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

Lamont and Secretary, Department of Social Services (Social services second review) [2016] AATA 1046 (20 December 2016)

Division

GENERAL DIVISION

File Number

2016/3875

Re

Michael Lamont

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member J Sosso

Date 20 December 2016

Place Brisbane
The Tribunal affirms the decision under review.

........................[Sgd]................................................
Senior Member J Sosso
CATCHWORDS
SOCIAL SECUTIRY – disability support pension – Impairment Tables – where Applicant has several conditions – whether conditions are fully diagnosed, treated and stabilised – whether conditions meet requirements for 20 points under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 4, 26, 94
CASES
Shi v Migration Agents Registration Authority
(2008) 235 CLR 286

Gallacher v Secretary, Department of Social Security [2015] FCA 1123; 68 AAR 1
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J Sosso
20 December 2016
INTRODUCTION

On 21 September 2015 Mr Michael Lamont (the Applicant) lodged a claim for the disability support pension (DSP).
The Applicant listed his disabilities as life threatening cardiomyopathy, a need for hip replacement, hemochromatosis and depression – Exhibit 1 T4 p.63.
The claim was rejected by the Department of Human Services (Centrelink) on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.
This decision was upheld on 12 January 2016 by an authorised review officer (ARO). The Applicant then sought a review of the ARO’s decision by the Social Services and Child Support Division of this Tribunal (AAT1). That too was unsuccessful and the Applicant now seeks a review of that decision.
The hearing was conducted on 22 November 2016. The Applicant was self-represented and gave evidence by affirmation by conference telephone.
The Secretary, Department of Social Security (the Respondent) was represented by Mr Nicholas Warren.
The sole issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim, or within 13 weeks thereafter.
BACKGROUND
The Applicant is a married man aged 56 years. He has three children (Exhibit 1 T25 p.167), but only one is under 18 years old – Exhibit 1 T4 pp. 51 and 59.
The Applicant left school after Grade 10 and completed an apprenticeship as a plumber, and has worked in this trade all of his adult life – Exhibit 1 T32 p.184. He resides in far North Queensland. In his younger years he led an active physical lifestyle, playing rugby league football in Northern New South Wales until he was 30 years of age and running a plumbing business with his wife – Exhibit 1 T18 p.135.
The Applicant was granted the DSP effective from 13 October 2000 until 21 December 2011 when he returned to work – Exhibit 1 T8 p.93. The Tribunal was presented with extensive medical evidence that details the various medical conditions that the Applicant suffered both before and following receiving the DSP in 2000. For example, Dr Adam Winning in a report dated 30 October 2000 diagnosed the Applicant as follows (Exhibit 1 T10 p.108):
“Premature and gross osteoarthritic changes in both hip joints, a little worse on the left, the cause of the premature osteoarthritis is not apparent with multiple potential causes (e.g. idiopathic, repetitive trauma such as over-use in sport, metabolic, dis-orders, epiphyseal dysplasia, past Perthes or even haemophilia).”
Dr Watterson provided the Applicant with a Medical Certificate dated 9 December 2000 in which he diagnosed the Applicant with the following symptoms (Exhibit 1 T14 p.122):
“1. Severe degenerative arthritis – hips/knees/elbows/spine.
2. Severe anxiety/depression.”
The following day Dr Watterson produced a hand written medical certificate which very clearly outlines the Applicant’s then state of health. (Exhibit 1 T15 pp. 123-124):
“I have known Mr Michael Lamont for 13 years. He has multiple health problems which obviously necessitate him being on an invalid pension.
Mr Lamont has severe degenerative osteoarthritis of his hips. In 1992, he was seen by Dr Ray Randle (Orthopaedic Surgeon) who felt that this condition was severe. It was supported by X-rays. Mr Lamont will require remedial hip replacements.
Mr Lamont also has widespread degenerative osteoarthritis of his knees, spine + elbows.
Mr Lamont has a long history of anxiety/depression, which considering.his disability, isn’t surprising…”
The material before the Tribunal discloses that the Applicant suffered a number of football injuries including rib, left jaw and skull fractures, dislocations of the right shoulder, left tinnitus and headaches – Exhibit 1 T23 p.155, T18 p.135. However, his main medical issue was severe hip osteoarthritis – Exhibit 1 T18 p.135, T19 p.139 and T23 p.155.
The Applicant was examined by Dr Ross Boulton, orthopaedic surgeon, who provided the following medical report on 30 June 2001 – Exhibit 1 T19 p.139:
“Thanks for asking me to see Michael Lamont who is in a difficult situation. At the age of 41 he has severe osteoarthritis of both hips. They are very stiff and very painful. It is unreasonable to expect this man to put up with this for another 15 years before offering him hip replacement. I think the reasonable thing to do would be a) give him bilateral cementless hip arthroplasties, b) demand that he stop smoking so that they will have less problems with osseointegration and c) insist that he retire as a plumber. He would be able to do other work that was not so demanding.”
In a Job Capacity Assessment Report prepared on 4 September 2007, the Assessor, a registered psychologist, stated that the Applicant presented with two fully diagnosed, treated and stabilised medical conditions (Exhibit 1 T24 p.162). Those medical conditions were osteoarthritis and circulatory system – other – p.158. The latter condition was hemochromatosis, which appears to have been the underlying cause of the deterioration of the Applicant’s hip joints. Osteoarthritis was, then, a secondary complication of hemochromatosis. Hemochromatosis is genetic and permanent in nature – Exhibit 1 T24 pp. 158, 164.
The Assessor recommended an impairment rating of 30 for the Applicant’s osteoarthritis and hemochromatosis. The supporting reasons for this assessment were as follows (Exhibit 1 T24 p.159):
“Customer has Osteoarthritis as a secondary complication of Hemochromatosis. He has recently undergone several surgeries to replace both hips and has experienced complications with the right hip surgery which is slowing his recovery. He is currently unable to carry out ADL due to limits physical limitations such as bending and requires assistance to dress himself, wash his legs and feet and finds difficulty sitting or rising from sets or regular toilets he walks with a limp and fatigues very quickly require frequent breaks when walking any distance preventing him performing any core work tasks. He is expected to improve a little but not in the next 2 years. He has been awarded 10 points on the impairment tables.
Customer has received a late diagnosis of primary Hemochromatosis by Dr Farmer – Redcliff Hospital with MIR and CAT scans. This is a genetic disorder which is permanent in nature and causes the customer widespread joint pain, fatigue, lack of energy and weakness. Customer’s late diagnosis and treatment has meant that his prognosis is poor with Osteoarthritis widespread in his joints. He is receiving optimum treatment with ongoing review by Neurologist and haematologist Dr Berger. He is having excess iron removed from his body with controlled bleeding on an ongoing basis. However, treatment has only improved his condition slightly. His symptoms leave him with decreased ability to carry out many everyday activities. Symptoms prevent or lead to avoidance of daily tasks and simple tasks will aggravate symptoms of fatigue. Significant interference with ability to perform or persist with work tasks in open employment. Customer awarded 20 points of the impairment tables.” (errors in the original).
Following the diagnosis of hemochromatosis and its treatment, the Applicant’s condition improved to such an extent that he was able to return to work and ceased receiving the DSP – Exhibit 1 T32 p.184. Despite the previous medical reports recommending against working as a plumber, the Applicant again returned to that trade.
On 23 December 2014 Dr Bryce Squarci issued a medical certificate for the Applicant in which he was diagnosed with cardiomyopathy – Exhibit 1 T31 p.180. The date of onset was said to be 1 June 2014. An Employment Services Assessment Report was prepared by a registered psychologist following a face to face consultation. The report, dated 8 April 2015, notes that the Applicant suffers from two medical conditions: cardiomyopathy and lower limb deficiencies (hip replacement complications) – Exhibit 1 T32 pp.182-183.
The Assessor was of the view that the Applicant’s diagnosis was relatively recent and that he was then still trialling medications and ascertaining how his condition responded to treatment. Further, the Applicant was participating in a cardiac rehabilitation program where he was learning skills to manage his conditions. The Assessor was of the opinion that the Applicant would be best served by focussing on developing skills to manage his condition – Exhibit 1 T32 p.183.
On 7 September 2015 a short report was prepared by Dr Samuel Hillier, Imaging Cardiologist, in which he stated (Exhibit 1 T34 p.187):
“Mr Lamont has a dilated cardiomyopathy. This condition should be considered permanent, is potentially life-threatening, and both the condition and the treatment will impact negatively on his ability to work in a manual occupation for the indefinite period. He will require ongoing cardiology surveillance, to ensure the condition does not deteriorate further."
On 12 October 2015 Dr Squarci provided a more detailed medical report on the Applicant. Outlined below is the key diagnosis (Exhibit 1 T36 p.189):
“Mr Michael Lamont, age 55 yrs, suffers from cardiomyopathy. He has a permanently weakened heart which will only deteriorate from this point in time. He is on maximal medical therapy at this point in time. Further therapies are very limited and are reserved for end stage disease only. He will not be able to return to the heavy manual work he was performing in the past. At best he can perform some light duties within the constraints of his condition. His prognosis is poor but unpredictable.
As well as his heart issues, he has bilateral artificial hips which need revision but his heart condition makes the surgery high risk.”
Dr Squarci outlined three medical conditions the Applicant was suffering from and which were recently diagnosed: hypercholesterolaemia and GORD (diagnosed 24 October 2014) and cardiomyopathy (diagnosed 31 October 2014).
Following the lodgement of the DSP application a Job Capacity Assessment Report was prepared. The Assessor conducted a face to face assessment. The Assessor was a registered psychologist and the contributing assessor was a registered occupational therapist. The assessment was undertaken on 6 November 2015 and the report issued on 12 November 2015 – Exhibit 1 T37 p.191.
The Assessor noted that the Applicant had four diagnosed medical conditions: cardiomyopathy, lower limb deficiencies, hypercholesterolaemia and gastro oesophageal reflux disorder.
The Assessor recommended a rating of 10 for cardiomyopathy (circulatory system) and 0 points for each of the remaining conditions – Exhibit 1 T37 pp.193-194.
The Assessor also referred to a telephone conversation with Dr Squarci of 12 November 2015 where it is stated that Dr Squarci advised that the Applicant would be suitable for supervisory or sedentary roles and that he would be capable of completing a continuous three hour shift in a sedentary role – p.194. Further, during the same conversation, Dr Squarci advised that the Applicant would have difficulty with squatting, kneeling or climbing stairs, but could stand for 10 minutes and did not need a walking aid – p.194.
On 13 November the Applicant’s DSP claim was rejected. Subsequently, that decision was the subject of review by the ARO.
The ARO first found that the Applicant’s conditions of cardiomyopathy, bilateral artificial hips, hypercholesterolaemia and GORD were permanent and could be rated under the Impairment Tables – Exhibit 1 T6 p 83.
The ARO then agreed that the assigned rating of 10 points was appropriate for cardiomyopathy – p.84. The ARO agreed that the other conditions could not be assigned any points under the Impairment Table – pp.84-85.
The same result, with one variation was reached by the AAT1. The difference was that Member Green found (Exhibit 1 T2 p.6 para [20]): “The evidence is that Mr Lamont has some difficulty with walking and climbing stairs. This is a mild functional impairment which rates 5 points under Table 3 – Lower Limb Function.”
Prior to the AAT1 decision, Dr Squarci referred the Applicant to Penelope Walk, Clinical Psychologist who prepared a report dated 30 March 2016 – Exhibit 1 T40 p.202. Her diagnosis was that the Applicant suffered from an unspecified neurocognitive disorder with behavioural disturbance. Further she also diagnosed major depressive disorder, severe, recurrent, without psychotic features. She concluded as follows (p.206):
“I believe Mr Lamont requires consideration for Disability Support both on grounds of his physical and psychological dysfunction. I understand Mr Lamont has supplied his medical documentation for consideration. His psychological function is stable and despite two interventions, is not improving in the face of a deteriorating and uncertain health future. It is unlikely to improve. He will require supportive counselling to come to terms with his deteriorating health and to teach him to learn to live well with terminal illness. While Mr Lamont has always been a hard worker, his severely compromised lung function and its variability of function negatively impacts his psychological capacity to implement usual work strategies and therefore effectively denies him a functional working life.”
Ms Walk stated that the Applicant’s severe depression was stable and resistant to treatment using cognitive-behavioural strategies. Further she was of the view that his depression would improve significantly within a two year period while his physical health continues to deteriorate.
In reaching its decision, AAT1 had before it, and paid due regard to, the report of Ms Walk.
Subsequent to the AAT1 hearing Ms Walk prepared a further report which is dated 18 October 2016 – Exhibit 2. Although shorter than her earlier report it is a more helpful document in that it is written in a more objective and clinical manner. Ms Walk appropriately notes that her diagnosis is provisional in the absence of specialist neuropsychological assessment. That said, her report is to the same effect of her earlier assessment. It is helpful to set out the thrust of her assessment:
“In my clinical opinion his severe depression is stable and resistant to treatment using cognitive-behavioural strategies or medication. It is unlikely that it will improve significantly within a two year period while his physical health continues to unpredictably deteriorate as is his prognosis.
Mr Lamont and I have agreed that continuing psychological treatment does not effectively enhance or improve his condition. It is taxing for him to attend and his treatment process did not indicate any significant improvement. In fact his anxiety is escalating as his physical condition deteriorates.
I have included my previous report, dated 30^th March 2016, for further information as required. In my clinical opinion, this gentleman’s mental health issues under Table 5 place him at 30 points for extreme functional impact as a consequence of his extremely severe depression and anxiety associated with his increasing physical deterioration. His extremely severe depression is stable and resistant to treatment using cognitive-behavioural strategies or medication. It is unlikely it will improve significantly within a two year period while his physical health continues to unpredictably deteriorate as is his medical prognosis.”
LEGISLATION
To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairments is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) which is made pursuant to section 26 of the Act and came into force on 1 January 2012.
Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clause 5(2) and (3). Importantly, Clause 5(2) explains that the that the Tables are function based rather than diagnosis based (Cl 5(2)(b) and describe functional activities, abilities, symptoms and limitations (Cl 5(2)(c). Consequently the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions (Cl.5(2)(d)).
The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).
An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).
To be a permanent condition it must be:
(a)fully diagnosed by a medical practitioner;
(b)fully treated;
(c)fully stabilised; and
more likely than not, to persist for more than two years (Cl6(4)).
In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).
A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment was undertaken or there is medical or compelling reason for not undertaking such treatment – Cl 6(6).
A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.
This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
CONSIDERATION

The task of the Tribunal is to assess the Applicant’s claim for the DSP on his medical condition at the date of his claim or within 13 weeks thereafter. In this matter, therefore, the relevant period is 21 September 2015 to 20 December 2015.
This does not mean, however, that the Tribunal is restricted to medical reports and other evidence that was produced after the expiration of the relevant period. Moreover, as the Tribunal’s mandate is to stand in the shoes of the original decision-maker and consider the matter afresh, there is no limitation on the Tribunal being presented with, and considering, material not produced to the original decision-maker or material that was produced subsequent to the decision under review – Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [43] per Kirby J and [99] per Hayne and Heydon JJ.
The Tribunal is at liberty to admit into evidence and to consider medical reports prepared for persons claiming the DSP after the expiration of the relevant period. However, those reports must relate to the Applicants’ state of health during the relevant period – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.
Does the Applicant suffer a physical, intellectual or psychiatric impairment?
The Respondent accepts that the Applicant suffers from impairments and therefore satisfies s 94(1)(a) of the Act – Secretary’s Statement of Facts & Contentions (SSFC) para 40. Having regard to the evidence before the Tribunal, I agree that concession was properly made.
Do the Applicant’s impairments attract 20 points or more under the Impairment Tables?
1. Osteoarthritis – lower limbs
The Respondent, appropriately, concedes that the Applicant’s osteoarthritis has been fully diagnosed, treated and stabilised during the relevant period – SSFC para 41.
The Respondent, contends (SSFC para 42) that the Applicant’s lower limb impairment rates 0 points under Table 3 of the Impairment Tables for the following reasons:
(a)The lack of corroborating medical evidence concerning the length of the Applicant’s standing capacity;
(b)The lack of corroborating medical evidence that the Applicant requires the assistance of a walking stick;
(c)The Applicant’s admission that he is able to walk for 10 minutes without rest; and
(d)Dr Squarci’s evidence that although the Applicant is unable to squat or kneel, he is “otherwise OK with lower limbs” - Exhibit 1 T38 p.199.
The Job Capacity Assessment Report of 12 November 2015 recommended a rating of 0. The Assessor was of the opinion that there was no functional impact on activities requiring the use of the lower limbs. In forming this opinion the Assessor formed the view, on the basis of the material, that the Applicant could (Exhibit 1 T37 p.194):
(a)walk without difficulty on a variety of different terrains and at varying speeds;
(b)walk without difficulty around the home and the community;
(c)kneel or squat and risk back to a standing position without difficulty;
(d)stand unaided for at least 10 minutes; and
(e)use stairs without difficulty.
As noted above, Dr Squarci in the “Additional Medical Evidence for Disability Support Pension Record” form dated 12 November 2015 opined that the Applicant could not squat or kneel but was otherwise OK with lower limbs.
I have also considered the report of Paula Upham, Senior Occupational Therapist at Innisfail Hospital. Ms Upham saw the Applicant on three occasions: 22 December 2015, 5 January 2016 and 2 February 2016. She disputed that there was no functional impact on activities requiring the use of lower limbs and stated as follows (Exhibit1 T42 p. 208):
“Michael has had 2 Total Hip Replacements in 2005 and 2006 from hemochromatosis related osteoarthritis. He still suffers pain and his mobility is impacted.
His hip replacements are not optimal (1 being temporary) however he is not a candidate for further surgery.
Currently Michael has reduced hip range of movement and I unable (sic) to touch his toes, and do up shoe laces.
He is unable to safely climb ladders and is unable to crawl into small spaces.
Although he has not had any falls his balance is unsteady on even ground.
His temporary hip procedure has frequent flare ups causing intense pain, at worse he can become bed or chair bound.
Extreme pain requires high levels of Oxycontin medication which impacts on his ability to drive vehicles and all manner of machinery.
Medication also makes him very drowsy.”
Table 3 (Lower Limb Function) of the Impairment Tables provides that nil points are to be awarded where a person can walk without difficulty around the home, kneel or squat and rise back to a standing position without difficulty or, inter alia, use stairs without difficulty.
While the Job Assessment Report would support a nil rating, the comments of both Dr Squarci and Ms Upham do not support this conclusion. Dr Squarci noted that the Applicant could not squat or kneel and Ms Upham noted that the Applicant was unsteady on his feet, unable to bend over and touch his toes or tie up his shoes and could not climb ladders or crawl into small spaces.
A mild functional impact seems more apposite. The Applicant clearly, during the relevant period, had difficulty climbing stairs or walking to local facilities. Further, he was diagnosed as being unsteady on his feet on even ground. I infer that he would be unlikely, having regard to the report of Ms Upham, to be able to stand for more than 10 minutes without the risk of injury.
As with the AAT1, I find that the Applicant had, at the relevant period, a mild functional impairment of the lower limbs resulting in a rating of 5 points.
2. Cardiomyopathy
The Respondent, appropriately, concedes that the Applicant’s heart condition was fully diagnosed, treated and stabilised during the relevant period – SSFC para 44.
The Respondent contends that the Applicant’s heart impairment properly rates 10 points under Table 1 of the Impairment Tables – functions requiring physical exertion and stamina. To be awarded 10 points under Table 1, a person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)     Is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get transport to local shops or community facilities; or
(ii)    has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)is able to:
(i)     (use public transport and walk (or mobilise a wheelchair) around a shopping centre or supermarket; and
(ii)    perform work related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion}.”
Ms Upham also supported a rating of 10 points – Exhibit 1 T42 p.208. She stated that the Applicant had shortness of breath and poor endurance. In particular, she reported, he was short of breath when getting dressed, especially when putting on shoes and socks and sometimes after walking more than 10 metres. Each day and every night the Applicant gets body cramps. Further, as the Applicant is prescribed fluid tablets for his heart and lungs, this also impacts on his shortness of breath.
Dr Squarci confirmed that the Applicant becomes short of breath and fatigued when undertaking physical tasks – Exhibit 1 T37 p.193.
The Assessor who prepared the Job Capacity Assessment Report also recommended a rating 10 – Exhibit 1 T37 p.193.
A person is be awarded 0 points under Table 1 if they can undertake exercise appropriate for their age and have no difficulty performing physical tasks around their home and community. Clearly, on the evidence before the Tribunal, this is not the case with the Applicant. His cardiac condition had an appreciable impact resulting in functional impairment when performing activities requiring physical exertion and stamina.
Five points is awarded when the person experiences occasional symptoms, such as mild shortness of breath, fatigue, cardiac pain, when performing physically demanding activities. Due to these symptoms the person has occasional difficulty walking to local facilities without stopping to rest or performing physically active tasks. The person also would be able to perform most work related tasks other than heavy manual labour e.g. digging, bricklaying or laying pavers.
In order to be awarded 20 points for a severe functional impairment, a person must be unable to walk around a shopping centre or supermarket without assistance, walk from the carpark to the shopping centre or supermarket without assistance, use public transport without assistance or perform light day to day household activities.
The evidence before the Tribunal highlights that the Applicant has significant impairments, and accordingly a rating of zero is inappropriate. The nature of the Applicant’s condition is more serious than mild;,he has poor endurance, shortness of breath after walking 10 metres and clearly would have difficulty performing almost any sustained tasks around the home or engaging in physical labour.
Conversely I am unable to award the Applicant 20 points as his condition could not be characterised as severe functional impairment. The evidence suggests that he is able to walk unaided into and around a shopping centre and use public transport without assistance. The 2007 Job Capacity Assessment Report noted that the Applicant was able to use public transport without substantial assistance – Exhibit 1 T24 p.159.
Dr Squarci stated in his 12 January 2015 report that while the Applicant could not return to heavy manual work he could perform light duties within the constraints of his condition – Exhibit1 T36 p.189. Moreover Dr Squarci advised Centrelink on 12 November 2015 that the Applicant would be suitable for sedentary roles and would be capable of completing a continuous three hour shift in a sedentary role – Exhibit 1 T37 p.194.
The Applicant gave evidence at the AAT1 hearing and testified that he cooks the evening meal for the family and tries to wash up, but that is all he does in the house – Exhibit 1 T2 p.6.
The evidence before the Tribunal strongly supports a finding that the Applicant’s condition has a moderate functional impact on activities requiring physical exertion or stamina and should be awarded a rating of 10 points.
3. Depression
The Respondent contends that at the relevant period the Applicant’s depression condition was not permanent and could not be assigned an impairment rating – SSFC para 47.
The Respondent drew the Tribunal’s attention to Table 5 of the Impairment Tables, and, in particular, to the Introduction where certain mandatory requirements are set out.
The diagnosis of the condition must be made by an appropriately qualified medical practitioner, including a psychiatrist with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.
Further, self-reporting of symptoms is not sufficient and there must be corroborating evidence of the person’s impairment. Corroboration can be by various means, including a report from the person’s treating doctor.
The Applicant has been treated for anxiety and depression over a long period of time. Records from the Innisfail Hospital disclose that on 14 October 2014 he was seen by Mr Peter Hanzak, a psychologist. In his report, Mr Hanzak said (Exhibit 1 T43 p.211):
“Presenting: strong anxiety about the future with regards to his physical symptoms of cardiac problems (fear of being sick, not being able to provide, to pay mortgage and his debt…)
He also presented with symptoms of depression: he said he stopped working and stopped forming his pleasurable activities…He presented with hopelessness and helplessness, agitation, often angry as a result of little things, tiredness, lack of motivation, sleep disturbances...”
The records disclosed that the Applicant was seen by Mr Hanzak on 28 and 31 October, 10 and 11 November and 8 December 2014 and 15 January and 29 April 2015 – Exhibit 1 T43 pp. 212-218.
The Applicant testified at the AAT1 hearing that he was no longer seeing a psychologist but would be asking his doctor for a referral under a health care plan. The first time there is evidence of the Applicant being treated by a clinical psychologist is 29 March 2016.
Despite this the medical evidence discloses that the Applicant has a long history of anxiety and depression. For example, Dr Watterson provided a health certificate for the Applicant dated 9 December 2000 where he diagnosed him as having “severe anxiety/depression” - Exhibit T14 p.122. Likewise in his fuller medical report of 10 December 2000, Dr Watterson said: “Mr Lamont has a long history of anxiety/depression, which, considering his disability, isn’t surprising Dr S Moore saw him for such in 1995 (a local Physician)” – Exhibit 1 T15 p.124. Three months later Dr CLJ Herd, a Rheumatologist provided a report in which the following diagnosis was made: “Severe emotional distress caused by disability” - Exhibit 1 T16 p.128.
A similar diagnosis was provided by Paula Upham who, in her report of 25 January 2016 said: “Michael suffers Depression and Anxiety (he has had medication in the past but I understand the medication interacts with his heart medication)” - Exhibit 1 T42 p. 209.
When the Applicant was seen by a Clinical Psychologist, Penelope Walk, in March 2016, she stated that the Applicant’s medical records describe depression since his head injury in 1989. He had been treated with various medications, mostly without success. Ms Walk was of the view that the Applicant’s depression had stabilised, was resistant to treatment using cognitive-behavioural strategies and was unlikely to improve within a two year period –Exhibit 1 T40 p. 203.
The Respondent contends that the Applicant’s had been fully diagnosed within the relevant period – SSFC para 49. This concession is properly made. The Tribunal has before it evidence that the Applicant has been treated for depression since at least 1995 by various doctors. However, the Respondent does not concede that the Applicant’s mental health condition was fully treated and fully stabilised during the relevant period.
The Respondent contends that the Applicant’s mental health condition has been the subject of therapeutic intervention on two occasions. Further, the Applicant received psychological counselling in late 2014 and early 2015 and his condition improved with treatment – SSFC para 49.
The evidence suggests that the Applicant has suffered long periods of depression which has fluctuated over time. Indicative is the treatment regime delivered by Innisfail Hospital between October 2014 and May 2015. The Applicant received over that period seven sessions with a psychologist, six with a community nurse and two with a physiotherapist. The earlier reports of the psychologists disclose a patient with depression and anxiety and related problems, but the reports of 15 January 2015 and 29 April 2015 indicate “improving insight and mood” – Exhibit 1 T43 p.218.
At AAT1, Member Green considered the above material, including the report of Ms Walk, and concluded that although the Applicant did not see Ms Walk until 6 months after his claim was made, her diagnosis confirms a long standing depressive condition – Exhibit 1 T2 p.7. The Member then went on to find that the Applicant was, during the relevant period, and up until that time, experiencing an exacerbation of his depressive condition, but he had not been treated for that exacerbation. Member Green said – Exhibit 1 T2 p.7:
“He has yet to see a psychologist for treatment and, although there may be limitations on drug therapy it is not clear that possibility has been fully explored. Ms Walk refers to drug interactions limiting some anti-depressant medication, not all.”
The Respondent contends (SSFC para 50) that this analysis is correct and until the Applicant’s fluctuating mental health condition receives a sustained course of psychological intervention, coupled with appropriate pharmaceutical treatment, the condition cannot be considered to be fully treated and stabilised.
I have reached the same conclusion. There is no doubt that the Applicant presents as a person who suffers from depression, anxiety and stress. Ms Walk assessed the Applicant as having depression at the extremely severe range, anxiety at the severe range and stress at the extremely severe range – Exhibit 1 T40 p.203. She also diagnosed the Applicant has suffering from an unspecified neurocognitive disorder with behavioural disturbance, a major depressive disorder, extremely severe, recurrent but without psychotic features.
This report was prepared after a two hour clinical interview and perusal of background information – Exhibit 1 T40 p. 202. It was supplemented by a further report.
Although these reports were prepared after the relevant period, they are of great assistance to the Tribunal as they shed light on the Applicant’s depressive condition leading up to, and during the relevant period. The reports of Ms Walk are unexceptional in the sense that they diagnose and paint a picture of a man undergoing an extremely severe mental health condition.
Yet the reports also highlight one inescapable fact: during the relevant period his mental health condition had not been fully treated and stabilised. Indeed, the report of Ms Walk highlights that there were still many questions to be answered and various interventions that need to be explored. I accept that the Applicant’s depression had been fully diagnosed. A perusal of the medical reports over the past sixteen years supports that proposition. But a reading of those reports highlights a condition that fluctuated, that was treated in various ways and which stabilised and then worsened because of a range of factors; physical, social and psychological.
The fact that the Applicant only had the benefit of seeing a clinical psychologist in 2016, and then having some focused professional intervention, strongly suggests that it is untenable to contend that his depressive condition was in September 2015 fully treated and was fully stabilised.
Accordingly, no impairment points can be assigned under Table 5.
4. Other Conditions
The Respondent drew to the attention of the Tribunal three other conditions that are dealt with in the various medical reports.
The first is found in the report of Ms Upton. She diagnosed the Applicant as having marked Dupytrens contractures in the palms of both of his hands. Ms Upton stated that in her professional opinion the Applicant will need surgery on his hands in the future – Exhibit 1 T42 p. 209.
I agree with the contention of the Respondent (SSFC para 54) that although this condition has been fully diagnosed, it patently had not been fully treated and stabilised at the relevant period.
The second condition was the Applicant’s brain injury which occurred in 1989. This was an injury resulting from the Applicant playing rugby league where he suffered a fractured skull and jaw. In 2007 the Applicant was treated by Dr Christopher Staples, consultant neurologist. After analysing his condition, Dr Staples concluded (Exhibit 1 T23 p.155): “Apart from his deafness, there is nothing amiss neurologically, including on fundoscopy.”
There is no neurological evidence before the Tribunal apart from the 2007 report. Accordingly, the Tribunal can only proceed on the basis that, in 2007, there was nothing amiss neurologically, and no evidence of a change since that time.
The third condition was hearing loss.
This condition was reported by Ms Upham. In her report she stated that the Applicant reported poor hearing resulting from his injury in 1989. She further noted that the Applicant had a hearing assessment and had been issued with bilateral hearing aids and was waiting for an appointment with an ENT specialist – Exhibit 1 T42 p.209.
The Respondent contends that there is no corroborating medical evidence from an audiologist or ENT specialist, and, accordingly, this condition has not been fully diagnosed for the purposes of Table 11 of the Impairment Tables – SSFC para 56.

This contention is soundly based and the Tribunal finds that this condition has not been fully diagnosed.
Overall Impairment Rating
The Tribunal finds that the Applicant’s overall impairment rating at the relevant period was 15 points and on that basis does not satisfy s 94(1)(b) of the Act.
Does the Applicant have a continuing inability to work
As the Applicant did not have 20 points or more under the impairment Tables, it is not necessary for me to address this issue.
Nonetheless, even if the Applicant had been awarded extra points under any of the previous headings, he still would not have attracted 20 points under a single table. The Applicant would not have been considered to have a severe impairment and would have been required to actively participate in a Program of Support (POS) for a total of 18 months in the 36 months preceding the date of the claim. These requirements are outlined at length in the Secretary’s Statement of Facts & Contentions at paras 58-76, in particular the more stringent requirements that apply to DSP claims made on or after 3 January 2015.
There is no evidence before the Tribunal that the Applicant participated in a POS for the requisite time, nor does the evidence confirm that his medical condition prevented him from doing so. The available evidence suggests that the Applicant was only engaged in a POS for 4 months (SSFC para 70), and both the Job Capacity Assessor and Dr Squarci stated that in their respective opinions the Applicant was capable of working for limited periods, albeit not physical work (SSFC para 74).
CONCLUSION
I have come to the conclusion that the Applicant does not satisfy s 94(1)(b) and (c) of the Act, and the decision to reject his claim for the DSP was correct.
The Applicant informed the Tribunal during the hearing that he had made another claim for the DSP and Mr Warren confirmed that. It also became clear during the hearing that the more recent DSP claim is on much firmer ground than the claim currently before the Tribunal.
The evidence before the Tribunal is that the Applicant has been a hardworking and productive member of society throughout his adult life. He has, unfortunately, been in bad health for some time. A key point that shines through the material before the Tribunal is that the Applicant has taken much pride in his work as a plumber, and despite the numerous hurdles that his bad health presented, he was always keen to go back to work and care for his family.
The Tribunal is constrained by the strict terms of the legislation and the state of the evidence that has been submitted. The law regarding the granting of the DSP is very clear and the discretion granted to decision-makers is very limited. It is obvious that the Parliament and the Executive have designed a regime that is simple to understand and capable of relatively seamless administration. That is not to say that its administration and execution inevitably result in optimal decisions in every instance. However, it would be fair to observe, that its architecture overwhelmingly is designed to reach a fair and just result. In this instance, the result is not optimal, and the application of the law leads to a conclusion which could be perceived as being harsh.
As previously indicated, the Applicant has made a new claim, and with the additional medical evidence and the progress of his medical condition, it would appear that a different result may eventuate.
DECISION
The decision under review is affirmed.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso
........................[Sgd]...............................................
Associate
Dated 20 December 2016

Date of hearing 22 November 2016

Applicant In person

Solicitors for the Respondent Department of Human Services

[2016] AATA 1046

20 December 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Appeal

Division	GENERAL DIVISION
File Number	2016/3875
Re	Michael Lamont
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member J Sosso
Date	20 December 2016
Place	Brisbane

Date of hearing	22 November 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services