Grossi and Secretary, Department of Social Services (Social services second review) - [2024] AATA 632

Grossi and Secretary, Department of Social Services (Social services second review) [2024] AATA 632 (8 April 2024)
Division:GENERAL DIVISION
File Number: 2022/6425
Re:Luzio Grossi
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Professor Ann O'Connell
Date:8 April 2024
Place:Melbourne

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 July 2022 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) and was qualified for the Disability Support Pension at the date of his claim on 3 January 2022.
.............................[sgd]...........................................
Senior Member Professor Ann O'Connell
Catchwords
SOCIAL SECURITY – refusal of disability support pension – whether applicant's medical conditions were fully diagnosed, treated, and stabilised – whether impairments rated 20 points or more under the Impairment Tables – whether the impairments rated 20 points or more under a single heading of the Impairment Tables – whether there was a continuing inability to work – decision under review set aside and substituted with decision that the Applicant met eligibility requirements.
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secondary Materials
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023
REASONS FOR DECISION
Senior Member Professor Ann O'Connell
5 April 2024
INTRODUCTION

This case involved an application for a Disability Support Pension (‘DSP’) by the Applicant, Mr Luzio Grossi. Mr Grossi lodged a claim for a DSP on 3 January 2022, in which he referred to several medical conditions that impacted his ability to work. The claim was rejected by Centrelink on 23 January 2022 (‘original decision’), and, on 27 May 2022, this decision was affirmed by an Authorised Review Officer (‘ARO decision’) at Centrelink. Mr Grossi’s appeal to the Social Services and Child Support Division of this Tribunal (‘AAT1’) was heard on 28 July 2022 and was unsuccessful. On 3 August 2022, the Applicant lodged a further appeal with the General Division of this Tribunal.
The hearing was conducted in person on 22 March 2024. Mr Grossi was self-represented and gave evidence under affirmation. The Respondent (Secretary) was represented by Adam Slevison of the Australian Government Solicitor.
For the following reasons, the Tribunal sets aside the decision under review and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’) and was qualified for DSP at the date of his claim on 3 January 2022.
BACKGROUND
The Applicant, Mr Grossi, is 56 years old.[1] He is single and lives alone in rental accommodation. He has no children. Mr Grossi came to Australia in 1974 as a six year old from his place of birth, Italy. Mr Grossi completed a Bachelor of Fine Arts majoring in Photography. He worked as a self-employed photographer until 2018 (the date of his second motor vehicle accident (MVA)).
[1] T2, 21-26. In this regard, references to “T” documents are references to documents required to be given to the Applicant under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).
LEGISLATIVE FRAMEWORK
The qualifying requirements for DSP are set out at s 94(1) of the Act. It must be established, inter alia, that:
(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)…
(i)the person has a continuing inability to work;
Under s 94(2) a person has a ‘continuing inability to work’ if the Secretary is satisfied that:
(aa) where the impairment is not a severe impairment, the person has actively participated in a program of support (POS);
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a POS within the next two years; and
(b) the impairment is of itself sufficient to prevent the person undertaking a training activity during the next two years; or if the impairment does not prevent the person undertaking a training activity, such activity is unlikely to enable the person to do any work independently of a POS within the next two years.
‘Work’ is defined in s 94(5) as 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
Under s 94(3B) of the Act, a person has a severe impairment if the impairment is 20 points or more under a single Impairment Table. Where a person has a severe impairment under a single Impairment Table, it is still necessary to consider if they have an inability to work for at least 15 hours per week or to undertake a training activity due to their impairment within the next two years. Where a person does not have a severe impairment under a single Impairment Table, they must have an inability to work and have actively participated in a POS. Under s 94(3C) a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister.[2]
[2] Social Security (Active Participation for Disability Support Pension) Determination 2014.
Mr Grossi satisfies the age requirement for a DSP (s 94(1)(d)) being over 16 years of age, and as he is not under 35 years of age, he was not required to meet the participation requirements in s 94(1)(da). Mr Grossi also satisfies the residency requirements as he is an Australian citizen (s 94(1)(e) and (ea); s 7(2)(1)(b) definition of Australian resident) – he gave evidence that he has dual citizenship.
The Impairment Tables referred to in s 94(1)(b) of the Act are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the 2011 Determination’).[3] The Impairment Tables assign ratings reflecting the level of functional impact a condition has on an applicant.
[3] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 came into force on 1 April 2023, but it was accepted that the 2011 Determination was the applicable Determination to deal with the Applicant’s claim.
Importantly, s 6(3) of the 2011 Determination states that an impairment rating can only be assigned if a condition causing an impairment is ‘permanent’ (s 6(3)(a)) and the impairment is ‘more likely than not, in light of available evidence, to persist for more than two years’ (s 6(3)(b)).
Subsection 6(4) further states that a condition is permanent if the condition has been ‘fully diagnosed by an appropriately qualified medical practitioner’, has been ‘fully treated’, has been ‘fully stabilised’ and ‘is more likely than not, in light of available evidence, to persist for more than two years’.
In relation to whether an impairment is ‘fully diagnosed and fully treated’ and ‘fully stabilised’, s 6 of the 2011 Determination relevantly states:
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:
(c)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
(d)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.
EVIDENCE
The Tribunal took into evidence documents lodged by the Secretary numbering 241 pages; 5 documents lodged by Mr Grossi – a Medicare claims history report (5 November 2019 to 5 November 2022); 3 letters from Ms Diana Arzuman, psychologist dated 20 October 2022, 16 March 2023 and 15 May 2023 and a letter from Dr Youssef dated 6 June 2023. The Tribunal also considered oral evidence given by Mr Grossi at the hearing.
The Tribunal considered the medical evidence provided which included the following:
·A medical certificate from Dr Malek, GP dated 1 September 2010 (T4).
·Medical Certificates from Dr Youssef (Mr Grossi’s current GP) and colleagues from the Family Care Medical Centre covering periods between April 2012 and April 2022 (T5).
·Medical imaging reports, including:
oAn MRI scan of left shoulder dated 10 April 2014 (T8).
oA CT scan of cervical spine dated 24 December 2018 (T11).
oUltrasound of right elbow and MRI scan of cervical spine dated 9 January 2019 (T12).
oMRI scan of right knee dated 28 February 2020 (T14).
oCT scan of brain and cervical spine dated 14 July 2020 (T17).
·A medico-legal report from Associate Professor Abdul Khalid (psychiatrist) dated 1 February 2020 (T13).
·Medico-legal reports from Dr Jennifer Flynn (orthopaedic surgeon) dated 2 March 2020 (T15) and 14 April 2020 (T16).
·A report from Associate Professor Justin O’Day (ophthalmologist) dated 12 October 2020 (T18).
·Letters from Dr Youssef dated 21 July 2021 (T19) and 6 June 2023 (A5), a medical certificate dated 14 July 2022 (T32.1) and a medical report dated 29 October 2021 (T20).
·A medico-legal report from Chris Constantinou (physiotherapist) dated 7 November 2021 (T21).
·Letters from Diana Arzuman (psychologist) dated 20 October 2022 (A2), 16 March 2023 (A3) and 15 May 2023 (A4).
The Tribunal also considered:
·The DSP online claim submitted by Mr Grossi on 3 January 2022 (T22).
·Job Capacity Assessment (‘JCA’) reports dated 7 July 2009 (T2) and 20 October 2009 (T3) (dealing with the shoulder injury in 2000).
·Employment Services Assessment reports dated 24 April 2012 (T6), 22 April 2013 (T7), 9 September 2014 (T9), 31 May 2017 (T10).
·A Medical eligibility assessment recommendation dated 11 January 2022 (T23).
·A JCA report dated 26 May 2022 (T27).
·An ARO decision dated 27 May 2022 (T28) and review notes (undated) (T29).
The application for a DSP was refused on 23 January 2022 (T24, 145) and, an Authorised Review Officer affirmed the original decision on 27 May 2022 (T28, 164). The ARO decision found that Mr Grossi had the following conditions:
·Neck disorder: said to be fully diagnosed, treated and stabilised that caused moderate impairment (10 points)
·Psychological condition: said to be fully diagnosed, treated and stabilised that caused moderate impairment (10 points)
·Eye anomaly: said to be fully diagnosed, treated and stabilised that caused mild impairment (5 points)
·Shoulder and right knee injuries said to be diagnosed but not fully treated or stabilised – no impairment rating.
The ARO determined that Mr Grossi had a total impairment rating of 25 points. However, the ARO concluded that Mr Grossi was not eligible for a DSP as he did not have an impairment rating of 20 points or more under a single table of the Impairment Tables, and had not taken part in a POS. He therefore did not satisfy the requirements of s 94(1)(c) relating to a continuing ability to work.
On 28 July 2022, the AAT1 affirmed the ARO decision (T1.1, 7). The following medical conditions were referred to:
·     Neck injury – AAT1 agreed that the condition was permanent i.e., fully diagnosed, treated and stabilised and that it warranted 10 points under Table 4 of the Impairment Tables.
·     Mental health problems – AAT1 disagreed with the findings of the JCA dated 25 May 2022 which considered Mr Grossi’s psychological disorder fully diagnosed, treated and stabilised. In part, this was because there was no evidence before the Tribunal relating to treatment by the psychologist referred to as ‘Diana’ – presumably a reference to Diana Arzuman. AAT1 found that no impairment rating was warranted.
·     Shoulder, elbow and knee problems – AAT1 determined that these problems were not fully diagnosed, treated and stabilised and no impairment rating was warranted.
·     Visual disturbance – AAT1 accepted that the eye condition was fully diagnosed, treated and stabilised and that there was a mild impairment of visual function that warranted 5 points under Table 12 of the Impairment Tables.
AAT1 concluded that Mr Grossi’s medical conditions attracted an impairment rating of 15 points under the Impairment Tables, meaning he did not satisfy s 94(1)(b). It was therefore not necessary to consider whether Mr Grossi had a continuing inability to work under s 94(1)(c).
ISSUES
The issues for the Tribunal to determine are:
(i)the relevant period for Mr Grossi’s claim;
(ii)whether Mr Grossi has a physical, intellectual or psychiatric impairment under s 94(1)(a) of the Act; and, if so,
(iii)whether Mr Grossi has a physical, intellectual or psychiatric impairment rating of 20 points or more under the Impairment Tables as required by s 94(1)(b) of the Act; and, if so,
(iv)whether Mr Grossi also has a ‘continuing inability to work’ as defined in the Act as required by s 94(1)(c) of the Act.
(i) The relevant period
The Social Security (Administration) Act 1999 (‘Administration Act’) relevantly provides, at cl 4(1) of sch 2:
If:
(a)a person … makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
[emphasis added]
As the date of Mr Grossi’s claim is 3 January 2022, the period for assessing the Applicant’s entitlement to DSP is, therefore, the 13-week period from that date until 4 April 2022 (‘the relevant period’). Some of the documents lodged by Mr Grossi are dated after the 4 April 2022, namely the 3 letters from Diana Arzuman dated 20 October 2022, 16 March 2023 and 15 May 2023 and the letter from Dr Youssef dated 6 June 2023. In the decision of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29], the Federal Court affirmed the principle as discussed in Re Fanning and Secretary, Department of Social Services [2014] AATA 447, and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, that medical reports that come into being after the relevant period will only be relevant to the extent that they refer to a person’s condition during the qualification period. The Tribunal is satisfied that the letters referred to relate the relevant period and can therefore be considered.
(ii)Does Mr Grossi have a physical, intellectual or psychiatric impairment?
Mr Grossi has a number of medical conditions. In his application for a DSP, he described his medical conditions as ‘neck PTSD elbow knee shoulder psychological trauma’. The ARO found that Mr Grossi did have those conditions, and an eye anomaly.
The Secretary accepts and the Tribunal finds that Mr Grossi has impairments, namely a neck disorder, a mental health condition, shoulder, elbow and right knee injuries and an eye condition, and that s 94(1)(a) of the Act was satisfied during the relevant period.
(iii)Does Mr Grossi have an impairment rating of 20 or more points under the Impairment Tables?
Under s 94(1)(b) of the Act, Mr Grossi’s medical conditions must attract an impairment rating of at least 20 points according to the Impairment Tables set out in the 2011 Determination.
As noted above, to apply the Impairment Tables, s 6(3) of the 2011 Determination provides that the condition must be considered ‘permanent’ and more likely than not, in light of available evidence, to persist for more than 2 years. For a condition to be permanent it must have been fully diagnosed by an appropriately qualified medical practitioner and been fully treated and stabilised (ss 6(4), (5) and (6) of the 2011 Determination) during the relevant period.
It is necessary to consider each of Mr Grossi’s medical conditions and then consider which, if any, Impairment Tables apply. It is then necessary to assess the level of functional impact under the relevant Table.
Neck disorder
Mr Grossi gave evidence that most of his medical issues are the result of two MVAs – one in 2012 and one in 2018.[4] In both cases, he was struck from behind while stationary and sustained a whiplash injury. Mr Grossi is pursuing a claim for compensation with the Transport Accident Commission with respect to the 2018 MVA.
[4] Mr Grossi referred in evidence to a 3^rd MVA in 2020 but no further details were provided and it was not suggested that this caused any additional injuries.
Documentary evidence relating to the neck condition includes a number of medical certificates relating to the period after the first MVA that note ‘whiplash injury’ and note ‘chronic neck pain’, ‘stiff sore neck’ ‘reduced range of movement’ (dated 23 April 2012, 22 January 2013, 22 March 2013, 4 September 2014, 23 March 2015, 16 February 2018 – T5). They also note that the condition is ‘likely to persist’. A report from his GP, Dr Youssef dated 29 October 2021 referred to ‘aggravation of whiplash injury of the neck, resulted in chronic post traumatic headaches’ and ‘constant pain’. Other evidence includes 2 reports from Dr Flynn, orthopaedic surgeon, (dated 2 March 2020 and 14 April 2020) who examined Mr Grossi in the context of his claim against the TAC. In relation to the neck injury/cervical spine, Dr Flynn felt that the history and examination suggested ‘facet joint problems and nerve root compression’. Dr Flynn noted a restricted range of movement that would make continuation of his work as a photographer difficult. A report from Chris Constantinou, physiotherapist (dated 7 November 2021) advised that he had been treating Mr Grossi since 1 March 2021 for neck and other physical symptoms. In his opinion, the injuries were predominantly soft tissue related. He noted that the treatment had had a significant impact on Mr Grossi’s range of motion and comfort but that ‘he may experience exacerbations of acute neck episodes or chronic symptoms’.

Treatment has included pain medication as noted by Dr Flynn – prednisolone, ibuprofen, Mersyndol, Lyrica and Celebrex, and physiotherapy. Mr Constantinou’s same report also refers to chiropractic treatment following the 2012 MVA. Dr Flynn’s report (dated 2 March 2020) noted that the prognosis for return to pre-injury status is poor, and is unlikely to occur. In her view, Mr Grossi is likely to continue to experience pain and functional limitation.
The Secretary accepts, and the Tribunal finds that the neck condition is permanent i.e., fully diagnosed, treated and stabilised and that further intervention (such as treatment) would not result in any significant improvement over the next two years.
It is therefore necessary to consider the Impairment Tables. The most appropriate Table is Table 4 – Spinal Function. Table 4 of the Impairment Tables, like the other Tables, lists 5 possibilities:
(a)     No functional impact (0 points);
(b)     Mild functional impact (5 points);
(c)     Moderate functional impact (10 points);
(d)     Severe functional impact (20 points); and
(e)     Extreme functional impact (30 points).
The ARO and AAT1 assessed the appropriate rating Under Table 4 as moderate i.e., 10 points. The requirements for moderate and severe impact are as follows:

10

There is a moderate functional impact on activities involving spinal function.

(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c) the person is unable to bend forward to pick up a light object placed at knee height; or

(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1) The person is unable to:

(a) perform any overhead activities; or

(b) turn their head, or bend their neck, without moving their trunk; or

(c) bend forward to pick up a light object from a desk or table; or

(d) remain seated for at least 10 minutes.

The evidence relating to the functional impact of Mr Grossi’s neck condition comes from Dr Flynn, writing in March 2020, who notes that although he is independent in all personal activities of daily living:
“he has difficulty showering and dressing, and is required to sit to dress due to the condition of the neck…He reported difficulty with overhead use of the left arm, limiting his capacity to hang out washing and clean the shower, as well as difficulty with heavy household activities due to pain of the neck, such as changing bed linen, mopping and vacuuming.”
Mr Grossi gave evidence that his sister comes twice a week to assist with household chores. Mr Grossi is able to drive short distances – indeed he drove to the hearing from his home in Chadstone, but suggested that was to avoid having to use public transport. Mr Grossi gave evidence that he is unable to turn his head to look over his shoulder without moving his trunk and that he cannot do activities that involve reaching above his head. On that basis, the Tribunal finds that the most appropriate category under Table 4 is ‘severe’ being, 20 points.
Mental health condition
The evidence relating to Mr Grossi’s mental health issues includes various medical reports as well as the recommendation of the JCA dated 26 May 2022 and findings of the ARO dated 27 May 2022.
The JCA report dated 26 May 2022 noted the report by Associate Professor Khalid dated 1 February 2020, and a letter from Dr Youssef dated 29 October 2021, and concluded that during the relevant period the condition was fully diagnosed, treated and stabilised. The JCA report noted that there was a mild functional impact on activities involving mental health function (suggesting a 5 point rating under the Impairment Tables), but then assigned 10 points.
The ARO decision on 27 May 2022 accepted that the psychological condition was fully diagnosed, treated and stabilised, noting that it caused moderate functional impairment as ‘it impacts concentration, planning decision making and capacity to engagement (sic) in social activities’. An impairment rating of 10 points was assigned.
In AAT1, there was concern about what were described as discrepancies between the medical reports and the oral evidence of Mr Grossi concerning whether the condition was caused by the MVAs or by the death of his mother. It was also noted that Mr Grossi claimed to have had counselling from a psychologist called ‘Diana’ (presumably, Diana Arzuman) but that no evidence of treatments or reports had been provided. On that basis, AAT1 held that the mental health condition was not fully treated or stabilised and warranted no impairment points.
The medical reports before the Tribunal included the report of Associate Professor Khalid; a referral from Dr Youssef to Diana Arzuman dated 21 July 2021; letters from Dr Youssef dated 29 October 2021 and 6 June 2023 as well as a medical certificate dated 14 July 2022, and letters from Diana Arzuman dated 20 October 2022, 16 May 2023 and 15 May 2023.
The report from Associate Professor Khalid dated 1 February 2020 was prepared as part of the claim for compensation from the TAC. The report noted ‘adjustment disorder with mixed anxiety and depressed mood’ and that this had arisen as a result of the MVA in 2018. Associate Professor Khalid noted that from a psychiatric point of view Mr Grossi’s symptoms were ‘mild in severity’ and that the condition ‘moderately affects his capacity to attend to social and recreational activities’ although he had the ‘capacity to attend to activities of daily living and domestic activities’. He also noted that the symptoms had stabilised and would not ‘significantly change with further treatment’. He also noted that from a psychiatric point of view, Mr Grossi had the capacity to return to full time employment.
In a referral dated 21 July 2021 to Diana Arzuman, Dr Youssef noted that Mr Grossi has used all 10 sessions under a Mental Health Treatment Plan, and requested another 10 sessions. In a letter dated 29 October 2021, Dr Youssef noted that the 2012 MVA resulted in post traumatic stress disorder (PTSD) resulting in ‘crying episodes, insomnia and panic attacks’ and the 2018 MVA resulted in ‘aggravation of PTSD requiring regular medication and counselling’. A medical certificate from Dr Youssef dated 14 July 2022 notes ‘adjustment disorder with anxious mood’. In a letter dated 6 June 2023, Dr Youssef notes Mr Grossi has been suffering from ‘PTSD related to sudden death of his mother [in 2020] in traumatic accident post fall in front of him resulted in depressed mood, insomnia, social isolation, lack of motivation for which he has been seeing psychologist on regular bases also, his mental and physical wellbeing has been affected by MVA [in 2018]’. In relation to Mr Grossi’s application and the relevant period, Dr Youssef notes that ‘his condition has been deteriorating and expected not to change in the next two years’.
Diana Arzuman, psychologist, in letters dated 20 October 2022, 16 March 2023 and 15 May 2023 provides some information about the treatment she has provided Mr Grossi. Importantly, she notes that he has been consulting her since 20 January 2021, so although the letters are after the relevant period they relate to the treatment before and during (as well as after) the relevant period. The fullest description of the condition and treatment is in the letter dated 15 May 2023. She confirms the impact of both the death of Mr Grossi’s mother and the MVAs. She notes that Mr Grossi finds it ‘hard to focus on tasks and reports he cannot sit in front of a computer for more than 10 minutes. Decision-making is a difficult task (sic) him and he states that he relies on [his sister] for guidance’. Ms Arzuman also notes that treatment has focussed on Cognitive Behavioural Therapy; acceptance and relaxation exercises.
The Secretary contends that there is insufficient evidence to conclude that the mental health condition was fully diagnosed, treated and stabilised at the time of the application or within the relevant period. In particular, the Secretary argues that:
·     Mr Grossi’s claim that his mental health deteriorated after the death of his mother puts into doubt the report by Associate Professor Khalid that the condition was predominantly based on the condition arising from the MVAs;
·     There is nsufficient evidence as to the basis for the diagnosis by Dr Youssef and Ms Arzuman; and
·     There is insufficient evidence that the condition has been fully treated and stabilised.
The Tribunal accepts the medical evidence, in particular the report by Associate Professor Khalid, as to the diagnosis of the mental health condition. The Tribunal also accepts that the condition that arose after the MVA in 2018 could well have been aggravated by the circumstances surrounding the death of Mr Grossi’s mother. In relation to treatment, the Tribunal notes that Mr Grossi has been seeing a psychologist in the period leading up to and during the relevant period. The Tribunal also notes that Associate Professor Khalid was of the opinion that the condition had stabilised and was unlikely to change significantly with further treatment. The Tribunal therefore finds that the mental health condition was permanent ie fully diagnosed, fully treated and stabilised, and more likely than not, to persist for more than 2 years.
It is therefore necessary to consider Table 5: Mental Health. The JCA and ARO decision assigned a moderate impact, although the JCA described the functional impact as ‘mild’. The relevant parts of Table 5 are as follows:

5

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

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

(a) self care and independent living;

Example: The person lives independently but may sometimes neglect self-care, grooming or meals.

(b) social/recreational activities and travel;

Example 1: The person is not actively involved when attending social or recreational activities.

Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

(c) interpersonal relationships;

Example: The person has interpersonal relationships that are strained with occasional tension or arguments.

(d) concentration and task completion;

Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.

Example 2: The person has some difficulties completing education or training.

(e) behaviour, planning and decision-making;

Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.

Example 2: The person has slight difficulties in planning and organising more complex activities.

(f) work/training capacity.

Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.

10

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

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

(a) self care and independent living;

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

(b) social/recreational activities and travel;

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

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

(c) interpersonal relationships;

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

(d) concentration and task completion;

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

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

(e) behaviour, planning and decision-making;

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

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

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

(f) work/training capacity.

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

Mr Grossi gave evidence that he can manage self-care and lives independently although his sister comes twice a week to assist with some household tasks; he does not travel much or engage in social activities – he referred to the fact that he does not attend salsa activities, but this appeared to be a result of his physical symptoms; in relation to interpersonal relations Mr Grossi said he did not go out much although Ms Arzuman mentioned a girlfriend and that he relies on his sister – tensions with 2 other sisters seem to pre-date these symptoms; he does have some difficulty with concentration although this may also be related to physical symptoms; Ms Arzuman mentions difficulties with decision-making, saying he relies on his sister for guidance. The Tribunal notes that Mr Grossi attended the hearing unaccompanied, having driven from his home and navigated on-street parking. He was able to sit for approximately 3 hours and to follow the proceedings with no trouble. The Tribunal finds that the appropriate rating under Table 5 is mild ie 5 points.
Shoulder, elbow and knee problems
Mr Grossi gave evidence of injury to his left shoulder as a result of a fall in the snow in 2000. This was documented by JCA reports in July and October 2009 (T2, T3) and medical certificates dated 1 September 2010 (T4) and 23 April 2012 (T5). The report by Dr Flynn dated 2 March 2020 noted surgery on the shoulder (subacromial decompression) in 2010 from which Mr Grossi reported ‘a good recovery, and had returned to full activity, including attending the gym’. Dr Flynn diagnosed ‘exacerbation of left shoulder impingement and SLAP tear’. The report by Chris Constantinou, physiotherapist, dated 7 November 2021 noted that the 2 MVAs seem to have exacerbated the shoulder condition, and stated that it was ‘reasonable that there may be slow degenerative deterioration which has been accelerated by further trauma’. Nevertheless, he noted that Mr Grossi enjoyed ‘excellent function in his left shoulder’.
In relation to treatment of the left shoulder, Mr Grossi has been receiving physiotherapy treatment from Melbourne Physiotherapy since 1 March 2021, as recommended by Dr Flynn. No further treatments have been suggested. The Secretary accepts and the Tribunal finds that the left shoulder injury was at the relevant time, permanent ie fully diagnosed, fully treated and stabilised, and more likely than not, to persist for more than 2 years.
In relation to the right elbow, Dr Flynn diagnosed ‘exacerbation of right elbow osteoarthritis’ with Mr Grossi ‘reporting right elbow stiffness, loss of full extension, and lateral arm pain’ and that ‘he reported pain when driving and pain with pronation and supination’. Mr Constantinou reported ‘clinically…a loss of extension which is minor in the right elbow’. He suggested that there may be ‘a mechanical block that prevents him having full extension’, but that this ‘did not impose a great functional burden upon him’.
In relation to treatment of the right elbow, Dr Flynn did not recommend any treatment. She noted that Mr Grossi did not require any further treatment. Mr Grossi has been receiving physiotherapy from Mr Constantinou for his various physical conditions.
The JCA and ARO decision accepted that the left shoulder and right elbow conditions were fully diagnosed but not fully treated or stabilised. AAT1 held that the conditions had not been fully diagnosed (or treated or stabilised).
The Secretary now accepts, and the Tribunal finds, that the shoulder and elbow injuries are permanent i.e., fully diagnosed, fully treated and stabilised, and more likely than not, to persist for more than 2 years.
It is therefore necessary to consider the Impairment Tables - Table 2: Upper Limb Function. Dr Flynn noted that Mr Grossi had some difficulty with the use of his left shoulder, ‘limiting his capacity to perform tasks such as hanging out washing or cleaning the shower’. Mr Constantinou noted that the shoulder and elbow conditions did not pose any great functional difficulties. It also seems likely that some of the difficulty noted by Dr Flynn (and Mr Grossi) are related to his neck condition. However, given that the Secretary accepts some functional impairment, the Tribunal finds that the most appropriate rating under Table 2 is mild i.e., 5 points.

5

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.

In relation to the right knee condition, Dr Flynn concluded that based on MRI and ultrasound reports, Mr Grossi had ‘exacerbation of right knee chondromalacia patella’ and required physiotherapy. In a second report dated 14 April 2020, based on more recent MRI reports, Dr Flynn reported ‘degenerative lateral meniscus, degeneration and oblique tearing of the medial meniscus, and new medial tibial plateau’. She recommended treatment by a GP or orthopaedic surgeon. Mr Constantinou in his report dated 7 November 2021 noted he did not treat the right knee as Mr Grossi advised that the knee had settled and did not bother him greatly. On that basis, the Tribunal finds that the right knee condition has been fully diagnosed but not fully treated or stabilised. In any event, even if it was found to be permanent, it is unlikely that any points would be assigned under Table 3: Lower Limb Function.
Eye condition
A medical report from Associate Professor Justin O’Day dated 12 October 2020, prepared for Mr Grossi’s compensation claim against the TAC noted ‘intermittent blurring of vision for both near and distance objects’ since the 2018 MVA. Associate Professor O’Day also noted ‘a tendency for the eyes to deviate outwards under alternate cover (exophoria)’ and that the symptoms were consistent with a whiplash injury. He notes that since the accidents (presumably a reference to the 3 MVAs noted earlier in his report) ‘he has episodes of quite severe headaches which can be associated with shadows or lights in his eyes’. Associate Professor O’Day noted that the condition is likely to be longstanding. He did not recommend any treatment for the condition.
The JCA report in May 2022, the ARO decision also in May 2022 and AAT1 in July 2022 all accepted that the eye condition was fully diagnosed, treated and stabilised. The Secretary also accepts and the Tribunal finds that this condition is permanent and more likely than not, to persist for more than 2 years.
In relation to the functional impact of this condition, Mr Grossi gave evidence that he is still able to drive despite the eye condition, and that he sometimes uses the magnifying function on his phone to read small print. Associate Professor O’Day noted that ‘the symptom does make it difficulty (sic) for him to work as a photographer, as he is not sure whether the symptom will occur at the time when he is taking photographs and thereby causing him to have difficulty in the exact focus for the image’ and that ‘he has been unable to work as a photographer due to the visual problems’ (together with shoulder pain when he is holding camera equipment). Apart from this evidence it is not clear how the condition impacts on Mr Grossi’s daily life, but given the acceptance of some impact by previous decision-makers, the Tribunal finds that there is a mild functional impact under Table 12: Visual Function, Item (1)(a), (b) or (d)):

5

There is a mild functional impact on activities involving visual function.

(1) The person can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:

(a) the person has some difficulty seeing the fine print in newspapers or magazines (e.g. they have to hold the print further away or use brighter light);

(b) the person has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;

(c) when looking straight ahead, the person has some difficulty seeing objects to the side or in the centre of their field of vision;

(d) the person experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight);

(e) the person has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.

This attracts a rating of 5 points under Table 12.
Total Impairment Rating

The Tribunal determines that Mr Grossi has the following impairment ratings:
·     20 points under Table 4 for the neck condition;
·     5 points under Table 5 for the mental health condition;
·     5 points under Table 2 for the shoulder and elbow condition; and
·     5 points under Table 12 for the eye condition.
This gives a total rating of 35 points. This means that Mr Grossi has satisfied the requirements of s 94(1)(b).
(iv) Does Mr Grossi also have a ‘continuing inability to work’?
Under s 94(1)(c) Mr Grossi must have a ‘continuing inability to work’ because of the impairments. Under s 94(2) the test differs depending on whether the person has a ‘severe impairment’. Under s94(3B) a ‘severe impairment’ means an impairment of 20 points or more under a single Impairment Table. The requirements are:
·     In cases where the person’s impairment is not a ‘severe impairment’ the person must have actively participated in a POS (s 94(2)(aa)); and
·     in all cases, the impairment must prevent the person from doing any work independently of a POS whether skilled or unskilled within the next two years (s 94(2)(a)); and
·     in all cases, the impairment must also prevent the person from undertaking a training activity during the next two years (s 94(2)(b)).
As noted above, ‘work’ means work that is of at least 15 hours per week at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market (s 94(5)).
This requirement was not considered by AAT1 as it was held that Mr Grossi did not have a total impairment rating of 20 points and so it was not necessary to consider whether the requirements of s 94(1)(c) were satisfied. Since the Tribunal finds that s 94(1)(b) is satisfied, it is necessary to consider whether Mr Grossi has a continuing inability to work.
Mr Grossi does have an impairment rating of 20 points under a single Table (Table 4). It is therefore not necessary to consider whether Mr Grossi has actively participated in a POS as required by s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014. For completeness, it is noted that in the relevant period Mr Grossi had 0 days of participation in the 36 months ending on 2 January 2022. Mr Grossi gave evidence that more recently he has participated in such a program but was unable to provide any further details.
In relation to the continuing inability to work requirement under s 94(2)(a) and (b), the Tribunal must be satisfied that Mr Grossi’s impairments prevent him from doing any work, or training activity independently of a POS whether skilled or unskilled within the next two years. The JCA report dated 26 May 2022 (completed as a file assessment) concludes that ‘a baseline work capacity is indicated at 8-14 hours per week due to the impact of physical and psychological conditions. The report continues to state that:
The client is best suited to lighter duties that allow him to alter his neck as required and to work that will not exacerbate psychological symptoms. With vocational support work capacity is expected to increase to 15-22 hours per week in the next two years.
It is also noted that Associate Professor Khalid reporting in February 2020 noted that ‘from a psychiatric point of view [Mr Grossi] could return to full-time work’. It is also noted that Dr Flynn reporting in March 2020 noted that Mr Grossi had the capacity for suitable employment although he had not worked since the 2018 MVA. Mr Grossi gave evidence that he had not been able to resume his career as a professional photographer, because the difficulty, inter alia, of handling heavy photographic equipment. He also gave evidence that his multiple health conditions meant he was unable to perform sedentary tasks as sitting in front of a computer was uncomfortable.
The health professionals who have had more recent contact with Mr Grossi are less optimistic. Dr Youssef, his long-term GP, writing in June 2023 but referencing his condition post the 2018 MVA and the death of Mr Grossi’s mother notes that ‘he has severe difficulty with concentration, task completion and decision making as a result of severe depressed mood and physical limitation’ as well as ‘work and training capacity’. Ms Arzuman writing in May 2023 and having seen Mr Grossi since January 2021 notes that he ‘finds it hard to focus on tasks and reported he cannot sit in front of a computer for more than 10 minutes’. She also notes that Mr Grossi reports ‘that he has not worked for 4 years; and with his limitations he would struggle to meet the demands of workforce (sic)’.
Based on this more contemporaneous assessment of Mr Grossi’s capabilities, the Tribunal finds that Mr Grossi’s impairments prevent him from doing any work of at least 15 hours per week within the next two years (s 94(2)(a)); or from undertaking a training activity during the next two years (s 94(2)(b)). Mr Grossi has a continuing inability to work as required by s 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that Mr Grossi did satisfy ss 94(1)(a), (b) and (c) of the Act during the relevant period. As a result, Mr Grossi did meet the qualification requirements for DSP at the date of his claim on 3 January 2022.
DECISION
The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 July 2022 and substitutes a decision that the Applicant met the eligibility requirements of section 94 of the Social Security Act1991 (Cth) and was qualified for the Disability Support Pension at the date of his claim on 3 January 2022.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Professor O’Connell

.................[sgd].......................................................
Associate
Dated: 8 April 2024

Date(s) of hearing: 22 March 2024

Applicant: Self-represented

Advocate for the Respondent:

Adam Slevison

Date(s) of hearing:	22 March 2024
Applicant:	Self-represented
Advocate for the Respondent:	Adam Slevison