registered as a psychiatrist, she was a psychiatric registrar. Reference to the website of The Royal Australian and New Zealand College of Psychiatrists ( describes the Fellowship training program which a person must complete to qualify as a psychiatrist. Prerequisites for entry to the program include successful completion of a medical degree, at least one year of general medical training and current registration as a medical practitioner in Australia or New Zealand. Further,
The Fellowship program takes a minimum of 60 months full-time equivalent (FTE) to complete. During the training period, trainees work as registrars in hospitals and clinics, where they are supervised by experienced psychiatrists.
I understand that training commonly includes periods working as a psychiatric registrar in a series of hospitals or clinics so that trainees are exposed to a range of professional practice.
In Mr Graham’s case, Clinical Notes for the Campbelltown Community Mental Health Service show that between July 2011 and June 2012, he was under the care of, in turn, two psychiatric registrars, Dr Shah and Dr Begum. Their professional work would have been supervised by an experienced psychiatrist. It is well-known that in the community mental health sector in NSW there is a dearth of psychiatrists and many of the day-to-day consultations are undertaken by psychiatric registrars. Mr Graham’s condition was also monitored through this period by his GP, Dr Dogra, whom Mr Graham had been consulting since August 2005.
On the basis of diagnoses made by Dr Begum and Dr Dogra (see paragraph 29 above), I am satisfied that by the end of the 13 week period from the time of Mr Graham’s claim for a DSP there had been a full diagnosis by an appropriately qualified medical practitioner and the diagnosis was that Mr Graham was suffering from a psychotic illness and schizophrenia, of which there was medical evidence in the form of clinical notes, medical certificates and medical reports.
I am also satisfied that Mr Graham’s condition had been fully treated by the end of the 13 week period. He was under the care of the local Mental Health Service and his GP and was being treated with Risperidone as described above, treatment which was planned to continue. Equally, I am satisfied that Mr Graham’s condition was fully stabilised and that given the nature of his condition and its past history, any further reasonable treatment was unlikely to result in any significant functional improvement in the next two years. Thus, I find that Mr Graham’s mental health condition was fully diagnosed, treated and stabilised and should have been regarded as ‘permanent’, thereby warranting the assigning of an impairment rating for the purposes of s 94(1)(b) of the Act.
Turning to Table 5 – Mental Health Function, I am satisfied from the evidence that, at the relevant time, Mr Graham’s psychiatric condition was having “a severe functional impact on activities involving mental health function” and should have been assigned an impairment rating of 20 points. In terms of the specific criteria for an impairment rating of 20 points, the evidence indicates that Mr Graham has severe difficulties with independent living. He suffers from anxiety and panic attacks, experiences depression and feelings of hopelessness, and is liable to become emotional and start crying. Both he and his partner described how he has severe difficulty with decision-making in relation to everyday activities including, for example, deciding what clothes to wear in the morning. Mr Graham said he has three track suits available so that he does not have to make a choice of clothing and suffer the associated anxiety; Ms Ogle described how she often has to make a decision about clothing for him and how he has great difficulty leaving the house. Wherever possible, he needs someone with him, either Ms Ogle or his grandmother, to whose house he sometimes goes during the day while Ms Ogle is at work – the Mental Health Service Clinical Notes refer to the support Mr Graham receives from his grandmother. Mr Graham also said he has difficulty concentrating because of the noise in his head, and his confusion is mentioned both in the Clinical Notes and by Dr Dogra. He mentioned some of the bizarre worries he experiences to do with vampires, and the Clinical Notes (Dr Begum) refer to the “referential ideas” from watching television with which he is sometimes preoccupied.
I also note that in his report dated 19 March 2013, Dr Dogra refers to “approximately 20 points” being the appropriate impairment rating. While this report is from well after the relevant period, Mr Graham’s condition appears to be largely unchanged from that in the relevant period.
The consequence of finding that Mr Graham’s mental condition should be assigned an impairment rating of 20 points, is that it is classified as a ‘severe impairment’ pursuant to s 94(3B) of the Act. The program of support requirement referred to in s 94(2)(aa) does not, therefore, apply. Thus, in terms of s 94(1)(c) the requirement that must be satisfied is that Mr Graham has a continuing inability to work for at least 15 hours a week. As stated in paragraph 12 above, on the basis of the Job Capacity assessment Report dated 6 May 2013, the Respondent concedes that Mr Graham’s capacity for work within two years, with intervention, is less than 15 hours a week. I am satisfied from the evidence that, at the relevant time, Mr Graham also satisfied s 94(1)(c).
In conclusion, this means that at the relevant time in 2012 Mr Graham satisfied s 94(1)(a), (b) and (c) of the Act and, subject to meeting any other eligibility and payability requirements, was qualified for a DSP.
Lower Back Condition
Mr Graham’s claim for a DSP was also in respect of his lower back condition. Mr Graham said that he has been troubled by low back pain since 2003 and Dr Dogra (Report dated 19 March 2013) states that Mr Graham consulted him about this in 2005: Mr Graham subsequently had a CT scan of the lumbar spine in January 2006 “which showed L4/5 disc protrusion and … L5/S1 spondylolisthesis”. Dr Dogra states that Mr Graham was seen by a Neurosurgeon, Dr Mark Sheridan on 30 May 2006 who referred him to the pain clinic at Liverpool Hospital where he was seen by Dr Daryl Salmon on 4 September 2006. Mr Graham was taking Panadeine Forte for acute pain but declined other medication and physiotherapy. Dr Dogra describes the impact of Mr Graham’s back condition as “mild to moderate”.
Given the lack of any recent evidence about whether any further treatment would be benefit Mr Graham’s functional capacity, and in the light of my findings above about Mr Graham’s psychiatric condition, I decline to make a finding about the treatment of his lower back condition. I note that this is an example of a situation where it may be appropriate for the Respondent to refer Mr Graham to a specialist for assessment, in the same way that the Respondent could have referred Mr Graham to a Consultant Psychiatrist for an independent assessment of his mental condition.
DECISION
The decision under review is set aside and a decision substituted that Mr Graham satisfies s 94(1)(a), (b), and (c) of the Act and, subject to meeting other eligibility and payability requirements, is qualified for a Disability Support Pension.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley .........[sgd]...............................................................
Associate
Dated 12 September 2013
Date of hearing 3 September 2013 Applicant In person Advocate for the Respondent J Maclean, solicitor Solicitors for the Respondent Department of Human Services, Legal Services Division
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