Gunton and Secretary, Department of Social Services (Social services second review)
[2021] AATA 15
•14 January 2021
Gunton and Secretary, Department of Social Services (Social services second review) [2021] AATA 15 (14 January 2021)
Division:GENERAL DIVISION
File Number:2018/6641
Re:Jamie Gunton
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:14 January 2021
Place:Brisbane
The decision under review is affirmed.
.................[SGD].......................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Commonwealth of Australia v Snell (2019) 269 FCR 18
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Plumb v Comcare (1992) 39 FCR 236
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Secretary, Department of Familes, Housing, Community Services and Indigenous Affair v Jansen [2008] FCAFC 48
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Wignall and Secretary, Department of Social Services [2019] AATA 1979
REASONS FOR DECISION
Member D Mitchell
14 January 2021
INTRODUCTION
Mr Jamie Gunton (the Applicant) seeks review of a decision made by the Social Security and Child Support Division (SSCSD) of the Tribunal affirming the Respondent’s decision to refuse his claim for the disability support pension (DSP) lodged on 18 September 2017.[1]
[1] Exhibit 1, T Documents, T1, page 1, Application for Review.
The Reviewable Decision was made on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables.
BACKGROUND
In 2009 the Applicant injured his right hand and forearm in a workplace accident. Following surgery his injuries were described as “Laceration Lt forearm with cut ulnar nerve, median nerve, FCU, FCR, FDS, partial tear FDP, Palmaris longus, cut ulnar & Ant interosseus artery.”[2]
[2] Exhibit 1, T Documents, T4, page 55, Rockhampton Hospital: Orthopaedic Summary.
On 8 April 2010, Dr Ceasar Torres, general practitioner confirmed the Applicant’s injury and noted that he could no longer use his right hand and had no sensation at all.[3]
[3] Exhibit 1, T Documents, T5, pages 57-58, Medical Report: Dr Torres.
The Applicant was first granted DSP in early 2010.[4]
[4] Exhibit 1, T Documents, T33, page 253, Centrelink Mainframe Screen.
The Applicant was working in a concreting cutting business in 2013 where his duties included the operation of a self-propelled road saw.[5] At the end of September 2013, the Applicant was involved in a workplace accident where while operating the road saw, he cut through a power line, suffering an electric shock.[6]
[5] Exhibit 4, Hearing Brief, A9, page 86, Statement of Applicant.
[6] Exhibit 4, Hearing Brief, A4, pages 34-35, Report - Dr Flanagan.
As part of the Applicant’s WorkCover Queensland claim he was referred to Dr John Flanagan, psychiatrist. On 21 March 2014, the Applicant was seen by Dr Flanagan who diagnosed him with post-traumatic stress disorder (PTSD) and recommended psychiatric treatment which he estimated would properly require up to three months.[7]
[7] Exhibit 4, Hearing Brief, A4, pages 53-55, Report - Dr Flanagan.
The Applicant was selected for a review of his DSP qualification on 3 July 2015.[8] Following a Job Capacity Assessment appointment on 8 October 2015 the Assessor formed the view that the Applicant had “no functional impact on activities using hands or arms”.[9] On 6 November 2015 a decision was made to cancel the Applicant’s DSP.[10]
[8] Exhibit 1, T Documents, T33, page 250, Centrelink Mainframe Screen.
[9] Exhibit 1, T Documents, T9, pages 95-97, Job Capacity Assessment Report.
[10] Exhibit 1, T Documents, T17, page 150, Decision and Notes of Authorised Review Officer.
The Applicant sought internal review of that decision providing reports from Dr Eric de Leacy, psychiatrist[11] and Dr Johan Schoeman, clinical psychologist.[12]
[11] Exhibit 1, T Documents, T10, pages 102-112, Medical Report: Dr de Leacy.
[12] Exhibit 1, T Documents, T14, pages 122-132, Medical Report: Dr Schoeman.
In a report dated 11 November 2015, Dr de Leacy diagnosed the Applicant with chronic PTSD,[13] providing that the prognosis of the condition was “at least guarded but probably poor” and that “this condition will be long lasting even with further treatment”.[14]
[13] Exhibit 1, T Documents, T10, page 108, Medical Report: Dr de Leacy.
[14] Exhibit 1, T Documents, T10, page 110, Medical Report: Dr de Leacy.
In a report dated 11 December 2015, Dr Schoeman in referring to the Applicant’s mental health condition said that “The intensity, duration and complexity of the [Applicant’s] symptoms make the prognosis uncertain to poor”.[15]
[15] Exhibit 1, T Documents, T14, page 127, Medical Report: Dr Schoeman.
A Health Professional Advisory Unit Opinion was provided on 2 March 2016, having been completed by an Assessor whose professional disciple was listed as “registered nurse” with consultation from an “occupational physician”.[16] The opinion considered that the Applicant’s PTSD was fully diagnosed, fully treated and fully stabilised and met the requirements for being assigned 10 points under Table 5 of the Impairment Tables.[17]
[16] Exhibit 1, T Documents, T16, page 143, Health Professional Advisory Unit Opinion.
[17] Exhibit 1, T Documents, T16, pages 145-146, Health Professional Advisory Unit Opinion.
An Authorised Review Officer (ARO) on 4 March 2016, while affirming the cancellation decision, varied it to the extent that they found that the Applicant had a rating of 10 points under Table 5 of the Impairment Tables relating to his mental health.[18]
[18] Exhibit 1, T Documents, T17, pages 148-154, Decision and Notes of Authorised Review Officer.
The Applicant sought review of that decision by the SSCSD who in a decision dated 16 June 2016 remitted the matter to the Respondent with the direction that the Applicant met the DSP requirements.[19]
[19] Exhibit 1, T Documents, T19, page 157, Decision of the SSSD.
The Applicant received a compensation payment in relation to his workplace injury. As a consequence, on 8 July 2016 a preclusion period was imposed, precluding him from receiving a social security payment until 7 September 2017.[20]
[20] Exhibit 1, T Documents, T33, page 253, Centrelink Mainframe Screen.
On 18 September 2017, the Applicant lodged a claim for the DSP.[21] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work to include: “right forearm numbness due to injury to forearm, hand injury – knuckles fused, unable to grip or grab, numbness from elbow to fingertip, crush injury to lower spine, spine injury to back of neck, depression and PTSD”[22] conditions.
[21] Exhibit 1, T Documents, T21, pages 170-201, Claim for Disability Support Pension.
[22] Exhibit 1, T Documents, T21, page 197, Claim for Disability Support Pension.
In a medical certificate dated 19 September 2017, Dr Feri Mahani, general practitioner diagnosed the Applicant with schizophrenia with a date of onset being 19 September 2017 and lower back pain with a date of onset being 1 January 2014.[23]
[23] Exhibit 1, T Documents, T22, page 202, Medical Certificate: Dr Mahani.
On 4 April 2018, the Applicant attended a face to face assessment with a Job Capacity Assessor (JCA) whose professional discipline was recorded as “registered psychologist” with the assistance of a “mental health nurse”.[24] On 19 April 2018, the Assessor provided a JCA report providing the view that:[25]
·The Applicant’s mental health, shoulder and upper arm conditions were not fully diagnosed, fully treated or fully stabilised.
·The Applicant’s s spinal condition was not fully treated and fully stabilised.
·The Applicant had a capacity to work 15-22 hours per week within 2 years with intervention.
[24] Exhibit 1, T Documents, T25, pages 206-214, Job Capacity Assessment Report.
[25] Exhibit 1, T Documents, T25, pages 206-214, Job Capacity Assessment Report.
The Applicant’s claim was rejected on 20 April 2018,[26] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. The Applicant sought review of this decision.
[26] Exhibit 1, T Documents, T26, pages 215-216, Centrelink Notice: Rejection of Disability Support Pension Claim.
A Health Professional Advisory Unit (HPAU) Opinion was provided on 11 July 2018, based on a review of the available medical evidence and a telephone discussion with Dr Y. Khammar, general practitioner.[27] The HPAU provided the opinion that:[28]
·The Applicant’s right upper arm condition was fully diagnosed, fully treated and fully stabilised, but that there was insufficient medical evidence about the functional impacts of this condition to form an opinion regarding an appropriate impairment rating.
·The Applicant’s PTSD condition was not fully treated and fully stabilised.
·The Applicant’s schizophrenia did not meet the diagnostic criteria for a mental health condition under Table 5 of the Impairment Tables.
·The Applicant’s neurocognitive disorder was not fully diagnosed.
[27] Exhibit 1, T Documents, T28, pages 218-222, Health Professional Advisory Unit Opinion.
[28] Exhibit 1, T Documents, T28, page 222, Health Professional Advisory Unit Opinion.
On 12 July 2018, the decision to refuse the Applicant’s claim for DSP was affirmed by an ARO.[29]
[29] Exhibit 1, T Documents, T29, pages 223-231 Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the SSCSD, who affirmed the decision of the ARO on 4 October 2018.[30]
[30] Exhibit 1, T Documents, T2, pages 2-8, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 5 November 2018.[31]
[31] Exhibit 1, T Documents, T1, page 1, Application for Review.
On 4 September 2020, a Hearing was held for this application. At the Hearing, the Applicant was represented by Mr Philip Nolan of Counsel and the Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers.
Throughout the Tribunal process the Applicant provided further medical reports from Dr Peter Rofe, consultant psychiatrist and Mr Wayne Hilber, occupational therapist. In addition to the Applicant, both Dr Rofe and Mr Hilber gave evidence at the Hearing.[32]
[32] Exhibit 4, Hearing Brief, A7, pages 68-76, Report: Dr Rofe; A8, pages 77-83, Report: Mr Hilber; A10, pages 90-94, Report: Dr Rofe.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[33]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[34] and
3.does the Applicant have a continuing inability to work?[35]
[33] Section 94(1)(a) of the Act.
[34] Section 94(1)(b) of the Act.
[35] Section 94(1)(c) of the Act.
Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[36]
[36] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[37] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.
[37] Sections 6(3) and (4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or planned in the next two years.[38]
[38] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[39]
(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.
[39] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[40]
[40] Section 6(7) of the Determination.
The Impairment 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.[41] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[42]
[41] Section 6(2) of the Determination.
[42] Section 8(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or 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 POS within the next 2 years.
A person’s impairment is considered to be 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.[43]
[43] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[44]
[44] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[45]
[45] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 18 September 2017, being the date, the Applicant lodged his claim for DSP, and ending 13 weeks later on 18 December 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
IMPAIRMENT TABLES
The Impairment Tables set out in the Determination outline the requirements to assess a person’s functional impairment resulting from a condition which is considered to be permanent for the purposes of the Determination. The relevant descriptors for the Impairment Tables that have been raised as being applicable in this matter are set out below.
Relevantly, Table 2 of the Impairment Tables deals with upper limb function and provides as follows:[46]
Table 2 – Upper Limb Function
[46] Impairment Table 2 – Upper Limb Function, Part 3 of the Determination.
Introduction to Table 2
· Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
o a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
o results of physical tests or assessments.
· For the purposes of this Table upper limbs extend from the shoulder to the fingers.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
Relevantly, Table 5 of the Impairment Tables deals with mental health function and provides as follows:[47]
Table 5 – Mental Health Function
[47] Impairment Table 5 – Mental Health Function, Part 3 of the Determination.
Introduction to Table 5
· Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
· 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 has not been made by a psychiatrist).
· Self-report of symptoms alone is insufficient.
· There must be corroborating evidence of the person’s impairment.
· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
- interviews with the person and those providing care or support to the person.
· In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
· The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
· The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
· For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
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.
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention. The Respondent considers the Applicant’s impairments to which his present claim relates include right upper limb,[48] schizophrenia,[49] PTSD[50] and spinal[51] conditions.
[48] Exhibit 4, Hearing Brief, R2, Secretary’s Amended Statement of Issues, Facts and Contentions, pages 102-105, paragraphs 21-30.
[49] Exhibit 4, Hearing Brief, R2, Secretary’s Amended Statement of Issues, Facts and Contentions, page 105, paragraphs 31-33.
[50] Exhibit 4, Hearing Brief, R2, Secretary’s Amended Statement of Issues, Facts and Contentions, pages 105-108, paragraphs 34-49.
[51] Exhibit 4, Hearing Brief, R2, Secretary’s Amended Statement of Issues, Facts and Contentions, page 108, paragraphs 50-52.
There is no dispute between the parties that at the Relevant Period:[52]
·The Applicant’s upper limb condition was fully diagnosed, fully treated and fully stabilised.
·The Applicant’s PTSD was fully diagnosed.
·The Applicant’s spinal condition was not fully diagnosed, fully treated or fully stabilised.
·The diagnosis of schizophrenia made by Dr Mahani on 19 September 2017 was erroneous and can be ignored.
·The Applicant had met the POS requirements.
[52] Applicant’s Outline of Submissions and Secretary’s Closing Submissions.
The Tribunal accepts the party’s positions in relation to these matters. Based on the material before it, the Tribunal finds that the Applicant’s spinal condition and diagnosis of schizophrenia are not considered permanent for the purposes of assigning an impairment rating.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period the Applicant’s upper limb and PTSD conditions attracted 20 points or more under the Impairment Tables; and
2. if so, did the Applicant have a continuing inability to work?
EVIDENCE
There is a large volume of documentary medical evidence before the Tribunal in this matter, much of which is historical.[53] The Tribunal has reviewed this material and to aid in readability will not reproduce it in detail here, but rather refers to the references as made within the oral evidence provided at Hearing[54] and in the Applicant’s and Respondent’s contentions as outlined below.
[53] Exhibit 1, T Documents; Exhibit 2, ST Documents; Section 196 Documents; and Exhibit 4, Hearing Brief.
[54] Transcript.
In this section the Tribunal will outline the evidence provided by the Applicant personally and that of Dr Rolf and Mr Hilber provided at Hearing.
Evidence of the Applicant
In support of his application, the Applicant provided a statement dated 27 October 2019. In that statement the Applicant set out his personal history, his initial injury to his arm in 2009, post injury, accident in 2013, period between 2013 to 2018 and his mental health. What is clear from the Applicant’s statement is that the function of his right arm has not been the same since the injury in 2009, he loves his children very much and cares for them in the best way he is able to and his inability to work in the industry that he trained for and to have full function of his right arm and the associated injuries have impacted and continue to impact upon his mental health.[55]
[55] Exhibit 4, Hearing Brief, A9, pages 84-89, Applicant’s statement.
At Hearing, the Applicant gave evidence by telephone under affirmation. The Applicant was largely disengaged and in the Tribunal’s view having read reports of the Applicant’s previous interactions with medical practitioners, Assessors and the SSCSD was hostile in his responses to questions put to him by the Respondent on cross-examination. At one point the Tribunal had a short adjournment to allow the Applicant’s Counsel to seek instructions. The Applicant’s Counsel advised the Tribunal that he held instructions not to object to the admission of documents on the basis that they had not been put to the Applicant, rather just general proposition could be put to him rather than going through each and every document.[56]
[56] Transcript, page 54.
In response to questions asked by his Counsel the Applicant:[57]
·Confirmed his name, date of birth and address.
·Confirmed that he signed the statement dated 27 October 2019 and that he had recently reviewed it and that there was nothing he wanted to add, alter or delete from it.
·Said that the problems he outlined he was having with what he could and could not do and his mental health in his statement were to a similar degree in September 2017.
[57] Transcript, page 40.
On cross-examination, the Applicant:[58]
[58] Transcript, pages 41-52 and 54-59.
·Confirmed that he initially injured his right hand in 2009 when he fell through a window.
·Confirmed he returned to work in 2013 in a concrete cutting business.
·Agreed that part of his duties in the concrete cutting business included assisting the owner, checking where the taps and power box were, connect to the saw, hose everything down after the concrete was cut by connecting the hose to the water outlet and sometimes but not a great deal, engaging with customers on site.
·Said he was taught to operate a road saw.
·Explained that a road saw is: “… like a trolley form size sort of thing and you walk along with it, you stand in it and sort of walk along with it and it pretty much cuts into concrete.”
·Confirmed that from his recollection there was nothing different on the day that he was using the saw in 2013 when he was injured in a workplace accident from any previous time that he used it.
·Said, he cannot remember a great deal from back then.
·When his attention was drawn to a PIPA Notice of Claim, being a form he signed in 2013 which has a brief description of the incident, he confirmed that he had positioned the cutting machine at the southern end of the card. When asked about how he moved the machine he said it has a joystick and you “sort of lean on it and use the joystick” to move it.
·When taken to his statement dated 27 October 2019 where he said he could operate the road saw with a joystick and did not need both hands and asked whether he would actually use both hands, said no. Then taken back to the PIPA Notice form where he stated “My left hand was on the T control bar and my right hand was on the handlebar which is metal” it was put to him that the description demonstrated him using both hands, said “Not using, it is resting. It is just sitting there like a dead weight. I can’t use my right hand.”
·Said the joystick controls the whole machine.
·Confirmed that following the 2013 workplace incident he became qualified as a rigger and a dogger.
·Explained that a rigger is someone that holds – wraps a rope around an item and holds onto the rope as best as possible, or sometimes you do not need to hold the rope. The item then gets moved a short distance.
·Confirmed that he was trained to wrap a rope around an item as best as possible.
·Said the kinds of items being referred to were small packages. He said you are basically a second eye to the operator, just guiding them.
·Said he struggled through the course and nearly failed, but he did become qualified.
·Said he could not remember what the description of a dogger was.
·Said he guessed he agreed with the definition of dogging, that was read to him, as follows:
Dogging consists of two main aspects. The application of stringing techniques for the purposes of lifting a load, including selecting the method of lifting by considering the nature of the load, its mass and centre of gravity and inspecting lifting gear for suitability and condition.
Directing the operator for crane or lift in the movement of a load when the load is out of the operator’s view.
·Confirmed that in becoming qualified as a rigger and dogger he had to do a practical test and written test.
·Confirmed that following the 2013 workplace incident he went to work for a pest control company and a roller door installation company.
·When asked what, he was referring two when he told Dr Flanagan in 2014 that he had been promoted, said he cannot remember.
·When asked if he had undertaken work with EPIC Employment, a program of support provider in 2015, said “Yes, to be honest I can’t remember.”
·When asked if he engaged in work as a rigger and referred to his reporting to Dr Flanagan, said “I can’t remember”.
·When asked, what work he was taking part in when he reported that he was undertaking voluntary work of 50 hours a week in August 2015, said “I do not remember”.
·When referred to telling a job capacity assessor in October 2015 that he was able to use a pen, could do up buttons using his left hand, can lift a two litre carton of milk using his left hand, can lift a full bag of shopping in his left hand, could operate a vehicle and could pick up coins, however did have difficulty washing his hair, shaving his face and sustaining overhead activities and whether that was still correct, said “Yes. I’ve slightly trained myself. Like, I still – I do have difficulty doing it all and I still – yes, I shouldn’t be driving just with the left hand and so I don’t – I try not to.”
·Confirmed that in 2016 he attended a hearing for the Tribunal and gave evidence at that hearing which was true and correct.
·When referred to having told the Tribunal in 2016 that there had been no change in his arms since he was granted the pension, said “I guess so”.
·Said he could not remember if he was first granted the DSP in March 2010.
·When asked whether it was still correct at the time of his claim that there had been no change in his arm since 2010, said “I can’t remember.” He said “It’s still – yes, I can’t work, I can’t do anything…”
·When asked if he told Dr Rofe in 2019 that his conditions were still the same, said “I can’t remember”.
·When asked if he was taken to the report of Dr Rofe, said “It still won’t help me remember.”
·When asked then whether he would agree that when he reported to a doctor for medical assessment he had been trueful and given correct information, said “Yes”.
·When asked if he had been recommended to take anti-depressant medication since about 2013, said “I can’t remember”.
·Said that anti-depressant medication did nothing for him.
·When asked whether he had not followed the recommendations to take anti-depressant medication and to a similar suite of questions in relation to medication and the reports of Dr Flanagan and Dr de Lacey and the April 2018 face to face interview with the job capacity assessor, said “I can’t remember”.
·When asked whether he had been recommended to participate in CBT however had not done so and in response to a similar suite of questions in relation to reports from Mr John, Dr Paul and Dr Flanagan, said “I can’t remember”.
·When asked when he had been recommended to engage with a psychologist and psychiatrist but did not fully comply with this recommendation, said “I can’t remember”.
·Confirmed he had six children and that following his workplace incident in 2013 he had looked after his children.
·Confirmed that he was looking after his children twice a week or three or four times a fortnight if he was lucky and that he would cook meals for them and take them to school sometimes. Said that he did not help them into the car, for his younger children he said their mothers put them in the car and that the older children would help him get them out of the car.
·Confirmed he wears a seatbelt, that he puts it in his mouth and then pulls it across.
·When asked if he typed the email application to the Tribunal seeking review, said “I can’t remember. If I type it’s one finger at a time, very slow. If it’s written then I have.”
Evidence provided at Hearing by Dr Rofe
At Hearing Dr Rofe provided evidence by telephone under affirmation. In response to questions asked by the Applicant’s Counsel, Dr Rofe:[59]
·Confirmed his name and qualifications of MBBS Adelaide, Fellow of the Royal College of Australian and New Zealand Psychiatry, Fellow of the Faculty of Pain Management Australia and New Zealand College of Anaesthetist and Diploma of Psychotherapy.
·Confirmed that he did not want to add, alter or delate anything from his reports dated 26 June 2019 and 9 March 2020 and that they contain his opinions reasonably held.
·Confirmed that where he said in his report: “That he, I feel, would have difficulty with interpersonal relationships at work and education and training. He may have issues of irritability with staff or intrusive thoughts would make him quite anxious and avoidant.” that he was referring to his opinion in relation to the Applicant’s ability to work or perform training.
·When asked to look back and based on what he had read, the history he obtained and the documentation he had reviewed whether he had any view on the likelihood of the Applicant working from September 2017 until the proceeding two years that follow, that he thinks it is highly unlikely that he would have successfully been able to manage working in a meaningful way, interacting with other staff, taking instructions from employers and that in all likelihood he would have a high level of anxiety and possible irritable and angry outburst in that situation. Which is sort of consistent with his aforementioned documented PTSD.
·When asked if there was any treatment he would recommend for the Applicant, made reference to anti-depressant medication and to the Applicant having been tried on medication however there being a documented aversion to him taking it of which he thinks reflects the Applicant’s worldview on his mood disorder that it should be something that would be under his control and there was reference to the Applicant’s non-compliance with medication. He said there is no guarantee that anti-depressant would adequately treat his condition, it may give some improvement but overall, his PTSD makes it difficult.
·When asked if back in September 2017 the medication he was recommending was prescribed to the Applicant at that time and he was to comply with that medication, whether in his view it would have led to a significant functional improvement to a level enabling him to undertake work within two years, said:
No, I don’t – I don’t think it would necessarily alter the big picture. It may lead to some minor improvement but I would only see that as a relatively small wedge of the pie and, again, I think it is very difficult to sort of project that taking medication with a good response would lead to a dramatic improvement in his psychological status and PTSD.
[59] Transcript, pages 7-10.
On cross-examination, Dr Rofe:[60]
[60] Transcript, pages 10-19.
·Confirmed that an opinion is usually based on three things – a history provided by the person, by examining the person (their presentation) and documentary records.
·Confirmed that he first saw the Applicant on 11 June 2019 which led to his report dated 26 June 2019.
·Confirmed that in writing his report of 26 June 2019 he relied on the Applicant’s reporting and his observations in formulating his opinion as at that stage he did not have access to any other material outside of the briefing letter at that time.
·When asked what his understanding of the term ‘fully treated’ when he wrote in his report of 26 June 2019 “That one can assume that his major depression and chronic PTSD is fully treated, given the number of sessions he had.”:
Well, I’m not saying that it was successful but it would be that an adequate trial of antidepressants, if he had taken them in the prescribed manner, and the number of treatments from a psychologist was standard, psychologic treatment for PTSD was given, and it seemed that there was no appreciable benefit in a lasting sense from those treatments.
·Confirmed that he then provided a second report after having been provided with some documents.
·When asked about the Applicant’s engagement with anti-depressants as provided for in the reports of Dr Flannagan and Dr de Leacy, confirmed that his understanding was that the Applicant did not comply with the recommendations to take Escitalopram.
·Confirmed that it is usual for a patient to trial a number of different anti-depressants to identify which one works for them. That a trial would last six to eight weeks and there may be a dose change.
·Confirmed that he had read in Dr Flanagan’s report that the Applicant had reported an improvement after he agreed to start the SSRI medication.
·When asked if in the treatment of PTSD, a recommendation to engage with pharmacotherapy medication will be reasonable treatment recommendations, said yes, the role of anti-depressants in PTSD is now an accepted part of the pharmacotherapy for PTSD.
·When asked if he agrees with Dr Flanagan’s report where he indicated that he was of the view that treatment will require about three months and then the Applicant would be fit for full duties and that pharmacotherapy and psychotherapy were strongly recommended, then would his view be that with PTSD, if there is compliance with treatment recommendations, the Applicant was expected to return to full duties within three months? That:
Well, I think Dr Flanagan’s report has to be taken somewhat historically in terms of that report was dated back - where are we? That report was dated, I think, back in 26 March 2014 and that was relatively - relatively early on. I think the chronicity of this means a deal of symptomology he displays now - and I saw him only in 2019, has now become somewhat solidified and - and it is arguable whether that form of treatment now would be successful and then that would depend on [the Applicant’s] compliance with treated medication - treatment medication, of which is a separate sort of issue within itself, and I don’t think we can assume that if he did take it, one, we wouldn’t know whether he is fully compliant with it and, two, whether it would be the right antidepressant, or the best antidepressant, for him. But I think often psychiatrists say early on in the post-injury time that they give a timeframe of - which is relatively short in the time of the illness that there would be a response to that form of treatment initially, antidepressants which would then, hopefully, allow him to integrate more on a psychological dimension with standard techniques of psychology in terms of cognitive behavioural therapy, relaxation et cetera. But I sense from the report, and my contact, that the level of symptomology and arousal would make psychological techniques difficult in the absence of some improvement with antidepressants.
·Agreed the Applicant had not engaged with recommended treatment.
·Confirmed that he assessed the Applicant’s functional impact of his PTSD condition at the time he saw him in June 2019 relying on the Applicant’s self-reporting.
Evidence provided at Hearing by Mr Hilber
At Hearing Mr Hilber provided evidence by telephone under affirmation. In response to questions asked by the Applicant’s Counsel, Mr Hilber:[61]
·Confirmed his name and that he is an occupational therapist registered to practice with AHPRA.
·Confirmed that he did not want to add, alter or delate anything from his report dated 10 October 2019 and that it contains his opinions reasonably held.
[61] Transcript, page 25.
On cross-examination, Mr Hilber:[62]
·Confirmed he saw the Applicant in his home on 26 September 2019 and subsequently provided the report dated 19 October 2019 and that his opinion in that report was based on what he observed in the Applicant’s home and the testing which he undertook on 26 September 2019.
·Confirmed that he was provided with some documents however was not provided with the consultation notes from the Applicant’s treating general practitioners between 2011 and 2017.
·Was non-committal to any of the information put to him changing his opinion in relation to the Applicant’s function having been unlikely to have changed since the initial accident in 2009.
[62] Transcript, pages 25-34 and 60-63.
CONTENTIONS
At the conclusion of the Hearing, both parties were provided with an opportunity to provide written closing submissions. A summary of the Applicant’s and Respondent’s submissions are outlined below.[63]
Applicant’s contentions
[63] Note: All footnotes have been omitted from quotes reproduced from both the Applicant’s and Respondent’s Closing Submissions.
The Applicant’s primary contention is that nothing had changed between when the Applicant was granted DSP on 16 June 2016 (as a result of the decision of the SSCSD effectively reinstating his DSP) and when he made his new claim for DSP on 18 September 2017. The Applicant contended that his DSP was cancelled due to him having received a compensation payment rather than because it had been determined that he did not qualify for the DSP.[64]
[64] Applicant’s Outline of Submissions, page 3, paragraphs 8-12.
In support of this contention the Applicant provided:[65]
[65] Applicant’s Outline of Submissions, pages 3-4, paragraphs 12-16.
(a)Whilst the Applicant acknowledges that a new claim has been lodged on 18 September 2017, and this Tribunal is not estopped from departing from the 2016 Tier 1 decision, it is submitted that this decision should be given overwhelming weight in determining whether the Applicant qualified for the DSP as at September 2017.
(b) The Full Federal Court dealt with the issue of the Tribunal making findings inconsistent with earlier decisions under the Seafarers, Rehabilitation and Compensation Act 1992 (Cth) in Commonwealth of Australia v Snell (2019) 269 FCR 18. The Full Court held (at [76]):
Given that the existence of an earlier decision does not give rise to any limitation on the material which the Tribunal might consider on a review of a decision under the Seafarers Act, what then is the position when it is confronted with the existence of an earlier decision? The general approach of Bennett J in Cheung ought to be adopted
… An earlier decision by the decision-maker (including an earlier decision of the Tribunal which is deemed to be that of the decision-maker) is information or material with which the Tribunal may inform itself (s 33(1)(c) of the AAT Act) and it can give it the weight which it considers to be appropriate. Where no new evidence has been advanced which relevantly undermines or alters the effect of the earlier decision it is most likely that, if the application for review is not disposed of in a summary manner, the earlier decision will have significant if not overwhelming weight. Where, on the other hand, new information is available which suggest the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non- existent.
(c)It is submitted that there is no new evidence put forward which suggests that the 2016 Tier 1 decision was based on incorrect facts or limited knowledge. The facts put forward in this application were known to the AAT Tier 1 back in June 2016. The Respondent is simply compelling the Applicant to make the same arguments and provide evidence of the same issues that he needed to provide back in June 2016.
(d)Further, given that the 2016 Tier 1 decision assessed the evidence back in June 2016, and the qualifying period in this application is between September 2017 and December 2017, the AAT Tier 1 was much better placed to assess the extent of impairment and incapacity at that time than the Tribunal in this application, as it has to now assess the position back in 2017.
(e)In the premises, the Applicant submits that the 2016 Tier 1 decision should be given overwhelming weight in determining whether the Applicant qualified for the DSP in this application in September 2017.
The Applicant contended that his PTSD condition was fully treated and fully stabilised at the Relevant Period relying on the following:[66]
[66] Applicant’s Outline of Submissions, pages 6-8, paragraphs 18-28.
18. The evidence establishes that the Applicant has had the following treatment for his PTSD condition:
(a) He had nine sessions with a clinical psychologist, including with Mr Michael John on 16 October 2013 and 1 November 2013, 21 January 2014, 28 January 2014, 18 February 2014, and 4 March 2014, and with Dr Johan Schoeman on 25 November 2015, 3 December 2015, and 11 December 2015.
(b) He underwent six sessions of treatment with Dr Flanagan, psychiatrist, between 28 April 2014 and 28 July 2014.
(c) There is evidence of engagement with anti-depressant medication, including prescription for Escitalopram, an antidepressant, and two mood stabilisers: Olanzapine and sodium valproate.
…………………
22.In this case, the Respondent has not put forward any evidence about the particular type of medication that could be tried, or the type of counselling that should be tried. Without any particulars about the proposed treatment, the Tribunal cannot engage in a consideration of the factors in s 6(7) of the Impairment Tables. For example, without any information about the specific medication that ought to have been tried, the Tribunal cannot be satisfied that it was available to the Applicant at a reasonable cost.
23.Further, the evidence supports that any treatment undertaken by the Applicant during the qualification period was not likely to have resulted in significant functional improvement to a level enabling the Applicant to have undertaken work within 2 years. That was the evidence of Dr Rofe, psychiatrist, when he gave evidence in person. His evidence was that that the chronicity of the condition, the Applicant’s personality style, and response to treatment would mean that further treatment would be unlikely to be of significant benefit to enable him to undertake work within two years. He confirmed in evidence that even were the Applicant prescribed antidepressants in September 2017, while it might have led to a minor improvement, it would be a “relatively small wedge of the pie” and would not alter the big picture.
24.Further, in the report of Dr de Leacy, Psychiatrist, dated 11 November 2015, Dr de Leacy recommends further care from a psychologist at that time. As stated above, the Applicant was already seeing Dr Johan Schoeman, psychologist. He attended three sessions, and after the third session on 11 December 2015, Dr Schoeman recorded in his notes “Intensity, duration and limited response to treatment-poor prognosis … condition is permanent … I agree with impairment views of Dr de Leacy.”
25.Dr de Leacy did not recommend any anti-depressants in his report.
26.Further, in Dr de Leacy’s report, he noted that the Applicant’s prognosis was “at least guarded but probably poor. This condition will be long lasting even with further treatment”. The condition was described as “chronic”. He further states later in his report “The treatment mentioned does not make him any less fit for work”.
27.This is also the view that Health Professional Advisory Unit Opinion dated 3 March 2016 came to when it reported that the condition could be considered fully diagnosed, treated and stabilised.
28.In the premises, the evidence supports that the Applicant’s PTSD condition was fully treated and stabilised by September 2017. There is certainly no evidence of any specific treatment not previously undertaken by the Applicant which was reasonably accessible to the Applicant and which was likely to have resulted in significant functional improvement to a level enabling the Applicant to have undertaken work within 2 years.
The Applicant contended that the evidence supports his PTSD and upper limb conditions being assigned a rating of 10 points each under Table 5 and Table 2 respectively.[67]
[67] Applicant’s Outline of Submissions, page 8, paragraph 29.
The Applicant seeks to rely on the report of Dr de Leacy from 25 November 2015, the HPAU opinion of 2 March 2016 and evidence of Dr Rofe setting out:[68]
[68] Applicant’s Outline of Submissions, pages 9-10, paragraphs 31-34.
31. The Applicant submits that the report of Dr de Leacy from 25 November 2015 is sufficient to support a rating of 10 points, noting his evidence:
(a) relevant to social and recreational activities, he confirmed a moderate impairment and described the Applicant as “avoidant of most activities” and “risk averse.”
(b) relevant to interpersonal relationships, he described the Applicant as being “withdrawn”, anxious”, and “his relationship is at risk”.
(c) relevant to behaviour, planning and decision-making, he described the Applicant as “irritable” and “aggressive”.
(d) relevant to work/training capacity, he described the Applicant as “not able to work for the foreseeable future because of his distress” and stated “[the Applicant] is aggressive when … agitated” and “it is impossible for him to work at all in his current state of mind”.
32. The Health Professional Advisory Unit Opinion dated 2 March 2016 considered the Applicant to have a moderate impairment rating in the following domains:
(a) social/recreational activities and travel;
(b) concentration and task completion;
(c) behaviour, planning and decision-making;
(d) work/training capacity.
33. On 26 June 2019, Dr Rofe reported the Applicant tended to “limit himself to his children and … avoid social events”, “shift around and … not consistently stay with any one person or friend”, had “difficulties maintaining concentration”, and noted he “describes at times extreme irritability and … intrusive thoughts of aggression”.
34. DrRofe gave evidence to the effect that it would have been highly unlikely that the Applicant would have been able to successfully manage working in a meaningful way in September 2017 or the following two years. He thought there would be difficulty interacting with other staff, taking instructions, and there would be a high level of possible irritable and angry outburst.
The Applicant relies primarily on the report of Mr Hilber dated 10 October 2019 and evidence provided at Hearing and submits that it is reasonable to infer that his functional capacity would be similar during the Relevant Period having regards to the stable nature of his condition and his medical history.
In closing submissions, the Applicant contended that the evidence demonstrates that he met descriptors (b), (c), (d), (e) and (f) of the 10 point descriptor on Table 2 in relation to his upper limb condition as outlined in his Statement of Issues, Facts and Contentions, which provided:[69]
72.Descriptor (1)(b) concerns difficulty "picking up a light but bulky object requiring the use of 2 hands together" (emphasis added). In Mr Hilber's opinion, the Applicant "would have mild difficulty picking up a light but bulky object" because "greater planning and preparation is required to pick up light but bulky items using his left hand with stabilisation from his right arm." The evidence suggests that the Applicant is only able to pick up a light but bulky object using his left hand in conjunction with his right arm as a stabiliser, rather than the requisite two hands together. In any event, this causes the Applicant difficulty.
73.Descriptor (1)(c) concerns difficulty "holding and using a pen or pencil". Mr Hilber 's assessment was that "[the Applicant] is able to hold and use a pen or pencil using his left hand with a level of ability typically expected from a person using their non-dominant hand", noting that "the poor quality, reduced rate and increased effort... would not be considered to be functional".
74.Descriptor (1)(d) concerns difficulty "doing up buttons or tying shoelaces". The Applicant was assessed by Mr Hilber as having "severe difficulty tying standard shoe laces".
75 Descriptor (1)(e) concerns difficulty "using a standard computer keyboard". In Mr Hilber's opinion, the Applicant would have difficulty using a keyboard but could "with the use of his left hand only" which would be "equivalent to a typical, able body person using a standard computer keyboard with their non-dominant hand only".
76.Descriptor (1)(f) concerns difficulty "unscrewing a lid on a soft-drink bottle". In his report, Mr Hilber stated that "[the Applicant] would have no difficulty unscrewing the lid on a soft drink bottle" and "[he] would be able to complete this task most effectively using his left hand while bracing the bottle with his right arm". Mr Hilber noted that the "[Applicant] was observed performing similar tasks successfully". In Appendix 1 to his report, he stated "[the Applicant] used his right arm to hold objects against his body, while using his left hand to interact with the object. E.g. Open the coffee jar".
77. The Applicant contends that this indicates at least some level of difficulty in that the Applicant is required to use his body to stabilise the object against before unscrewing the lid.
[69] Exhibit 4, Hearing Brief, A1, Applicant’s Statement of Issues, Facts and Contentions, page 14-15, paragraphs 72-77.
Further the Applicant contended:[70]
36. ……… As stated in the relevant table, the Applicant needs to show that he has “difficulty” with the activities. It does not matter whether the level of difficulty was significant or minor.
37. Mr Hilber was of the view that it was unlikely that the Applicant’s upper limb function would have been significantly different on 18 September 2017. This opinion was formed on the basis that there was no evidence of an intervening injury or complication since September 2017, which might have resulted in a decline in function. In the Applicant’s submission, this is a compelling inference to make.
38. On 20 August 2015, Dr Young, general practitioner, reported the Applicant had “numbness in (R) arm & hand, limited use of (R) arm, hand” and “neuropathic pain in (R) arm”. In the absence of compelling evidence to demonstrate that the Applicant’s upper limb condition had improved leading up to the date of the claim and then subsequently declined prior to Mr Hilber’s assessment in 2019, the Applicant submits that the Tribunal can safely make an inference that there was a moderate functional impairment as at 18 September 2017.
39. In cross-examination, Mr Hilber’s evidence was challenged on the basis of evidence that the Applicant had obtained an unknown qualification in dogging and rigging at some point in 2014. A definition of dogging and rigging was read to Mr Hilber, and he was asked if becoming qualified to do such work would change his assessment. It did not, as he did not know what the qualification process involved or whether any reasonable adjustments were made. Further, on the descriptions of what dogging and rigging involved, for example, “wrapping a rope around an item”, his opinion was that it would not necessarily require the use of two hands.
40. A point was also made about whether the Applicant would have been able to operate a road saw to work in concrete cutting. Mr Hilber was taken to a PIPA claim form and challenged whether the description of the Applicant’s operation of a road saw was inconsistent with his assessment of his functional impairment. He confirmed that it was not.
41. In the Applicant’s submission, allowing for some improvement in function since the initial injury healed in 2009, his functional impairment has been consistent, and the appropriate rating is 10 points under Table 2.
[70] Applicant’s Outline of Submissions, pages 11-12, paragraphs 36-41.
The Applicant contends that at the Relevant Period he had a continuing inability to work, in that he had completed a POS and relying on the evidence of Dr Rofe and Dr de Leacy he would not haven able to manage working in a meaningful way within 2 years from the date of claim.[71]
Respondent’s contentions
[71] Applicant’s Outline of Submission, pages 12-14, paragraphs 42-54.
In closing submissions, the Respondent summarised their contentions as follows:[72]
(a) The Tribunal should not place any weight on the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 16 June 2016.
(b) The PTSD condition was not fully treated and stabilised at the qualification period.
(c) There is insufficient corroborating evidence referable to the qualification period for the Tribunal to be satisfied of the functional impairment arising under Table 5 – Mental Health Function of the Impairment Tables.
(d) There is insufficient corroborating evidence referable to the qualification period for the Tribunal to be satisfied of the functional impairment arising under Table 2 – Upper Limb Function of the Impairment Tables.
(e) The Applicant did not have a continuing inability to work at the qualification period.
[72] Secretary’s Closing Submissions, page 2, paragraph 3.1.
The Respondent submitted that the issues within the present application are different to the issues the SSCSD considered in June 2016 and therefore contended that this Tribunal should not place any weight on the decision of the SSCSD dated 16 June 2016.[73] In support of this contention the Respondent submitted:[74]
[73] Secretary’s Closing Submissions, pages 2-3, paragraphs 4.1-4.2.
[74] Secretary’s Closing Submissions, pages 3-5, paragraphs 4.2.
(a) The Tribunal is to undertake a de novo review of the decision to reject the Applicant’s claim for DSP lodged on 18 September 2017, by having regard to the evidence as at the time of the Tribunal’s decision, and “standing in the shoes” of the delegate.
(b) The Full Federal Court in Snell did not contemplate the legislation this Tribunal is tasked with considering and specifically stated at paragraph [55] that its treatment of the Tribunal’s powers to manage and direct matters are restricted to the context of the Seafarers, Rehabilitation and Compensation Act 1992 and the Safety, Rehabilitation and Compensation Act 1988:
[55] It must be kept steadily in mind that here, the consideration of the power of the Tribunal to refuse to consider the merits of a prior determination arises in circumstances where, under the Seafarers Act, the employer is expressly empowered to reconsider its prior decisions. Similar circumstances arise under the SRC Act. This is important as the conclusiveness of any administrative decision will be affected by the statutory scheme pursuant to which it is made: Godwin v Repatriation Commission (2008) 168 FCR 471, 482 [38]. It ought also be stressed that the consequences of the admixture of the provisions of the AAT Act and of any other legislation which does not afford the decision-maker the power of reconsideration are not dealt with in these reasons.
[emphasis added]
(c) Snell considered the authority in Plumb v Comcare (1992) 39 FCR 236 where the Federal Court of Australia considered the Compensation (Commonwealth Employees) Act 1971 and the Commonwealth Employees' Rehabilitation and Compensation Act 1988 and the implication of a specific time frame. The Federal Court held that the earlier decision relating to the initial period of time was not a bar to, nor had any limiting effect on, the Tribunal’s consideration of an application in relation to a subsequent period of time even though it related to the same injury and found:
[24] The 1988 decision of the AAT was based on the evidence that was before it and considered the applicant's case asserting incapacity upon the evidence as it stood at that time. In the circumstances of this case, the AAT did not have power, nor did the original decision maker have power, to make a decision that extended beyond the date of the decision. It is true that the AAT said in its reasons which led to the 1988 decision that from 20 July 1987 the applicant "ceased to be incapacitated to any degree whatsoever". But, as mentioned earlier, it said later in its reasons that it could not "pre-judge any new application which may arise as a result of the alleged recurrence of the applicant's disease." Thus, the AAT, although thinking it was appropriate to make the observation which it did about 20 July 1987, made it clear that this was not a finding which could bind anybody with respect to any future application because a future application would be with respect to a later period of incapacity and the AAT (also the respondent) cannot bind itself in advance of any such subsequent application.
[25] This is sufficient to dispose of this appeal; but there is an independent ground for doing so. Section 62 of the 1988 Act provides…
[emphasis added]
(d) The AAT1 in 2016 was reviewing a decision which cancelled the Applicant’s DSP on 6 November 2015 – two years prior to the qualification period that this Tribunal needs to consider. The issue before the AAT1 was whether the Applicant was qualified for DSP as at the date of cancellation – 6 November 2015.
(e) This Tribunal is tasked with a different issue and is required to review the Applicant’s qualification for DSP during the qualification period - 18 September 2017 to 18 December 2017.
(f) Even if the Applicant was qualified in 2015, it in no way follows that the Applicant was qualified during the qualification period in 2018.
(g) The Full Federal Court in Snell found at [76]:
… Where, on the other hand, new information is available which suggest the earlier decision was based on incorrect facts or limited knowledge, be it scientific knowledge or otherwise, the weight which might be afforded to the earlier decision may be minimal or non- existent…
In this matter the weight of evidence is that the Applicant’s psychological condition was not fully treated and stabilised during the qualification period. Relevantly, the Applicant’s last engagement with a clinical psychologist or any mental health professional was in 2015 – the same time as his DSP was cancelled. Since 2015, the Applicant has not engaged with psychotherapy or pharmacotherapy. Therefore, for approximately two years prior to lodging the claim for DSP on 18 September 2017, the Applicant was not engaged in any treatment for his psychological condition. The circumstances surrounding the Applicant’s treatment regime for his psychological condition in 2017 are very different to the circumstances in 2015 and this is the ‘new information’ contemplated in Snell.
(h) Further, there is insufficient evidence referrable to the qualification period for the Tribunal to be satisfied of functional impairment under Table 2 or Table 5. The evidence at the qualification period either predates the qualification period by approximately two years or postdates the qualification period by two years. The Impairment Tables provide that any impairment rating being assigned for the impairment experienced during the qualification period must be corroborated by evidence and that self- reporting of the impairment during the qualification period alone must not be taken into account when applying the Impairment Tables.
The Respondent contends that the Applicant’s PTSD condition was not fully treated and fully stabilised at the Relevant Period outlining the following history:[75]
[75] Secretary’s Closing Submissions, pages 5-8, paragraph 5.2.
(a) Following the workplace incident in 2013 the Applicant reported symptoms of feeling anxious and nervous to Dr Arlott, general practitioner on 3 October 2013.
(b) Dr Arlott referred the Applicant to the mental health outpatient department at Rockhampton Hospital6.
(c) The Applicant presented to Mr Michael John, clinical psychologist on 16 October 2013. Mr John recommended counselling, SSRI and appropriate CBT.
(d) The Secretary agrees with the Applicant’s submission that the Applicant presented to Mr John six times - twice in 2013 (1 October 2013 and 01 November 2013) and four times in 2014 (21 January 2014. 28 January 2014, 18 February 2014 and 4 March 2014). However, in his report dated 7 March 2014, following the last session, Mr John recommended further treatment namely, four further CBT oriented treatment sessions and reported that the Applicant had ceased the recommended SSRI. Mr John recommended the medication be reinstated.
(e) The Applicant did not continue to engage with Mr John for CBT or counselling and there is relevantly no evidence past the 7 March 2014 report regarding consultations with Mr John. There is also no evidence that the Applicant engaged with any other provider for CBT treatment. Dr Rofe, during cross- examination, agreed that CBT was standard treatment in conjunction with anti- depressant medication for the treatment of PTSD and that engagement with medication, and psychotherapy including CBT and education would all form part of the treatment protocol for the treatment of PTSD.
(f) In March 2014, the Applicant saw Dr Flanagan, psychiatrist for the purposes of a medico-legal assessment and Dr Flanagan recommended: a referral to a psychiatrist; engagement with pharmacotherapy – a mood stabiliser, SSRI, beta blocker and sleeping tablet, and psycho education into nature, treatment and potentially good prognosis of the condition. Dr Flanagan was of the opinion the Applicant has had effectively no treatment.
(g) The Secretary agrees with the Applicant’s submission that the Applicant presented to Dr Flanagan six times in 2014. However, the Secretary refutes the Applicant’s contention that there is evidence of engagement with an anti- depressant and two mood stabilisers. The Secretary submits, at its highest the evidence indicates that the Applicant engaged with the SSRI escitalopram for a very brief time because Dr Flanagan reported an improvement in mood following the Applicant’s reporting that he commenced escitalopram. However, the Tribunal cannot be satisfied that the Applicant engaged with any other medication and notes the following in support of this submission:
(i) In April 2014 Dr Flanagan prescribed an SSRI - escitalopram and mood stabiliser olanzapine noting on 28 April 2014 the Applicant reported that he had not yet started medication.
(ii) In May 2014 the Applicant reported the antidepressants were helping and Dr Flanagan observed that he was much improved noting the Applicant reported that he returned to the gym, was sleeping well, was less irritable, less stressed.
(iii) The Applicant was not complying with all the recommended medication. The Applicant reported on 26 May 2014 that ‘he wasn’t taking olanzapine most nights’.
(iv) On 26 June 2014, Dr Flanagan added sodium valproate to the Applicant’s medication regime and on 28 July 2014, at the last session with Dr Flanagan the Applicant claimed that he was taking escitalopram and sodium valproate. On 28 July 2014 Dr Flanagan also noted concerns with the Applicant’s compliance with the prescribed medication.
(v) At the time of the claim for DSP and during the qualification period, the Applicant was not engaged with any medication for his psychological condition.
(vi) Further, Dr Rofe’s evidence during cross-examination was that it would be useful to trial a number of different antidepressants and that engagement with medication was standard treatment.
(h) On 11 November 2015, the Applicant presented to Dr de Leacy, consultant psychiatrist however, this was not for treatment but for medico legal purposes. Dr de Leacy was aware of the Applicant’s history and still recommended ten sessions with a psychologist, three sessions with a psychiatrist and antidepressant medication reporting that ‘antidepressant medication may be of value’. The Secretary refutes the Applicant’s submissions that Dr de Leacy ‘did not recommend any anti-depressants in his report’.
(i) The Applicant was prescribed Lexapro, an antidepressant medication in November 2015 by Dr Paul, general practitioner. But the Applicant never took the prescribed medication. The PBS records from July 2015 to July 2019 show no record of any antidepressant prescription being filled by the Applicant.
(j) In November 2015, Dr Paul also recommended that the Applicant undertake CBT however, there is no evidence that the Applicant commenced CBT.
(k) The Secretary agrees with the Applicant’s submission that the Applicant presented to Dr Schoeman, clinical psychologist three times in 2015. The first presentation was on 25 November 2015 and the last presentation was about two weeks later on 11 December 2015.
(l) Dr Schoeman also recommended future treatment of psychotherapy and medication. The Applicant did not comply with this treatment recommendation.
(m) December 2015 was the last engagement the Applicant had with a mental health professional until his claim for DSP when he presented to Dr Mahani, general practitioner who recommended a referral to a psychiatrist. But the Applicant did not attend the appointment with the psychiatrist.
Further the Respondent contended that:[76]
[76] Secretary’s Closing Submissions, pages 8-10, paragraphs 5.3-5.11.
5.3 At the time of his claim for DSP, and during the qualification period the Applicant was not compliant with the treatment recommendations for him to engage with medication and CBT. Further, the Applicant had limited engagement with psychotherapy, ceasing any engagement in 2015 – two years prior to his claim for DSP.
5.4 The Applicant has not engaged with medication despite the recommendations from psychiatrists – Dr Flanagan and Dr de Lacey, clinical psychologists – Dr Schoeman, Dr John and his general practitioner Dr Paul. In April 2014 he agreed to commence an SSRI and this appears to have been done with the Applicant reporting that the antidepressant had helped him however, by July 2014 Dr Flanagan noted concerns over noncompliance and the evidence is that the Applicant did not re-engage with any pharmacotherapy.
5.5 In respect of psychotherapy the evidence indicates limited engagement with Dr Flanagan, Mr John, and Dr Schoeman with the last attendance to a mental health professional occurring in December 2015 – two years prior to the Applicant lodging the claim for DSP. Further, the Applicant has not engaged in CBT as recommended by Mr John and Dr Paul.
5.6 Dr Rofe’s evidence during re-examination was that the Applicant’s treatment with Dr Schoeman should have been ongoing which was Dr Schoeman’s recommendation as well, but the Applicant only engaged with Dr Schoeman on three occasions within a two week period. Dr Rofe’s evidence was that given the complexity of this case the psychological techniques offered by Dr Schoeman were not enough and there should have been an ongoing treatment plan.
5.7 The Secretary acknowledges the Applicant’s contention that ‘the Respondent has not put forward any evidence about the particular type of medication that could be tried, or the type of counselling that should be tried’. The Secretary refutes this contention and submits that the overwhelming evidence from the practitioners, that the Applicant has engaged with, form the evidence of the type of treatment that is recommended for the Applicant:
(a) Medication namely, an antidepressant particularly an SSRI (escitalopram sold under the brand name Lexapro) as recommended by Dr Flanagan, Dr de Leacy, Dr Paul and Dr Schoeman; and
(b) Psychotherapy as recommended by Dr Schoeman, including engagement with CBT (as recommended by Mr John and Dr Paul), further presentations to a psychologist (as recommended by Dr de Leacy), and a psychiatrist (as recommended by Dr Mahani).
5.8 The Secretary submits that the above treatment recommendation, summarised as engagement with pharmacotherapy and psychotherapy, are reasonable treatment as defined. Relevantly, when it was put to Dr Rofe he agreed that CBT was standard treatment in conjunction with anti-depressant medication. Dr Rofe also agreed that engagement with medication, engagement with psychotherapy including CBT and education would all form part of the treatment protocol for the treatment of PTSD.
5.9 The Secretary also acknowledges the Applicant’s contention that any treatment undertaken by the Applicant during the qualification period was not likely to have resulted in significant functional improvement to a level enabling the Applicant to have undertaken work within 2 years. The Secretary refutes this contention and relies on the following:
(a) The evidence from Dr de Leacy is that the Applicant would benefit from psychological care and medication may be of value. Dr de Leacy also did not contemplate whether the Applicant could return to work as defined in the legislation instead relying on the fact that the Applicant was not trained in sedentary work and was only trained in work involving equipment to conclude that the Applicant cannot work. The term “work” is defined in subsection 94(5) of the Act, as work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage that exists in Australia, even if not within the person's locally accessible labour market. The term “work” is not limited to the Applicant’s previous experience.
(b) The totality of the evidence from Dr Flanagan is that the Applicant is not fit for full duties until his PTSD is treated which would require up to three months and in respect of work Dr Flanagan only contemplated previous work and not work as defined in the legislation.
(c) On the Applicant’s own reporting to Dr Flanagan he perceived some benefit when he trialled an antidepressant such that Dr Flanagan was of the view the Applicant was ‘much improved’.
(d) The evidence from Dr Flanagan in 2014 is that with treatment he was expected to return to full time duties within three months.
5.10 To the extent that Dr Rofe based his view on the Applicant’s personality and belief system regarding wellness the Secretary submits that the Applicant’s personality as a reason for refusing treatment is not a sufficient reason to refuse treatment. The Secretary relies on the Full Court’s decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Jansen [2008] FCAFC 48, where the Full Court of the Federal Court stated at [39]:
...the appropriate question for the decision maker to ask is, "Am I satisfied that there is a reason that compels, in this case, Mr Jansen ... not to undertake treatment?" Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each.
(emphasis added)
5.11 The Tribunal is required to apply an objective and subjective test to determine if there is a reason that compels the Applicant not to undertake the recommended treatment. The Secretary contends that the Applicant’s own belief in the efficacy or non-efficacy of recommended treatment does not amount to a “medical or other compelling reasons to refuse treatment” that has been recommended by treating practitioners. The evidence from Dr Flanagan in 2014 is that with treatment he was expected to return to full time duties within three months. The Applicant’s clear choice to refuse to engage in treatment cannot be sufficient to conclude that the condition was fully treated and stabilised especially when treatment was expected to result in return to full duties. Dr Rofe was also of the view that engagement with medication, engagement with psychotherapy including CBT and education would all form part of the treatment protocol for the treatment of PTSD.
The Respondent contended that there is insufficient corroborating evidence referrable to the Relevant Period to assign an impairment rating under Table 2, or under Table 5, should the Tribunal find that the Applicant’s PTSD was fully diagnosed, fully treated and fully stabilised.
The Respondent referred the Tribunal to its decision in Wignall and Secretary, Department of Social Services [2019] AATA 1979 (Wignall case) where the Tribunal found:
[47] The issue before the Tribunal is whether the historical evidence is sufficient to corroborate the Applicant’s self-reported symptoms and functional impairments such that a current impairment rating can be assigned under the Impairment Tables. On this matter the Tribunal accepts the contentions of the Respondent that the current evidence before the Tribunal is insufficient to rate the Applicant’s MCS and spinal conditions under the Impairment Tables. As such, I find that the Applicant’s MCS condition can be assigned 0 points under Tables 1, 13 and 15 of the Impairment Tables and his spinal condition can be assigned 0 points under Table 4 of the Impairment Tables.
In the Wignall case the medical evidence relatable to the relevant period was based on self-reports of the Applicant. In that case the Applicant sought to rely on a medical report dated in 2012 some 6 years prior to the relevant period in question of which the doctor when contacted said he could not comment on the Applicant’s prognosis or current functional impairment. The other medical material was found by the Tribunal to offer a historical view in relation to the functional impact of the Applicant’s condition since onset in 1985 and 2020 and as such was of limited value to the statements that the Applicant’s condition cannot be cured and the effects may worsen.[77]
[77] Wignall and Secretary, Department of Social Services [2019] AATA 1979 at [43]-[46]
The Respondent contended in this regard that:[78]
6.4 Dr Rofe and Mr Hilber have both given evidence that they have relied on the Applicant’s presentation in 2019 to formulate their opinions – this presentation in 2019 was two years after the claim for DSP was lodged and is not referable to the qualification period.
6.5 Dr de Leacy has provided a report in November 2015 which clearly references the condition at that time and does not contemplate that the Applicant was able to re-train as a dogger and rigger, obtain a promotion and undertook 50 hours per week of volunteer work all of which occurred after the 2013 workplace incident.
6.6 The Secretary maintains that there is insufficient corroborating evidence referrable to the qualification period to assign an impairment rating under Table 2 or Table 5 at the qualification period and also relies on the specific submissions that follow in respect of Tables 2 and 5.
[78] Secretary’s Closing Submissions, page 12, paragraphs 6.4-6.6.
The Respondent whilst conceding that the Applicant’s upper limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period, contended that there is insufficient corroborating evidence of the Applicant’s functional impairment at the Relevant Period to assign a rating under Table 2.[79]
[79] Secretary’s Closing Submissions, page 14, paragraph 8.1.
The Respondent contended that should the Tribunal disagree and is minded to rate the Applicant’s upper limb condition that at most the condition rated 5 points under Table 2 of the Impairment Tables during the Relevant Period.[80]
[80] Secretary’s Closing Submissions, pages 14-15, paragraph 8.1.
The Respondent contended that no weight should be placed on the report from Mr Hilber who saw the Applicant on 26 September 2019 and had made it clear in that report that his opinion was based on the observed functional activity on 26 September 2019 which was confirmed during cross examination of Mr Hilber.
The Respondent contended that the assumption of Mr Hilber that on 18 December 2017 it was unlikely that that Applicant’s upper limb function would have been significantly different to that which he described in his report and that this is also likely to be true for the period between the initial recovery following the injury to 18 December 2017 was incorrect.[81] The Respondent contended that such an assumption is not supported by the contemporaneous records which reference the following:[82]
(a) On 8 April 2010 Dr Torres reported the Applicant can no longer use his right hand. However, this is not supported by the Applicant’s ability to operate a road saw or retrain as a dogger and rigger after the 2013 workplace incident.
(b) In August 2015, Dr Young reported limited use of right arm.
(c) By December 2015, Dr Schoeman reported the Applicant’s arm was affected by a previous injury but was well managed and caused minimal or limited impact on his ability to function.
[81] Secretary’s Closing Submissions, page 15, paragraphs 8.2-8.3.
[82] Secretary’s Closing Submissions, page 15, paragraph 8.3
The Respondent contended that Mr Hilber’s opinion that he can estimate the level of impact two years prior to the assessment because the condition has remained unchanged is not supported by the evidence. The Respondent further contended that there is insufficient documentary evidence referrable to the Relevant Period for Mr Hilber to reasonably form his opinion regarding functional impairment at the Relevant Period because the available evidence is from 2015 approximately two years prior to the DSP claim being lodged.[83]
[83] Secretary’s Closing Submissions, page 15, paragraphs 8.4-8.5.
The Respondent further referred the Tribunal to the Applicant’s self-reporting in relation to his upper limb condition as follows:[84]
[84] Secretary’s Closing Submissions, pages 16-17, paragraph 8.9.
(a) The Applicant has repeatedly contended that his condition has not changed since he was granted the pension in 2010. When it was put to him, the Applicant agreed with his reporting to the Job Capacity Assessor (JCA) in October 2015 and that the condition has remained the same as per his report to the JCA. Relevantly, he reported he was ‘able to use a pen, can do up buttons using left hand, can lift 2 ltr carton of milk using left hand, can lift a full bag of shopping in his left hand, can operate a vehicle, can pick up coins, reported difficulty with washing hair, shaving his face and sustaining overhead activities’. Relevantly, the JCA assessed the upper limb condition as 0 points under Table 2.
(b) Following the injury to his upper limb in 2009, the Applicant was able to engage in work as a concrete cutter using a road saw and become qualified as a dogger and rigger which involved a practical and written test. The Applicant agreed that rigging covers activities such as: moving, placing or securing a load using mechanical load shifting equipment and erecting or dismantling cranes of hoist. The Applicant also agreed that dogging consisted of two main activities - the applications of slinging techniques for the purposes of lifting a load, including selecting the method of lifting and inspecting the lifting gear and directing the operator of a crane or hoist in the movement of a load when the load is out of the operators view.
(c)In November 2015, the Applicant reported that he can drive a car and holds a valid driver’s licence. He also reported that he could drive an automatic and manual car.
(d)(d)He also reported to Dr Flanagan in 2014 that he was promoted to a supervisor and undertook 50 hours of volunteer work.
(e)His evidence to the Tribunal was that he was able to care for his children, including cooking for them taking them to school, and playing with his children.
(f)His claim that he cannot do up buttons in his statement is not consistent with his reporting to the JCA in October 2015 and his claim that his condition has not changed.
(g)His claim that he couldn’t lift anything big with both hands is not consistent with what Mr Hilber observed during the 2019 assessment namely that the Applicant was observed to use his right hand as a stabiliser and could manipulate the object with his left hand.
(h)The Applicant has also been observed to be able to hold and use a pen or pencil, given evidence that he typed his Application for Review, completed the handwritten form for medical review in 2015 and completed some parts of his handwritten application for DSP in 2017.
The Respondent contends that the Applicant had a work capacity of greater than 15 hours per week at the Relevant Period relying on the JCA report dated 19 April 2018, the views provided by Dr Flanagan, and in particular that the Applicant reported to him that in 2014 he undertook 50 hours of volunteer work.[85]
[85] Secretary’s Closing Submissions, pages 18-19 paragraphs 9.1-9.3.
CONSIDERATION
The starting point in this matter is that the Tribunal is tasked to undertake a de novo review of the decision to reject the Applicant’s claim for DSP made on 18 September 2017. This requires the Tribunal to have regard to the evidence as at the time of the Tribunal’s decision[86] while standing in the shoes of the delegate.[87]
[86] As per Kiefel J in Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [142]-[143].
[87] Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 943; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591.
As such in dealing with the Applicant’s contentions that the decision of the SSCSD made in June 2016 should be given ‘overwhelming weight’ the Tribunal notes it is required to review all material before it and not to simply rely on the evidence as it was at a previous point of time, especially a point of time that was well in advance of the Relevant Period.
The Applicant contends that there has been no new evidence put forward that suggests the SSCSD decision of June 2016 was based on incorrect facts or limited knowledge. To that point this Tribunal notes that consistently with a de novo review it is to examine the matter afresh.
Having had the benefit of reviewing over 500 pages of material in comparison to the 135 pages before the SSCSD at the time of making its June 2016 decision, the Tribunal does not accept the contentions made by the Applicant in regards to the weight that should be afforded to the June 2016 decision. The Tribunal accepts the contentions made by the Respondent in this regard.
The task before this Tribunal is different to that of the SSCSD in its decision of June 2016 in that this Tribunal must consider the Applicant’s qualification for DSP as at the Relevant Period commencing on 18 September 2017, rather than whether his DSP should have been cancelled pursuant to the decision made on 6 November 2015. The Tribunal places no weight on the June 2016 decision of the SSCSD for a number of reasons. Firstly, it is unclear to this Tribunal exactly what was relied upon by the SSCSD in that decision to make the assignment of impairment points beyond a heavy reliance on the self-reporting of the Applicant. Secondly, there is now more information available to this Tribunal in which it is noted that the Applicant’s descriptions of what he could and could not do and how his mental health condition was affecting him have changed over time. Thirdly, in this matter the Applicant himself did not assist the Tribunal in resolving concerns it had in relation to his conflicting self-reporting of his functional impairment as his standard response to questions put to him by the Respondent was that he did not remember and that he was unable to work.
Did the Applicant’s right upper limb and PTSD conditions attract 20 points or more under the Impairment Tables during the Relevant Period – section 94(1)(b) of the Act?
PTSD condition
As previously outlined the Parties agree that the Applicant’s PTSD condition was fully diagnosed at the Relevant Period. Based on the medical evidence before it the Tribunal accepts this was the case.
The present issue is whether the Applicant’s PTSD condition was fully treated and fully stabilised during the Relevant Period and if so, what impairment rating should be assigned under Table 5 of the Impairment Tables.
As outlined above the Applicant contends that this condition was fully treated and fully stabilised on the basis that he had undertaken a number of treatment sessions with Mr John, Dr Schoeman and Dr Flanagan between October 2013 and December 2015. While the Tribunal accepts the prognosis of the Applicant’s PTSD condition was poor, it notes that the overwhelming view in the medical reports was that further treatment had been recommended however was not undertaken by the Applicant. Such treatment included anti-depressant medication and CBT. The state of the evidence up to the point of the reports of Dr Rofe was that it was recommended that the Applicant undertake further treatment.
In providing his written reports and giving evidence at Hearing, Dr Rofe was clear that his initial report and opinions were based solely on the Applicant’s self-reporting and observed presentation in June 2019. Having been provided with further information leading to the preparation of his second report and that provided at Hearing, the Tribunal considers that Dr Rofe’s evidence in relation to functional impairment and the utility of further treatment for the Applicant’s PTSD was in reference to his time of examination of the Applicant rather than the Relevant Period. As such, based on the evidence before it and the submissions made by the Applicant and Respondent, the Tribunal, does not find that evidence provided by Dr Rofe assists to establish that the Applicant’s PTSD was fully treated and fully stabilised during the Relevant Period, that is not to say it may not assist with any subsequent claims for DSP that the Applicant may choose to make.
The Tribunal further notes that over the history of the Applicant’s engagement with the DSP the nature of the Applicant’s symptoms have changed, the Applicant has not engaged with recommended treatment despite at one time reporting that anti-depressant medication was helping. It may well be that the Applicant’s PTSD is now at a point of chronicity so that no further treatment would be recommended, however there is no clear evidence before this Tribunal that establishes that was the case during the Relevant Period, being almost two years prior to the Applicant’s engagement with Dr Rofe.
The Tribunal is persuaded by the contentions outlined above by the Respondent and finds that based on the material before it the Applicant’s PTSD condition was not fully treated and fully stabilised during the Relevant Period. Accordingly, this condition is not considered permanent for the purposes of applying Table 5 of the Impairment Tables and the Tribunal is unable to assign any impairment points.
In relation to the functional impairment caused by the Applicant’s PTSD condition, the Tribunal accepts that the condition does have a functional impairment, however notes that even had it have been satisfied that the condition was permanent for the purposes of assigning an impairment rating, given the changing nature of the Applicant’s reporting and that the supporting medical evidence before the Tribunal is not referable to the Relevant Period (being either well in advance or well after the Relevant Period) the Tribunal would have been unable to assign an impairment rating above zero.
Upper limb condition
As previously outlined the Parties agree that the Applicant’s upper limb condition (as it relates to his right arm) was fully diagnosed, fully treated and fully stabilised at the Relevant Period. Based on the medical evidence before it the Tribunal accepts this was the case. As such the task for the Tribunal is assign an impairment rating under Table 2 of the Impairment Tables.
The Applicant contends that his upper limb condition should be assigned 10 impairment points under Table 2 of the Impairment Tables. The Tribunal notes at this point that even should the Tribunal agree with this contention based on its finding regarding the Applicant’s PTSD condition his claim for DSP would still fail.
The Applicant made this contention seeking to rely on the evidence provided by Mr Hilber, submitting that his report whilst authored in October 2019, having also assessed the Applicant in September 2019 was directly referable to the Relevant Period. Mr Hilber expressed the view that it was unlikely that the Applicant’s upper limb function would have been significantly different on 18 September 2017.
The Applicant contended that allowing for some improvement in the Applicant’s right arm function since the initial injury healed in 2009, his functional impairment had been consistent and that the appropriate rating is 10 points under Table 2 of the Impairment Tables.
The Respondent contended that the Tribunal should place no weight on the evidence of Mr Hilber as he had made it clear that his opinion was based on the observed functional activity and assessments undertaken on 26 September 2019. The Respondent made reference to evidence before the Tribunal in support of its contention that Mr Hilber incorrectly assumed that the condition had remained the same since the injury in 2009, see paragraphs 77 to 79 above. The evidence referred to by the Respondent was both provided by the Applicant’s treating medical practitioners and the Applicant himself in his reports on various occasions to Job Capacity Assessors, the SSCSD and medical practitioners.
The Tribunal considers that while the evidence before it clearly demonstrates that the Applicant’s injury to his right arm causes functional impairment to his upper limb function, what is not clear is what any such functional impairment was at the Relevant Period. It is clear from the reporting and further employment and training engaged in by the Applicant since the 2009 injury that his functional impairment has been described differently at different stages.
The Applicant was able to re-engage in employment in 2013 operating a road saw to cut concrete before he experienced a further workplace injury. After that time the Applicant engaged in retraining, achieving his rigger and dogger tickets, undertook volunteer work and worked for a pest control company and a roller door installation company. While this shows the Applicant’s determination to work if he can, it also indicates (contrary to any evidence providing otherwise) a level of function.
The evidence before the Tribunal also establishes that during the Relevant Period the Applicant took care of his children which included preparing meals for them, driving them to school on occasions and playing with them.
The Tribunal considers that the evidence before it does not support the contention of the Applicant that his upper limb function has remained the same since 2010 and as such the Tribunal places no weight on the opinion provided by Mr Hilber. The opinion provided by Mr Hilber may have relevance for any future claims for DSP the Applicant may wish to make, however for the purposes of the current Relevant Period it has no weight. The Tribunal agrees with the Respondent’s contention that it was made on the Applicant’s presentation in 2019, well outside the Relevant Period and incorrectly assumes that the functional impact had remained unchanged since the initial injury in 2009. Further the Tribunal found Mr Hilber to be an unhelpful witness at Hearing, he appeared intent on maintaining that his opinion had retrospective application to the extent of being unwilling to consider new information put to him.
Having reviewed the evidence before it the Tribunal considers that there is insufficient corroborating evidence or clear evidence from the Applicant himself in relation to the functional impact caused by his upper limb condition during the Relevant Period. Consequently, the Tribunal finds that the Applicant’s upper limb condition can be assigned zero points under Table 2 of the Impairment Table.
Continuing Inability to Work
As the Tribunal, has found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
The Tribunal finds that the Applicant’s spinal and schizophrenia conditions could not be considered permanent for the purposes of applying the Impairment Tables.
The Tribunal finds that the Applicant’s PTSD condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying Table 5 of the Impairment Tables.
The Tribunal finds that the Applicant’s upper limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and could be assigned zero impairment points under Table 2 of the Impairment Tables.
The Tribunal finds that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.
I certify that the preceding one hundred and ten paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
...................[SGD]....................................................
Associate
Dated: 14 January 2021
Date of Hearing: 4 September 2020 Counsel for the Applicant: Mr Philip Nolan Solicitors for the Applicant:
Solicitors for the Respondent:
Legal Aid Queensland
Ms Daphne Jones-Bolla
Sparke Helmore Lawyers
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