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

Lemon and Secretary, Department of Social Services (Social services second review) [2019] AATA 4988 (9 August 2019)
Division:GENERAL DIVISION
File Number:2018/2586
Re:Darren LEMON
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Thompson, Member G Hallwood
Date:9 August 2019
Place:Adelaide

The decision under review is affirmed.
................[sgnd]................. …………...[sgnd]..................
Member I Thompson Member G Hallwood
Catchwords
SOCIAL SECURITY – Disability Support Pension – Permanent impairment – Sufficient points on Impairment Tables – Continuing inability to work – Decision under review is affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) AATA 922
Crocker v Secretary, Department of Employment and Workplace Relations (2007) FCA 1635
Fanning and Secretary, Department of Social Security (2014) AATA 447
Gallacher and Secretary, Department of Social Security (2015) FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) FCA 404
Re Crossland and Secretary, Department of Family and Community Services (2004) AATA 864
Redmond and Secretary, Department of Employment and Workplace Relations (2007) AATA 1066
Secretary Department of Social Security v Pusnjak (1999) FCA 994
Secondary Materials
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
Member G Hallwood
9 August 2019

This application appeals a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 20 April 2018. That decision affirmed an earlier decision of Respondent, of 23 June 2017, to reject a claim for Disability Support Pension (DSP) lodged by Mr Lemon on 15 May 2017.
THE ISSUES
The Tribunal is asked to decide whether Mr Lemon qualified for a DSP during the qualification period between 15 May 2017 and 14 August 2017. The issues to be determined is whether Mr Lemon in the qualification period, had:
(a)A physical, intellectual or psychiatric impairment?
(b)If so, was the impairment permanent?
(c)If so, does the impairment rate at least 20 points on the Impairment Tables?
(d)If so, did Mr Lemon have a continuing inability to work?
BACKGROUND
The facts outlined below are based on documentary evidence, the oral testimony of Mr Lemon at the hearing conducted by this Tribunal, and a number of witnesses appearing by telephone on behalf of Mr Lemon and including medical practitioners. Mr Lemon, who was self-represented, and his witnesses presented their evidence credibly, openly and it seems to the best of their recollection and respective expertise.
Mr Lemon gave evidence that he was educated at school to year 9 level. While he started year 10 he did not complete that year.
Mr Lemon’s working life has been varied with his longest period of employment being 13 years at the Queen Elizabeth Hospital until 1997.
Now, 61 years of age, Mr Lemon has suffered several traumatic personal injuries from sporting, work, and motor vehicle incidents leaving him with residual physical and psychiatric disabilities and generating a range of limitations to his daily functioning and work capacity.
Mr Lemon moved to a regional community located about 100 kilometres north of Adelaide where he has lived since November 2017.
THE LEGISLATION
The relevant law is contained in the Social Security Act 1991 (the Act) and Social Security (Administration) Act 1999 (the Administration Act). Also of relevance are the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) which contains the Impairment Tables, and Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Participation Determination).
Criteria for medical qualification for DSP are set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
To medically qualify for DSP a person must have:
·A physical, intellectual or psychiatric impairment with a rating of 20 points or more under the Impairment Tables; and
·A continuing inability to work which in some circumstances includes participation in a program of support.
Section 3 of the Impairment Determination defines impairment as "a loss of functional capacity affecting a person's ability to work that results from the person's condition". Impairments can be physical, intellectual or psychiatric.
CONSIDERATION
The Tribunal has been provided with a large number of medical reports covering a wide variety of conditions and dating back to the mid-1990s. Many of the medical reports are grouped around a particular trauma and injury that related to a claim for compensation. While some of the language of compensation claim reports is similar to the language of the Act, the definitions can differ considerably. All reports provided have been considered, only reports relied upon for context and decision making in this hearing are referred to below.
Does Mr Lemon have a physical, intellectual or psychiatric impairment?
Mr Lemon stated in evidence that his longest stretch of employment was 13 years at the Queen Elizabeth Hospital (QEH) where he injured his lower back in 1995 and his employment was terminated in 1997.
Since finishing work at the QEH, Mr Lemon recalled working as a security guard for about 12 months but was forced to leave because of back spasms and the effect of trauma induced gout in his feet and ankles. [1] His work as a security guard ended in February 2005.
[1] T14, p261.
When asked about other work Mr Lemon stated that over about a five year period he worked in traffic control. He said that Centrelink bullied him into accepting and continuing that work across a number of employers. Mr Lemon stated that the traffic control work was meant to be up to four hours a day but in reality it had been 10 to12 hour days and as a consequence he had spent a lot of time off work because his back and feet could not cope. The traffic control work ended in 2014 and he has not worked since.
Mr Lemon reported that he has participated in job seeking with several job providers since 2014 and none have been able to help him obtain work. He stated that he participated in a program of support including a civil construction training program arranged by Job Prospects that ended when he had a back spasm.
Since an incident at work in May 2014 Mr Lemon has also been diagnosed with psychiatric conditions that have impaired his ability to work.[2]
[2] T14, p232; T14, p386; Exhibit 2, L. Sassi (psychologist), medical report regarding Darren Lemon, 4 July 2018, p3.
It is not in dispute that Mr Lemon has medically described conditions that affect his upper limb function, his lower limb function, his spinal function and his mental health function. And indeed the Respondent accepted that the Applicant satisfied s 94(1)(a) of the Act.
On these bases and on Mr Lemon’s evidence and the medical reports received in evidence it is clear that Mr Lemon has a number of physical and psychiatric conditions that create "a loss of functional capacity affecting a person's ability to work that results from the person's condition".[3]
[3] Impairment Determination s 3.
For these reasons the Tribunal finds that Mr Lemon had physical and psychiatric impairments required to satisfy s94(1)(a) of the Act during the qualification period.
If so, is the impairment permanent?
In order to qualify the applicant must satisfy the requirements of s94 of the Act at the date of the claim for DSP or within 13 weeks of lodging the claim.[4] As noted, in this case the qualification period is between 15 May 2017 and 14 August 2017.
[4] See clause 4 of Schedule 2 of the Administration Act.
The Impairment Determination says that for a condition to be assigned an impairment rating under the Impairment Tables the condition must be considered ‘permanent’.[5] A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.[6]
[5] Ibid s6(3) and s6(4).
[6] Impairment Determination s6(5), s6(6) and s6(7).
In determining whether a condition has been fully diagnosed and treated, the Tribunal must consider whether there is corroborating evidence of the condition, evidence of any treatment or rehabilitation in respect of the condition, and whether any treatment is continuing or planned for the next two years.[7]
[7] Impairment Determination s 6(5).
A condition can be considered ‘fully stabilised’ via two alternative pathways. First, the applicant has undertaken reasonable treatment, and further reasonable treatment is unlikely to result in a significant functional improvement enabling the applicant to work within the next two years. And second, where an applicant has not undertaken reasonable treatment, but a significant functional improvement is not expected even if that treatment were undertaken.[8]
[8] Impairment Determination s 6(5).
Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if the impairment that results from the condition is more likely than not, in the light of available evidence, to persist for more than two years.[9]
[9] Impairment Determination s 6(4).
The Tribunal has considered the diagnosis, treatment and stability of Mr Lemon’s impairments as they relate to the Impairment Tables.
Upper Limb Function
Conditions affecting Mr Lemon’s upper limb function include gout in elbows and wrists, degenerative changes in right wrist, regional ulnocarpal synovitis in the right wrist, and bilateral shoulder bursitis.
A “Whole Person Assessment” by Dr Williams dated 13 January 2004 describes an injury to Mr Lemon’s dominant right upper limb from around 2002.[10] An MRI disclosed a tear of the biceps muscle that he had been advised would heal. The report also indicates Mr Lemon reported forearm tendinitis.
[10] Ex 2, Dr Williams, Whole Person Assessment, 13 January 2004.
Radiology reports of 20 September 2010[11] and 28 September 2010[12] support a diagnosis of left shoulder bursitis with treatment including analgesics and Celestone / Naropin injections.
[11] T14, p216.
[12] T14, p217.
A left elbow ultrasound report by Dr Roache dated 27 October 2011 indicate a resolving olecranon bursitis and describe an injection into the bursal space of a combination of local anaesthetic and steroid. The report also noted what appeared to be an elongated olecranon spur.[13]
[13] T14, p219.
A left shoulder ultrasound report dated 8 November 2011 comments that there is supraspinatus tendinosis and associated bursitis identified and that there is impingement on abduction. A steroid injection was performed and it was reported relief for more than 24 hours suggests significant inflammation has been relieved by steroid injection.[14]
[14] T14, p218.
A report by a general medical practitioner, Dr Retnaraja, written on 4 September 2015 referred to an ultra sound of the left elbow in October 2011 which indicated resolving olecranon bursitis and olecranon spur. A steroid injection was noted to have a good effect.[15]
[15] T14, p228.
X-Ray and Ultrasound Reports of Mr Lemon’s right and left shoulders from 23 February 2016 as a result of symptoms of bursitis on both sides identified “Fatty atrophy deltoid and teres minor presumably relating to previous axillary nerve injury” to the right shoulder. The left shoulder ultrasound identified subacromial bursitis.[16]
[16] T14, p289.
X-Ray imaging of the right wrist from 10 February 2017 indicates mild to moderate degenerative changes in Mr Lemon’s wrist.[17] It also found mild degenerative change at the radiocarpal articulation. There was also a bony density along the dorsal aspect of the proximal carpal row.[18]
[17] T14, p389.
[18] T14, p393; T14, p395.
The Employment Services Assessment Report of 2 May 2017 identifies Mr Lemon’s left shoulder and elbow injuries to be permanent.[19]
[19] T10, p129.
Dr Ng’s Centrelink Medical Certificate dated 27 June 2017 states that the prognosis for Mr Lemon’s bilateral shoulder bursitis is uncertain.[20]
[20] T14, p316.
An MRI report on Mr Lemon’s right wrist dated 17 July 2017[21] indicates on the ulnar side: an increase in signal intensity of the triangular fibrocartilage that may relate to a strain or partial tear. The imaging also identified regional ulnocarpal synovitis. A mild extensor carpi ulnaris tendinopathy and tenosynovitis was also indicated. Degenerative changes to the volar band scapholunate ligament including cystic degeneration and adjacent changes in the lunate were identified. Lesser degenerative changes involving the central dorsal band of the ligament were also found. Dr David Donovan’s MRI report queried whether there may also be lunotriquetral ligament central perforation.
[21] T14, p391.
Reports from late 2017 by rheumatology RMOs at the Royal Adelaide hospital, , Dr Bryant and Dr Bazzi were received in evidence.[22] They provide a summary of medical history, investigations and treatment. There is congruence between the reported observations and imaging in relation to Mr Lemon’s upper limb conditions during the qualification period. There is a history of trials of various treatments with periods of stabilisation and periods of decline. Mr Lemon has had negative reactions to relevant medications since 2006. While allopurinol is recommended at low dose (100mg) the report notes allopurinol intolerance previously.
[22] T14, p393; T14, p395.
Mr Lemon gave evidence that the gap in medical reports relating to his upper limb impairments between 2011 and 2016 was because he had been paid out by WorkCover and could not afford further treatment for the condition.
In evidence Mr Lemon said that he was unable to raise his arms above his shoulders and that his housemate Mr Raptopoulos put things in the overhead cupboards. In evidence Mr Raptopoulos confirmed that he helps with the daily household activities, and does a lot of the chores including the cooking, cleaning, weeding etcetera.
Dr Thoo, an occupational physician wrote three reports in mid-2016 about Mr Lemon’s conditions including the lower back, shoulder, feet and gout.[23] In addition, in the latest of those reports, Dr Thoo wrote on 22 August 2016 that he was “unable to say if (Mr Lemon) has exhausted all medical treatment or that his condition is stable or at maximum medical improvement.” Dr Thoo gave evidence to the Tribunal and stated that Mr Lemon had consulted him subsequent to August 2016, once in October 2017 and several times after the qualification period in 2018 and 2019.[24] He did not prescribe treatment and the primary reason for the consultations was to assess Mr Lemon’s suitability and capacity for work. In evidence, Dr Thoo stated that Mr Lemon would be unable to lift more than 10 kilograms and has a limited capacity for physical work, with better prospects for light sedentary work.
[23] T14, p308 - 310.
[24] T14, p310.
The Employment Services Assessment report dated 23 November 2017 indicated limited treatment and investigations over the past few years and that Mr Lemon would be seeking further specialist advice and treatment. It appears that he did exactly that, with the various consultations with Dr Thoo in 2018, which post-dates the qualification period.
The evidence provided to the Tribunal indicates that while there a number of diagnosed upper limb conditions, those affecting upper limb functioning during the qualification period appears to be bilateral shoulder bursitis. While the bursitis was fully diagnosed by an appropriately qualified medical practitioner, the Tribunal does not find there is evidence of treatment other than the occasional steroid injection and it cannot be concluded that the upper limb injuries were fully treated and fully stabilised in the qualification period.
Because the upper limb impairments are not fully treated and fully stabilised the Tribunal has not assigned a rating to upper limb function.
Lower Limb Function
Conditions affecting Mr Lemon’s lower limb function include gout in feet, ankles and knees bilaterally.
A report from Dr Wilkinson dated 28 June 1996 describes a left knee problem which was subject to a bone scan on 26 March 1996.[25] The comment was “There is a mild bilateral patellar tendonitis and patella-femoral arthritis.”
[25] T14, p326.
A medico-legal report from Dr Coates, Orthopaedic Surgeon, dated 5 August 1996 describes a ligamentous tear and operative meniscectomy with continuing pain in Mr Lemon’s left knee equalling the loss of 10% of the function of the left lower limb at or above the knee.[26]
[26] T14, p327.
Mr Lemon twisted his right ankle while working as a security guard in February 2005. About three weeks post-arthroscopy he was found by his orthopaedic surgeon, Dr Dracopoulos, in September 2005 to have tenderness and swelling over the right ankle with an obvious effusion. Mr Lemon was diagnosed with gout of the right ankle and probably of the left ankle.[27] By 10 April 2006 Dr Dracopoulos confirmed that operative treatment was unlikely to improve Mr Lemon’s condition of gout which resulted in chronic inflammation of the right ankle. Dr Dracopoulos stated that Mr Lemon would have a permanent impairment of the right leg below the knee of 10%.[28]
[27] T14, p264.
[28] T14, p273.
In a report dated 22 June 2006 Dr Fry, Orthopaedic Surgeon, offers the same diagnosis as Mr Dracopoulos and adds that ligament repairs had been ruled out and physiotherapy treatment had been abandoned due to lack of improvement.[29]
[29] Ex2, Dr P L Fry, Medical Report Re: Darren Carl Lemon, 22 June 2005.
Dr Susanna Proudman, Consultant Rheumatologist, reported in September 2006 that a number of medications had been tried to settle Mr Lemon’s persisting synovitis, gout, and chronic joint damage which was “as well controlled as can be expected” and that “Somewhat as a last resort, I have suggested a three month trial of sulfasalazine.”[30] In a report of 18 June 2007 Dr Proudman indicated that the sulfasalazine medication had been stopped after the last visit although there is no suggestion that there had been any ill effects from this.[31]
[30] T14, p353.
[31] T14, p279.
Dr Bazzi’s rheumatology summary dated 1 December 2017 describes gout, long term treatment including those that have helped stabilise the condition and those that had not.[32] Mr Lemon had been put on Probenecid in October 2017 recognising it was less effective than other medications but he may be able to tolerate these better than the alternatives. As stated earlier, a low dose allopurinol was also suggested noting a record of intolerance to this medication previously.
[32] T 14, p395.
Dr Black is also a rheumatologist at the Royal Adelaide hospital. She gave oral evidence to the Tribunal. She stated that Mr Lemon had been her patient for about the past 12 months although she had knowledge of the records of Mr Lemon’s prior treatment at the Rheumatology Unit of the Royal Adelaide Hospital. Dr Black indicated that the main focus of treatment was to reduce the frequency of Mr Lemon’s acute attacks of gout. This is achieved by reducing acid levels using medication and in particular allopurinol. She said Mr Lemon “is sensitive to slight fluctuations”, “every time we make an adjustment he experiences an increase in his gout”, and “dose changes have been the cause of many of his attacks”.

When asked when Mr Lemon first started seeing rheumatologists, Dr Black answered that he first saw Dr Proudman in 2007 when she was in private practice. When questioned about whether Mr Lemon was fully treated and stabilised in May 2017, Dr Black responded that his condition is now fully stabilised, however a she did not have results from May 2017 and could not confirm the situation at that time.
Mr Lemon’s lower limb gout and joint damage has been diagnosed and treated since 2007. Treatment which is directed at acute attack frequency rather than functional improvement has changed little in a decade. The frequency of Mr Lemon’s attacks, according to his treating medical practitioners, appear to be as stable as his acid levels allow. Dr Black suggested that Mr Lemon had “a couple of bouts every time we see him” and “we see him fairly frequently”. She was unable to confirm how frequently Mr Lemon had debilitating bouts historically.
Mr Lemon sustained damage to his knees and ankles on a number of occasions that date back to the mid-1980s. The bulk of the medical evidence about his lower limb conditions during the qualification period relate to the problems that has with his ankles, in particular the difficulties caused by gout. Because of the long period of time during which Mr Lemon’s lower limb condition has been diagnosed, the ongoing nature of similar treatment, and, the apparent lack of change in frequency of attacks except for the worse when affected by medication type and dosage changes, the Tribunal finds that during the qualification period Mr Lemon’s lower limb conditions were fully diagnosed, fully treated and fully stabilised.
Spinal Function
Mr Lemon provided many medical and imaging reports describing his spinal injuries. The majority of these reports follow an accident when he fell off his motor bike in 1985. In the following years there were a number of falls involving his back. In particular, he injured his lower back in a fall from a chair while he was working at the Queen Elizabeth Hospital in 1996. His GP, Dr Wilkinson reported on 28 June 1996 that Mr Lemon had a degree of musculo-skeletal degeneration of his low back and put his permanent disability at 20%.[33] This level of permanent disability was supported by Associate Professor Robert Bauze, orthopaedic surgeon, in a report dated 26 November 1996.[34]
[33] T14, p326.
[34] T14, p336.
In November 2002 Mr Lemon was involved in a motor vehicle accident resulting in an aggravation of his prior lumbar injury together with damage to his cervical spine. A report from Dr Scott Dundas, specialist in occupational medicine, dated 10 June 2003 describes a soft tissue injury to the cervical spine.[35] This diagnosis was supported by Dr Robin Jackson, Orthopaedic Surgeon, in a report dated 25 July 2003.[36]
[35] T14, p241.
[36] T14, p246.
A cervical spine MRI report by Dr Chan dated 27 July 2016 found Grade 1 spondylolisthesis at C2-3 together with mild cervical spondylosis with disc dehydration of the upper four cervical discs.[37]
[37] T14, p292.
Dr Cho’s Centrelink Medical Certificate of 24 March 2017 stated that Mr Lemon had been his patient since 19 September 2016 and a patient of his practice since 4 February 2016. [38] On the certificate he stated that Mr Lemon had permanent osteoarthritis of multiple regions with very severe disability consisting of pain and limitation of movement to multiple sites. Dr Cho described Mr Lemon’s treatment as stabilised and maximally treated with the only planned treatment as “Occupational physician input to attain disability pension”.
[38] T14, p313.
Dr Ng’s Centrelink Medical Certificate of 27 June 2017 states that Mr Lemon has multiple physical conditions including osteoarthritis of neck and back, that the condition is permanent dating from 1 June 2014, causes constant pain in back and neck, and is likely to deteriorate within the next 2 years.[39] A few days later on 7 July 2017 Dr Ng completed a “Verification of medical condition(s)” form describing permanent “Severe left C2/3 facet joint arthritis” and “L4/5 disc bulge, lumbar degeneration”.
[39] T14, p316.
A lumbar spine MRI report by Dr Wicks dated 13 July 2017 states that Mr Lemon had L4/5 disc degenerative changes with some loss of height and signal together with slightly asymmetric left L2/3 foraminal disc bulge resulting in mild encroachment on the foraminal left L2 nerve root and a small centrally located annular fissure at L2.[40]
[40] T14, p390.
Mr Lemon’s diagnosed spinal function conditions are summarised in a report of Dr Ng dated 4 July 2018 and include: [41]
(a)severe left C2/3 facet joint osteoarthritis with synovitis with an onset in 2003;
(b)multiple lumbosacral degenerative changes including;
(i)L4/5 disc degeneration;
(ii)left L2/3 foraminal disc bulge resulting in mild encroachment of the left L2 nerve root plus annular fissure with an onset of 1995.
In this report Dr Ng confirms that Mr Lemon had tried multiple treatments for his spinal conditions including physiotherapy, analgesic medication, facet joint cortisone injections and rhyzolysis procedure. Dr Ng also stated that the conditions will persist for more than two years from the date of the DSP claim. Dr Ng described the only planned future treatment of the spinal conditions was a referral to the chronic pain unit of the RAH in the hope that Mr Lemon’s pain management could be optimised.
[41] Ex 2, Dr D Ng, Medical report regarding Mr Lemon, 4 July 2018.
In evidence Dr Thoo, Occupational Physician, described Mr Lemon’s spinal condition as reasonably well controlled, investigated, and treated, stating that in general terms Mr Lemon had the capacity only to perform sedentary, light work due to his spinal conditions and gout. Dr Thoo said that he was unsure about the shoulder conditions.
When asked if Mr Lemon had any capacity for sedentary work in October 2017 Dr Thoo said that he had no capacity at all following a fall at Arndale shopping centre. Dr Thoo said that after the acute effect of the fall Mr Lemon recovered to his pre-aggravation state which may allow some sedentary work and it was not clear he could work for 15 hours a week.
Evidence both oral and in writing from Dr Thoo and Dr Ng, as well as in the certificate previously mentioned from Dr Cho all indicate that Mr Lemon’s spinal conditions were fully diagnosed, treated and stabilised. The only planned treatment was further pain management support. For this reason the Tribunal finds that during the qualification period, between 15 May 2017 and 14 August 2017, Mr Lemon’s spinal conditions were fully diagnosed, fully treated and fully stabilised.
Mental Health Function
Conditions affecting Mr Lemon’s mental health function are not subject to an agreed and exact diagnosis in the medical reports ; being variously described as depression, anxiety, adjustment disorder with anxiety, adjustment disorder with depressive mood, and suicidal ideation.
It is important to note that the Introduction to Table 5 of the Impairment Tables requires that; where a person has a permanent condition resulting in functional impairment due to a mental health condition, 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).
Mr Lemon’s stress, related to perceptions of mistreatment, are reported in medical reports as early as 1996,[42] depression and mood disorder has been reported in Job Capacity Assessment Reports dating from late 2009 including discussion of monitoring by his GP and an expectation of being referred to a psychologist.[43]
[42] Ex 2, medical report of Dr Clothier, 2 August 1996, p8; also T14, p326.
[43] T10, p111.
A psychiatric assessment was conducted on 25 September 2014 and a report prepared on 10 October 2014 by Dr Peter Miller, consultant psychiatrist. [44] Dr Miller diagnosed Mr Lemon as having an adjustment disorder with anxiety, although he did also consider hypomania with predominantly angry affect. Dr Miller referred in the report to Mr Lemon’s mental disorder, and to his psychiatric disorder. Dr Miller recommended treatment including short term medication (e.g. Quietapine or benzodiazepine) to manage anxiety and insomnia as well as mediation assistance to enable a return to work. In relation to prognosis Dr Miller stated “I believe that in due course Mr Lemon’s symptoms will wane and he will make a full recovery”.
[44] T14, pp300-306.
Dr Retnaraja, Mr Lemon’s then GP, provided a Centrelink medical certificate on 22 November 2014 which referred to a diagnosis of depression stating that the prognosis was that he would not be capable of resuming an eight hour work week within the next two years.[45]
[45] T14, p 212.
A Job Capacity Assessment Report dated 9 October 2015 conducted by a rehabilitation counsellor with a registered psychologist as a contributing assessor accepted that Mr Lemon had a verified temporary condition of depression and also repeating Dr Miller’s diagnosis.[46]
[46] T10, p120.
In a brief report by Dr Thoo, Occupational Physician, dated 20 April 2016 he wrote that Mr Lemon had suicidal ideation amongst other physical and cognitive impairments.[47] By 21 June 2016 Dr Thoo reported that Mr Lemon had been prescribed Mirtazapine to treat his depression.[48]
[47] T14, p308.
[48] T14, p309.
Dr Phillip Salonikis’, psychiatrist, report dated 26 September 2016, some eight months before the qualifying period, diagnosed Adjustment Disorder with Depressed Mood. In this report he stated [that he had] “…read and understood the tables relevant to Mental Health Function for qualification for Disability Support Pension.” He also stated “In my opinion, the Depressive condition has not been fully treated in the past, nor currently, and therefore cannot be considered to be stable.”[49]
[49] T14, p386.
Using DSM IV to inform the diagnosis, Mr Lemon’s treating psychologist Ms Sassi in a report dated 4 July 2018 diagnosed persistent depressive disorder (dysthymia) with anxious distress.[50] In oral evidence Ms Sassi reconciled the difference between her diagnosis and Dr Salonikis diagnosis stating that sometimes adjustment disorders turn into depression. Ms Sassi stated that by the end of the qualification period she had seen Mr Lemon 15 times and that she believed his condition was permanent at that time.
[50] Ex 2, L. Sassi (psychologist), Darren Lemon, Application for the DSP, 4 July 2018.
A report from Dr Ng, Mr Lemon’s GP, dated 13 July 2018 supports Ms Sassi’s opinion and suggests that Mr Lemon’s condition was ongoing at the time of his claim.[51] Mr Lemon’s depression was considered for Employment Assessment Reports just prior to the qualification period on 5 April 2017 (report dated 2 May 2017)[52] and just after the qualification period on 16 November 2017 (report dated 23 November 2017).[53] The earlier report states that “the condition has been considered temporary” as it was previously. The later report states “This medical condition is considered permanent for the purposes of this assessment”.
[51] Ex 2, Dr D Ng, Medical report, 13 July 2018.
[52] T10, pp132-133.
[53] T10, p143.
Noting in particular, the reports by Dr Miller and by Dr Salonikis about Mr Lemon’s mental health condition, together with all of the other evidence, the Tribunal concludes that his mental condition was fully diagnosed at the time of the DSP claim. While there may be some difference of opinion about features of the condition, the weight of evidence is sufficient to conclude that a diagnosis had been made.
The next question to be determined is whether the mental health condition was fully treated and stabilised during the qualification period. This involves consideration of the criteria in s 6(5) and (6) of the Rules for applying the Impairment Tables.
An Assessment Services Recommendation for Disability Support Pension Medical Eligibility report dated 23 May 2017 states that the condition is not considered fully treated or stabilised because “The recipient has not been treated with antidepressant medication and advice from Psychiatrist Dr Salonikis (26/9/16) was that with antidepressant medication symptoms may improve”.[54] Dr Salonikis prescribed Diazepam to treat Mr Lemon’s anxiety. It is apparent from evidence provided by Dr Thoo and Mr Lemon that he had been on antidepressants for some time prior to this assessment and also prior to Dr Salonikis’ report.
[54] T14, p314.
The general medical practitioner, Dr Ng, provided a medical certificate dated 7 July 2017 in which he confirmed that the treatment taking place at that time comprised anti-depressant medication and psychology.[55] The GP Management Plan, compiled by Dr Ng on 8 August 2017, noted that Mr Lemon’s mental health was being monitored and he was a high risk of self-harming. It was noted that he was consulting the psychologist, Ms Sassi, on a monthly basis, also that regular monitoring was necessary and consideration should be given to a mental health care plan.[56] Medication was prescribed.
[55] T14, p318.
[56] Ex 2, Dr D. Ng, GP Management Plan – MBS Item 721, 8 August 2017.
Mr Lemon’s pharmacist since November 2017, Ms Zoe Barwick, indicated in oral evidence that he was currently prescribed a number of medications related to depression and anxiety including Diazepam, Mirtazapine, and Amitriptyline.
In oral evidence Ms Sassi referred to a period of Mr Lemon’s worsening mental health during the period mid-2016 to late 2017. Psychological treatment helped to return him to his current state.
Psychological treatment commenced with Ms Sassi on 14 July 2016. By 4 July 2018, 26 sessions had occurred. Fifteen of those sessions took place up to and during the qualification period. In her report dated 4 July 2018, Ms Sassi acknowledged that “ongoing treatment under the auspices of a mental health care plan for psychology is planned….other reasonable treatments include continuing with CBT and engaging in acceptance and commitment therapy.” At that point, which is about 11 months after the qualification period, Ms Sassi considered that planned treatment was unlikely to lead to functional improvement within two years. Ms Sassi confirmed in her evidence that her treatment of Mr Lemon is still continuing and future sessions are booked.
Mr Lemon indicated that he now only sees his psychologist, Ms Sassi, every two months. As well as his medication he receives cognitive behaviour therapy which, in Mr Lemon’s view, largely consists of discussions about his dealings with Centrelink. At his worst before psychological therapy and drug treatment Mr Lemon describes having had suicidal ideations and a time when he took an overdose. He also spoke of an occasion when he just locked himself in his room.
During the qualification period, Mr Lemon’s treatment for his mental health condition was underway, notably through the prescription of anti-depressant medication and the provision of psychology support in therapy sessions. However, it could not be said at that time that the condition was fully treated in light of the requirements of s 6(5) and 7(6) of the Rules for applying the Impairment Tables. A treatment regime was underway in the qualification period and it was seemingly long term. Clearly it was reasonable treatment but it could not be determined at that time that further reasonable treatment was unlikely lead to significant functional improvement that would enable Mr Lemon to undertake work in the next two years.
Accordingly, the Tribunal finds that Mr Lemon’s mental health condition was fully diagnosed in the qualification period; however it was not fully treated and fully stabilised.
If so, does the impairment rate at least 20 points on the Impairment Tables?
For conditions that are determined to be permanent, the appropriate Impairment Table is selected to match the condition and an impairment rating is allocated. In Mr Lemon’s case the impairments determined to be permanent relate to his lower limb function (Table 3), and spinal function (Table 4).
As Mr Lemon’s upper limb function and mental health functions were not determined to be fully treated and fully stabilised no points have been allocated for them.
Lower Limb Function
The Tribunal has received medical reports going back about two decades describing ongoing functional loss in Mr Lemon’s left knee and reports going back over 10 years at the qualification period describing his functional loss related to gout in his left and right ankles and toes. These medical reports are supported by imaging results and arthroscopic investigations.
Mr Lemon described occasional walking through the day including up to 1,000 metres around the block on a good day he said he spent much of the day on the couch watching television. He stated that at times he hobbled to the toilet. He says he struggles with stairs because of the pain. He described constant pain of fluctuating intensity when he is on his feet.
Mr Raptopoulos, Mr Lemon’s housemate since he moved to his current property, described having to do many of the chores including washing, cooking, cleaning and weeding because “now he [Mr Lemon] finds it hard standing up”.
Mr Hughes who lives next door to Mr Lemon and describes himself as a very good friend stated that he can’t do the gardening but that Mr Lemon does keep his house immaculate cleaning as he goes. Mr Hughes also said that Mr Lemon sometimes goes fishing, crabbing and throwing a net off the jetty with another friend.
Mr Hughes described Mr Lemon as someone who keeps his house immaculate, “a place for everything and everything in its place”, “no dirt in it” and “his car is clean”. Mr Hughes indicated that he met Mr Lemon at the hotel at Port Wakefield where he was introduced by mutual friends. He said Mr Lemon is good company, has good friends that check up on him, and catches up with Mr Hughes next door. Mr Hughes also indicated that Mr Lemon had a number of good friends that he catches up with every few days. Mr Raptopoulos described Mr Lemon as astute spending a lot of time with paperwork in preparation for the hearing. Mr Hughes described Mr Lemon as “a fair man, upstanding and just, supportive of others.”
It is clear from the evidence a that Mr Lemon’s gout can be disabling from time to time, while for much of the time allows him to stand, walk, drive and undertake recreational activities, albeit sometimes in pain.
Section 11(4) of the Impairment Tables deals with assigning impairment ratings in relation to episodic and fluctuating conditions:
When assessing impairment caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
As well as taking into account the episodic and fluctuating conditions requirements, in order for Mr Lemon to qualify for a mild functional impact on activities using lower limbs at least one of the criteria from each part of this Table must apply:
(1)
a)The person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
b)The person has some difficulty walking around a shopping mall or supermarket without a rest; or
c)The person has some difficulty climbing stairs; and
(2)
a)The person is unable to stand for more than 10 minutes, or
b)The person can mobilise effectively but needs a lower limb prosthesis or walking stick.
Mr Lemon would meet the criteria in sub-paragraph 1 of the descriptors for a mild functional impact during the qualification period. However, to qualify for 5 impairment points the evidence would also have to indicate either that Mr Lemon is unable to stand for more than 10 minutes or that he requires lower limb prostheses or a walking stick to mobilise effectively. The evidence does not support such a finding.

At best for Mr Lemon, it is arguable that the impairment to the lower limb might be considered as falling between the rating of 0 points and the rating for 5 points. In those circumstances, the Rules for applying the Impairment Tables provide that: “…the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.”[57]
[57] Impairment Determination ss 11(1)(c).
Because Mr Lemon does not meet either of the descriptors specified in sub-paragraph 2 for a finding of mild functional impact on activities using lower limbs, the Tribunal allocates 0 points against Table 3.
Spinal Function
As discussed previously, a significant volume of medical and imaging information has been provided to the Tribunal in relation to conditions affecting Mr Lemon’s spinal function from prior to and during the qualifying period.
In evidence Mr Lemon indicated that he drives to town for medical appointments but rarely drives for more than a few minutes at other times. He stated that his housemate performed most of the overhead activities in the home and this was confirmed by his housemate, Mr Raptopoulos. Mr Lemon stated that he was unable to wash his own feet due to his inability to bend. He gave evidence that he had difficulty getting out of chairs and Mr Hughes, his neighbour, gave evidence that Mr Lemon falls over when he gets out of the car.
Evidence was also provided that on the occasion of his back spasms, Mr Lemon is incapable of almost any activity. His housemate, Mr Raptopoulos spoke of two occasions when he had to help Mr Lemon off the toilet when his back was in spasm.
A moderate functional impact on activities involving spinal function attracts 10 points as set out in Table 4 as follows:

Points

Descriptors

10

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

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

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

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

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

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

Based on the medical and corroborating evidence it is clear that Mr Lemon’s conditions impose a moderate functional impact on activities involving his spinal function as described in Table 4 of the Impairment Tables. For this reason the Tribunal allocates 10 points.
Total Impairment Rating
Mr Lemon’s conditions determined to be permanent relate to his lower limb function (Table 3), spinal function (Table 4) and in total attract an impairment rating of 10 points during the qualification period. This does not meet the 20 points required to qualify for DSP according to s94(1)(b) of the Act.
If so, does Mr Lemon have a continuing inability to work?
A person has a “severe impairment” if their impairment scores 20 points or more under the Impairments Tables, of which 20 points or more are under a single Impairment Table.[58] The Tribunal finds that Mr Lemon does not have a severe impairment and on that basis is required to meet a stricter test to qualify as having a continuing inability to work.
[58] Subsection 94(3B) of the Act
A person who scores 20 points or more under the Impairment Tables but who does not score at least 20 points on one Table must satisfy the requirements of ss 94(2)(aa), (a) and (b) of the Act. As one of the required criteria to qualify for DSP that “the person’s impairment is of 20 points or more under the Impairment Tables”[59] has not been met the Tribunal is not required to further explore Mr Lemon’s continuing inability to work as he cannot qualify regardless of the findings on this matter.
[59] Subsection 94(1)(b) of the Act
The Tribunal finds that Mr Lemon does not qualify for the DSP in the qualification period.
DECISION
For the above reasons the Tribunal affirms the decision under review.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for the decision herein of

Member I Thompson and Member G Hallwood

........................[sgnd]..............................
Administrative Assistant Legal
Dated: 9 August 2019

Date of hearing: 8 April 2019

Applicant:
In person

Representative for the Respondent: Mr C. Visser, Department of Human Services

[2019] AATA 4988

9 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness

Date of hearing:	8 April 2019
Applicant:	In person
Representative for the Respondent:	Mr C. Visser, Department of Human Services