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

Lymbery; Secretary, Department of Social Services and (Social services second review) [2019] AATA 1868 (12 July 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4373
Re:Secretary, Department of Social Services
APPLICANT

AndJohn Lymbery
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:12 July 2019
Place:Brisbane

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 27 June 2018 and substitutes a decision that the Respondent was not qualified for Disability Support Pension at the date of his claim on 6 June 2017 or in the 13 weeks thereafter.
...................................[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 set aside and substituted
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
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
12 July 2019
INTRODUCTION

The decision under review is the decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal dated 26 June 2018. On that date, the SSCSD set aside the decision of the Applicant and referred the matter back for reconsideration in accordance with a direction that Mr John Lymbery (the Respondent) satisfied sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) as at 6 June 2017.[1]
[1] Exhibit 1, T Documents, T2, pages 4-11, Decision of the SSCSD.
BACKGROUND
On 6 June 2017, the Respondent lodged a claim for Disability Support Pension (DSP).[2] On his DSP claim form[3] the Respondent lists the following disabilities, illnesses or injuries:[4]
·Lumbar back pain
·Depression
·Severe insomnia
·Chronic pain
·Severe sciatica nerve pain/numbness
·Anxiety
[2] Exhibit 1, T Documents, T10, pages 80-113, Claim for DSP.
[3] Exhibit 1, T Documents, T10, pages 80-113, Claim for DSP.
[4] Exhibit 1, T Documents, T10, page 109, Claim for DSP.
On 13 June 2017, an Assessor, whose professional discipline is listed as a Psychologist reviewed the Respondent’s claim for DSP and medical evidence and provided an Assessment Services Recommendation for Disability Support Pension medical eligibility report. The Assessor recommended that the Respondent’s claim was manifestly medically ineligible, providing the opinion that the Respondent’s conditions were not fully diagnosed, fully treated and fully stabilised.[5]
[5] Exhibit 1, T Documents, T11, pages 114-115, Assessment Service Recommendation for DSP medical eligibility report.
A decision was made to reject the Respondent’s claim for DSP on 3 July 2017, on the basis that the Respondent did not have an impairment of 20 points or more under the Impairment Tables.[6]
[6] Exhibit 1, T Documents, T13, pages 118-119, Centrelink Notice: Rejection of DSP claim.
The Respondent sought review of the decision and provided further medical evidence.
A Disability Support Pension Medical Assessment Recommendation dated 6 March 2018[7] and an Employment Services Assessment (ESA) Report dated 29 March 2018,[8] undertaken by Assessor’s whose professional disciplines were listed as Rehabilitation Counsellor and Registered Psychologist respectively opined that the Respondent’s claim for DSP should be refused.
[7] Exhibit 1, T Documents, T15, pages 121-122, DSP Medical Assessment Recommendation.
[8] Exhibit 1, T Documents, T16, pages 123-126, Employment Services Assessment Report.
On 11 April 2018, an Authorised Review Officer (ARO) affirmed the decision to refuse the Respondent’s claim for DSP. The ARO made the following key findings:[9]
[9] Exhibit 1, T Documents, T17, pages 128-129, ARO Decision and Notes.
·On 6 June 2017, you lodged a claim for Disability Support Pension.
·The 13 week qualification period starts on 6 June 2017 and ends on 4 September 2017.
·The medical conditions that you identified at claim related to your lumbar back pain and depression with symptoms of severe insomnia, chronic pain, sciatic nerve pain, numbness and anxiety.
·A Job Capacity Assessment Report dated 28 September 2015 which was prepared by a registered occupational therapist considered your lumbar back pain to be fully diagnosed but not fully treated and stabilised. The Job Capacity Assessment could not make any recommendation regarding your depression as this condition had not been identified at the time the assessment took place.
·On 31 May 2017, Dr Walker referred to a CT scan from June 2015 and noted that you have bilateral pars defects at L5 and a grade 1 spondylolisthesis at that level. He further reported that you had limited movements at the lumbar spine, your straight leg raising was normal and your reflexes were symmetrical. He noted that you told him that you had not had any effective treatment. You told him that you had just started physiotherapy at Royal Brisbane and Women's Hospital. Dr Walker thinks it is highly unlikely that surgical intervention will assist. He indicated that he arranged for an updated MRI scan and will review you following this.
·In the medical certificate dated 5 June 2017 Dr Ladhams referred to lumbar back pain that is permanent and likely to persist for two years or more and depression which was reported to be a temporary exacerbation of a permanent condition. The stated treatment regime was analgesia and consideration for counselling.
·An Assessment Services Recommendation for Disability Support Pension medical eligibility referred to Dr Walker's report of 31 May 2017 and the medical certificate from Dr Ladhams of 5 June 2017 and made a recommendation that neither condition could be considered fully diagnosed, treated and stabilised.
·Dr Gibbon found on 27 June 2017 that you have an L5/S1 lytic listhesis probably due to dysplastic pars end and with potentially critical stenosis of L5 lateral root canal. He also reported Schmorl's node at L1/2 level probably reflecting an adolescent injury.
·In a medical certificate dated 5 September 2017, Dr Ladhams wrote that you suffered from pars interarticularis defect and nerve root irritation. He marked that both conditions were permanent and likely to persist for two years or more. He also made a diagnosis of major depression which was not supported by corroborating evidence from a clinical psychologist or psychiatrist.
·Your condition of lumbar back pain is not accepted as being permanent as it was not fully treated and fully stabilised during the qualification period and therefore cannot be assigned an impairment rating.
·Your condition of depression is not accepted as being permanent as the diagnosis of this condition has not been confirmed by a clinical psychologist or psychiatrist.
·You do not have an impairment rating of 20 points or more.
On 4 May 2018, the Respondent sought review of the DSP refusal decision by the SSCSD.[10] On 27 June 2018, the SSCSD set aside the Applicant’s decision and substituted its own decision that the Respondent satisfied sections 94(1)(a), (b) and (c) of the Act and was therefore qualified for DSP. The SSCSD concluded that the Respondent’s back condition was fully diagnosed, fully treated and fully stabilised as at the Relevant Period and caused a severe impairment attracting a rating of 20 points under Table 4 and 10 points under Table 3 of the Impairment Tables. [11]
[10] Exhibit 1, T Documents, T19, pages 137-138, Referral to SSCSD.
[11] Exhibit 1, T Documents, T2, pages 4-11, 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 dated 3 August 2018.[12]
[12] Exhibit 1, T Documents, T1, pages 1-3, Application for Review.
On 30 October 2018, Dr Keith Adam, Specialist Occupational and Environmental Physician, examined the Respondent at the Applicant’s request. Subsequently, Dr Adam provided a report dated 5 December 2018 and opined that the Respondent’s back condition was not, at any time prior to the end of the Relevant Period fully treated and fully stabilised.[13]
[13] Exhibit 3, Medical Report authored by Dr Keith Adam dated 5 December 2018.
On 19 June 2019, a Hearing was held for this application. At the Hearing, the Respondent was supported by his wife Mrs Kaylene Lymbery. Both the Respondent and Mrs Lymbery gave evidence under affirmation by telephone.
The issue to be determined by the Tribunal is whether the Respondent is entitled to receive the 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 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Respondent have a physical, intellectual or psychiatric impairment;[14]
2.Does the Respondent’s impairments attract 20 points or more under the Impairment Tables;[15] and
3.Does the Respondent have a continuing inability to work?[16]
[14] Section 94(1)(a) of the Act.
[15] Section 94(1)(b) of the Act.
[16] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person could, or could not do, not on the basis of what the person chooses to do or what others do for them.[17] 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.[18] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[19]
[17] Section 6(1) of the Determination.
[18] Section 6(2) of the Determination.
[19] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[20]
[20] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[21]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[21] Section 6(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 whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and, whether treatment is continuing or planned in the next 2 years.[22]
[22] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[23]
(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.
[23] 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.[24]
[24] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; then identify the correct impairment rating.[25] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[26] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[27]
[25] Section 10 of the Determination.
[26] Sections 10(3) and (4) of the Determination.
[27] Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 2 impairment ratings, 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.[28]
[28] Section 11(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; and
(b)be unable to work for at least 15 hours per week independently of a program of support; 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 program of support 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.[29]
[29] 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 becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[30]
[30] 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 are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[31]
[31] 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 6 June 2017, being the date the Respondent lodged his claim for DSP, and ending 13 weeks later on 6 September 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Respondent’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Respondent 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.[32] The Applicant considers the Respondent’s impairments include mental health[33] and back conditions.[34]
[32] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 8, paragraph 44.
[33] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 8, paragraphs 45-46.
[34] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 8-11, paragraphs 47-59.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Respondent’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Respondent have a continuing inability to work?
Did the Respondent’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Hearing, the Respondent conceded that his depression and anxiety, which are referred to as his mental health conditions, were not fully diagnosed, fully treated and fully stabilised at the Relevant Period as he had not seen a psychiatrist or a clinical psychologist.
Based on the medical evidence before the Tribunal and evidence provided by the Respondent at the Hearing, I am not satisfied that the Respondent’s mental conditions were fully diagnosed, fully treated, and fully stabilised during the Relevant Period. Accordingly, the Respondent’s mental health conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Respondent’s back condition can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[35] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[36] 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.[37] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[38]
[35] Section 6(3) of the Determination.
[36] Section 6(4) of the Determination.
[37] Section 6(2) of the Determination.
[38] Section 8(1) of the Determination.
Evidence provided through the Respondent’s claim for DSP

In a report dated 4 June 2015, Dr Robert Stowasser, Radiologist opined:[39]
At the L5/S1 level there is a Grade 1 spondylolisthesis of L5 on S1 with bilateral chronic defects of the pars interarticularis of L5. Spina bifida occulta of L5 and of S1/S2 is noted. There is mild to moderate narrowing of the L5/S1 intervertebral disc with sclerosis of the vertebral endplates. There is a small to moderate sized central posterior disc protrusion associated with localised indentation of the anterior thecal sac. There also appears to be a right sided foraminal disc protrusion with probable impingement of the exiting right L5 nerve root.
[39] Exhibit 1, T Documents, T4, page 63, CT scan of lumbosacral spine results and findings.
In a letter dated 20 August 2015, Dr Farzin Zaer, General Practitioner, reported that the Respondent has a disc protrusion at L5/S1 with back and leg pain and he was on pain killers and gets physio when available.[40]
[40] Exhibit 1, T Documents, T5, page 68, Centrelink Notice: Request for information with attached medical reports.
On 28 September 2015, the Respondent attended a face to face Job Capacity Assessment (JCA) with an Assessor whose professional discipline is described as Registered Psychologist. The Assessor with the contribution from a Registered Occupational Therapist provided a JCA Report and opined that the Respondent’s back condition was fully diagnosed, but not fully treated and stabilised, noting nil specific treatment had been undertaken at the time.[41]
[41] Exhibit 1, T Documents, T6, pages 69-75, JCA Report.
In a letter dated 26 May 2017, Dr David Walker, Neurosurgeon advised that he had seen the Respondent on that day and reported:[42]
His pain is in the lower back and he says he has left leg pain as well. He has not had any effective treatment or any treatment at all really, he says. He tells me he has not seen another specialist. He tells me he has just started physiotherapy at the Royal Brisbane and Women’s Hospital. He says he has become depressed with the problem.
….
On examination, he looked miserable and was using a walking stick to walk around with. His back was tender to even superficial touching. He had limited movements at the lumbar spine. Straight leg raising was normal and reflexes were symmetrical.
I only had a CT scan from June 2015. This shows chronic changes which would predate any injury in 2016. He basically has bilateral pars defects at L5 and a grade 1 spondylolisthesis at that level.
[The Respondent] has a chronic pain problem obviously and it is highly unlikely that there is going to be any role for surgery. I think it is reasonable to get an updated MRI scan and I have organised that to be done and for him to see me again afterwards.
[42] Exhibit 1, T Documents, T8, pages 77-78, Medical report authored by Dr David Walker.
In a report dated 27 June 2017, Dr Wayne Gibbon, Radiologist, after performing a CT scan of the Respondent’s lumbar spine commented:[43]
L5/S1 lytic llisthesis probably due to dysplastic pars and with potentially critical stenosis of L5 lateral root canal.
There is also Schmorl’s node L1/2 level probably reflecting again adolescent injury.
Depending on whether surgical referral is being considered it may be worth a spinal epidural injection above the L5/S1 disc level for symptomatic relief?
[43] Exhibit 1, T Documents, T12, pages 116-117, CT lumbar spine test results and findings.
In an ESA Report dated 29 March 2018, an Assessor whose professional discipline is listed as Registered Psychologist, after conducting a telephone assessment with the Respondent noted:[44]
(a)the Respondent has a diagnosed spinal disorder (pars interarticularis defect, nerve root irritation);
(b)the medical certificate dated 5 September 2017 discloses no treatment, however the Respondent indicated he was using a daily morphine patch, NSAIDs, tramadol and diazepam;
(c)the Respondent's symptoms include severe back pain, neuropathic pain and loss of function;
(d)the Respondent reported that he was under consideration for a nuclear scan to have an epidural, that a recent scan had shown deterioration in his condition, that his symptomology included increased pain, left sided leg numbness, reduced physical tolerances to 20-25 minutes for sitting and standing, and that he was using a single forearm crutch to walk. In respect of his depression, he was reluctant to attend counselling or seek psychiatric opinion, but consults with his general practitioner; and
(e)the Respondent had a work capacity of 15-22 hours per week within two years with intervention, including completion of a pain management program and being assessed by an occupational therapist.[45]
[44] Exhibit 1, T Documents, T16, pages 123-126, ESA Report.
[45] Summary provided by the Applicant in Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 3, paragraph 17.
Evidence of Mrs Lymbery
At the Hearing, Mrs Lymbery provided evidence under affirmation and told the Tribunal:
·That Dr Walker had said that the Respondent was not a candidate for surgery and that she did not understand his reference to other specialists as:
… they won’t even touch him because of his spinal condition. So, he can’t get any therapies, because it was left too long, because it was misdiagnosed at first. So, yes, it wasn’t like, through ignorance it was through misdiagnosis that [the Respondent] didn’t seek treatment at first… He wasn’t able to get the right treatment and it’s left him, because of muscle deterioration, they’re not able to give him the treatment that would clinically say that he’s stable, but he is stable. He’s stable in his unstableness.
·By the Relevant Period no one would touch the Respondent because he was too unstable, because he was left for too long, because the initial treating doctor misdiagnosed his condition when he had his scan in 2015. She said:
I believe, they didn’t treat him. They put it down to a muscle issue and left it like that, didn’t actually treat him or refer him on to anyone except for giving him maybe some back exercises which [the Respondent] was not able to complete because of the pain and it was not until 2017, I believe, that he was actually given the diagnosis. So, by this stage no one else would treat him.
·During the Relevant Period the Respondent was getting pain relief and by that stage he was in physical pain all the time and also dealing with numbness, he was really incapable of working or doing anything really.
·Because of pain the Respondent was not looking after himself like he should.
On cross-examination, Mrs Lymbery told the Tribunal:
·She believes that the Respondent’s back is unstable because of the 2015 scan because of the way that their doctor, Dr Andrew Ladhams had read the report or interpreted it to them.
·She does not understand the medical terms in the reports so she relies on Dr Ladhams interpretation.
·She acknowledges there is no reference to the Respondent’s muscle deterioration in the evidence before the Tribunal, but she holds this belief because Dr Walker said that in his appointment.
·The initial diagnosis in 2015 was muscle spasm, however she was unable to remember the name of the doctor the Respondent saw at the time.
·She believes the correct diagnosis is what Dr Ladhams has said and when referred to the different reports of Dr Ladhams which describe the Respondent’s back condition in different medical terms that she is not a doctor and is not qualified to diagnose the condition or to know what the appropriate treatment of that condition is.
·Other than medication, the Respondent has undertaken some physiotherapy and has been engaging with Dr Ladhams.
Evidence of the Respondent
At the Hearing, the Respondent provided evidence under affirmation and told the Tribunal:
·His memory is shot so he has to look through the T Documents to find things, he is flat out remembering what he did last week, so he relies on his wife.
·He thinks he had one session of physiotherapy at the Royal Brisbane and Women’s Hospital, but they were waiting for Dr Walker’s report.
·During the Relevant Period, he was not seeing any other physiotherapists, occupational therapists or other doctors other than Dr Ladhams.
·In 2017 he could not walk that far, he could use stairs if there was a rail, he could not really stand for more than five minutes, he could not drive a car for that long, he could walk around a shopping centre if he had a shopping trolley, he could move around independently using his walking stick, he could not get a glass or something light from an overhead cupboard or hang clothes on the line, he could turn his head or bend his neck without moving his trunk, he could not remain seated for 10 minutes as sitting in one place would have hurt and he could pick up a light object from the dinner table but not a coffee table.
·His condition has gotten worse since 2017, as the numbness is getting longer and he is getting pins and needle sensations in his right leg.
On cross-examination, the Respondent told the Tribunal:
·He accepts that he attended two face to face interviews with Centrelink however does not remember them, however he would have given truthful answers to questions he was asked.
·He acknowledges that the ESA Report, dated 29 March 2018,[46] says that he could sit for 20 to 25 minutes, which was longer than what he had previously advised the Tribunal, but he cannot remember.
·The evidence he was giving at Hearing is not based on his memory only bits and pieces that he can remember but not all of it.
·Acknowledged the ESA Report says he could stand for 20 to 25 minutes in 2018.
·He can touch the top of his head.
·If he holds something above his head it will shoot pain down his spine and he will have numbness and will be off balance.
·He cannot twist very far, bend over that far or bend backwards that far without sheer pain and being in agony and numbness. He drives an automatic vehicle which is an Isuzu MU-X which is a low-level four-wheel drive. He has to use the handholds that are fitted to the car to step into the vehicle.
[46] Exhibit 1, T Documents, T16, page 124, ESA Report.
Evidence of Dr Andrew Ladhams
Dr Andrew Ladhams, General Practitioner, provided a number of Medical Certificates throughout the Relevant Period and review process. All of which made reference, albeit with differing descriptions to the Respondent’s back condition, associated depression and opined that the condition was permanent.[47]
[47] Exhibit 1, T Documents, T9, page 79; T14, page 120; T18, page 136; T20, page 139, T21, page 140, Medical certificates completed by Dr Andrew Ladhams.
The evidence provided by Dr Ladhams to the SSCSD was outlined as follows:[48]
Dr Ladhams' oral evidence to the Tribunal was that as per Dr Walker's report of 26 May 2017, the specialists have indicated that there is no surgery that will assist Mr Lymbery. There is really nothing further that can be done to assist him and has not been for some time. He does not understand why Dr Walker referred him to another MRI in his report because that did not occur and would not change anything in any event. Further treatment such as pain management or therapy is treatment to manage the condition rather than treatment likely to improve functional impact. He has considered the Impairment Tables and in his view [the Respondent's] impairment is approaching extreme under Table 4 but is at least severe based on him being unable to bend forward to pick up light objects. He also has an impairment of least 10 points on Table 3. He is also likely to have some impact on physical exertion and stamina due to pain medication.
[48] Exhibit 1, T Documents, T2, page 4, paragraph 19, Decision of the SSCSD.
At the Hearing before this Tribunal, Dr Ladhams gave evidence by telephone under affirmation and told the Tribunal:
·He was the Respondent’s treating doctor during the Relevant Period and remains so.
·He sees no prospect that the Respondent is going to see any benefit from any further therapy, so his back condition is stable, stationary and fully managed.
·He is not eligible for surgery.
·They are managing the Respondent’s pain the best they can.
·The Respondent has a secondary condition to his back condition – major depression. The depression centres around his long-term pain, so he has got a chronic pain syndrome.
·The Respondent is quite physically deconditioned with some progressive back problems and he suspects that there will not be a marked deterioration in the Respondent’s condition because he is not going to do anything that is going to further injure his back.
On cross-examination, Dr Ladhams told the Tribunal:
·He is a General Practitioner and has some conditions on his practice.
·In relation to people treatment of patients who suffer chronic pain:
Chronic pain is something that encompasses across the whole board of the human spectrum. So, to be fair to a patient, we don’t just focus on the pain itself, we focus on the whole person. We look at where the pain story comes from. We do a proper physical assessment. We actually try to ascertain if there’s something that can be remedied. So, looking at this patient, is there something that’s underlying his condition that we can resolve that may give him relief to his pain? We’ll also look at the psychosocial benefit - you know, the psychosocial story, or the - more of the backstory about how this all occurred and see if we can access some services to assess, and also treat him, in that space as well; mental health support, psychosocial support, counselling if that’s available, getting the patient to see if they can engage with those services as well. We also recommend that patients remain active, that they take up hobbies and interests, so that they’ve got some broad - broader sort of spectrum of life and that they also have supports within the community, including family. Now, [the Respondent’s] got a very supportive wife, and I can see that. He’s got a supportive family. [The Respondent’s] had some mental health stuff that we’ve worked on in the past. He’s medicated for mental health concerns. We also use multimodal sort of therapy. So, not only do we use strong analgesics, if necessary and indicated, we also try to use adjunctive therapy, antiepileptic’s, anti-inflammatories, simple analgesics. We also use things like heat and, you know, hydrotherapy, physical therapy, all of those things assist the patient with being active. One of the things we also work on is pacing, getting the patient to pace appropriately so they don’t overuse, you know, themselves, or overexert themselves, and if we can we get them linked to services that are affordable, available or within the means of the patient’s capacity.
·In relation to the treatments set out above that the Respondent has tried, he provided that the Respondent had engaged with a physio, he had conducted counselling with the Respondent and put a pharmaceutical regime in place, the Respondent uses heat to assist with back pain and remains as active as he can.
·He describes the Respondent’s pain experience as severe at times and would not have considered attending one session of physiotherapy as adequate treatment of a severe muscular condition however it may have aggravated the Respondent’s condition, so he may have stopped.
·He would not usually recommend that a patient persist with physiotherapy despite the pain, rather he would find another modality that suits or can be tolerated.
·He did not recall referring the Respondent to a mental health specialist, although he considers the Respondent to be having a severe mental health experience.
Evidence of Dr Keith Adam
Dr Keith Adam, Specialist in Occupational and Environmental Medicine, examined the Respondent on 30 October 2018 in order to assess the functional impact of his spinal condition and to provide an opinion in relation to his work capacity. Dr Adam was also provided with the relevant medical documents which are contained in the T Documents and provided a report dated 5 December 2018.[49]
[49] Exhibit 3, Medical Report authored by Dr Keith Adam dated 5 December 2018.
In summary, Dr Adam provided the following opinion:
·The Respondent’s back condition would undoubtedly have been present prior to the work accident in 2015. The Respondent described this to him as three micro fractures in his back and had appeared to have formed an exaggerated view about the significance of this finding and as a result has been overcautious and reluctant to move his spine, which in turn has led to increased stiffness and more pain.[50]
·He does not consider that the Respondent had undertaken reasonable treatment for his spinal condition prior to the Relevant Period.[51]
·In relation to further reasonable treatment that was not undertaken by the Respondent prior to the end of the Relevant Period that would be likely to result in a significant functional improvement within 2 years:[52]
In my experience, and supported by strong clinical evidence, [the Respondent] is likely to have gained significant benefit from a multidisciplinary rehabilitation approach which included a graduated program of exercises to strengthen the spinal muscles and improve spinal stability, whilst also addressing the psychological aspect of his injury, including his beliefs about pain and re-injury. I note that the job capacity assessment performed in September 2015 also recommended that with “back rehabilitation, multidisciplinary pain management and vocational rehabilitation a gradual increase in [the Respondent’s] capacity for suitable work is anticipated.” With such treatment, [the Respondent] would likely experience significant functional improvement, so that he would be capable of performing all normal household duties, and all but the most strenuous physical work.
·He does not consider that the Respondent’s spinal condition was fully treated and fully stabilised at the Relevant Period. He agrees that surgery has no role in treating the Respondent, because there are no clear indications for surgical intervention.[53]
·In relation to the Respondent’s continuing inability to work:[54]
As he had not had adequate treatment, I do not believe that [the Respondent] would have been able to undertake work during the relevant period. However, with appropriate treatment, as discussed above, I believe that he could recover sufficiently to be able to resume work for which he is appropriately training. I would expect that he would be able to return to work as a courier driver, or as a forklift driver, for example.
However, I would recommend that he not undertake heavy manual work, such as furniture removal, which would carry a significant risk of aggravating the underlying spondylolisthesis that is demonstrated in his lumbar spine.
[50] Exhibit 3, Medical Report authored by Dr Keith Adam dated 5 December 2018, page 4, paragraph 4.1.
[51] Exhibit 3, Medical Report authored by Dr Keith Adam dated 5 December 2018, page 4, paragraph 4.3.1.
[52] Exhibit 3, Medical Report authored by Dr Keith Adam dated 5 December 2018, pages 4-5, paragraph 4.3.2.
[53] Exhibit 3, Medical Report authored by Dr Keith Adam dated 5 December 2018, page 5, paragraph 4.3.3.
[54] Exhibit 3, Medical Report authored by Dr Keith Adam dated 5 December 2018, page 6, paragraph 4.3.6.
At the Hearing, Dr Adam told the Tribunal:
·He is a specialist in occupational medicine and he has a Fellowship from the Faculty of Occupational and Environmental Medicine.
·The first part of his consultation with the Respondent was taken up with asking him lots of questions to get a better understanding of the history of the injury and ongoing symptoms. He then conducts a physical examination and in the Respondents case he reviewed his back.
·He also takes into account his observations at all times through the consultation.
·In preparing his report, he would have had a preliminary look at some of the briefing material he was provided, but then after the consultation with the person he reviews it in more depth and puts together his detailed report.
·The report of Dr Stowasser from June 2015 and that of Dr Gibbon in June 2017 are describing the same thing just using different terminology. Neither report indicates that there has been any deterioration in the reported condition.
·2 or 3 per cent of the community have the same condition as the Respondent and do not have any symptoms and are not aware of it. Unless for some reason or another, they have a back injury or a back x-ray, it is often almost an incidental finding.
·When he examined the Respondent, he was very stiff and reluctant to move very far and his range of movement was greater than he would have expected given the radiology reports.
·In relation to whether he would describe the nature of the injury of the Respondent to be a structural or muscular injury:
Well, the radiology findings are clearly a structural abnormality but I believe that as a result of the fall that he described he, probably on top of that, suffered some sort of muscular strain.
·He interprets the report to mean that that the condition is not severe enough to require surgery.
·In relation to the muscular aspect of the Respondent’s back condition, the treatments he would have expected to have seen in order for the condition to be considered as good as it was going to get:
He would need a course of – first of all, some physiotherapy and then some graduated and supervised exercises directed towards, yes, regaining the strength and the flexibility in the lower back muscles and, in addition, he may also have required some assistance with some sort of psychological counselling because, clearly, people often develop a secondary, you know, response to pain.
·If the described treatments were undertaken at the time period around his consultation (October 2018), he considers that the Respondent would be able to reach a level of function whether he could engage in work.
·In cases like this, it can become a vicious cycle where if the person develops an adjustment disorder and becomes depressed because of their pain, then that can affect their perception of pain and then their perception of pain stops them from moving and they get stiffer and so they get more pain and it can almost be a downward spiral.
·Exaggerated views of the underlying condition and the severity of the condition can translate into a person’s level of function. People can become quite fearful of moving because they do not want to make, what they believe is a serious condition, it worse.
·Management of chronic pain requires a change to the person’s thinking of pain. In day-to-day life, we think of pain as a warning, but when you are in a chronic pain cycle it is no longer warning you because you know there is a problem there and it is actually a barrier to getting better. You seek to coordinate pain relief that people are having with the physical therapy they are receiving and with the psychology and by using all of those you can minimise the level of pain, but people sometimes have to push themselves.
·He noted he identified a discrepancy between what the Respondent was doing during the physical assessment and then in what he observed him to do throughout the consultation:
.. one of the things I commented on was at the end of the examination he was sitting down and he just bent forward and lifted his knee up to put his shoes on and I felt that was certainly an indicator – indicated a greater degree of flexibility than he had demonstrated during the formal examination.
Applicant’s Contentions

The Applicant contends that the Respondent’s back condition was diagnosed, but was not fully treated and fully stabilised during the Relevant Period.[55]
[55] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 8, paragraph 47.
The Applicant contended that it: [56]
… relies on Dr Adam’s report in which he provides an evaluation of the available medical evidence in light of having examined the Respondent personally, and concludes that at the relevant time no appropriate treatment modalities had been undertaken. Dr Adam is a specialist occupational and environmental physician, whose considered opinion ought to be preferred by this Tribunal in reaching a conclusion as to the nature of the Respondent’s back conditions and the types of treatments likely to result in significant functional improvement.
For the reasons outlined in Dr Adam’s report (at paragraphs [4.3.1] to [4.3.4]), the [Applicant] submits that a reference to surgery not having a role in the Respondent’s treatment regime did not mean that all reasonable treatment had been undertaken. Rather, surgery was not indicated at all, and other interventions including a multidisciplinary approach were more appropriate for the Respondent’s particular injury – a view supported by strong clinical evidence.
On that basis, and in the absence of any treatment regime having been undertaken prior to the end of the [Relevant Period], the [Applicant] submits that the back conditions cannot be considered fully treated and fully stabilised.
[56] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 9, paragraphs 52-54.
Respondent’s Contentions
The Respondent contended that he did not know all of the technical aspects of the matter however he has been in significant pain since the accident. The Respondent’s overall contention is that he satisfies the requirements to be granted DSP. He believes that there is nothing further that can be done for his back conditions and therefore the condition is fully treated and fully stabilised.
CONSIDERATION
Based on the evidence provided by the Respondent, Mrs Lymbery and Dr Ladhams provided at the Hearing, I accept that the Respondent has both mental health and back conditions that are causing him functional impairments.
In finding that the Respondent met the DSP requirements, the SSCSD did not have the benefit of the report subsequently provided by Dr Adam and relied upon the evidence provided to it by Dr Ladhams. It is not clear what reasons, if any, Dr Ladhams provided as to why he formed the view that there was nothing further that could be done for the Respondent’s back condition.
Based on the evidence before the Tribunal, I find that the Respondent’s back condition being pars defects and spondylolisthesis was fully diagnosed at the Relevant Period.
The evidence provided by the Respondent and Mrs Lymbery clearly indicate that they have relied on the advice they have received from Dr Ladhams and there is an acknowledgement that the Respondent has developed a mental health condition as a result of his back condition.
Dr Ladhams was animated in the provision of his evidence and showed a genuine level of concern for the Respondent’s well-being. However, Dr Ladhams did not provide a clear opinion as to why there was no further treatment available that would provide functional improvement for the Respondent. Dr Ladhams discussed the Respondent’s mental health condition as being linked to his back condition, however was unable to provide any reasoning for why the Respondent had not seen a mental health specialist. Further, Dr Ladhams set out his general approach to patients with chronic pain and secondary conditions. The Tribunal, however, was not convinced that he had engaged the Respondent fully in his described approach.
Further, Dr Ladhams was inconsistent in his description of the Respondent’s diagnosis, treatment and symptoms in the medical certificates that are before the Tribunal.
Consequently, I do not accept Dr Ladhams’ view that the Respondent’s back condition was fully treated and fully stabilised at the Relevant Period.
I find the evidence provided by Dr Adam more persuasive.
Dr Adam provided both his written report and oral evidence in a clear and structured manner. He made it clear that in his opinion, based on the imaging of the Respondent’s back, the aggravating accident and the information provided to him by both the Applicant and Respondent that at the Relevant Period there was and remains, further treatment that could reasonably be undertaken by the Respondent which would result in functional improvement and assist him to return to work.
Based on the medical evidence before the Tribunal and the evidence provided at the Hearing, I find that the Respondent’s back condition was not fully treated and fully stabilised during the Relevant Period as the Respondent had not engaged in all reasonable treatment. As such, the Respondent’s back condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
As I have found that the Respondent does not have a total of 20 impairment points, either on one table or cumulatively across multiple tables, there is no need to consider whether the Respondent met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Respondent had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Respondent’s back condition was fully diagnosed, however was not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Respondent’s mental health condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Respondent’s impairments do not attract 20 points or more under the Impairment Tables.
DECISION
I set aside the decision of the SSCSD dated 26 June 2018 and substitute a decision that the Respondent was not qualified for DSP at the date of his claim on 6 June 2017 or in the 13 weeks thereafter.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...............................[SGD]............................
Associate
Dated: 12 July 2019

Date of hearing: 19 June 2019

Advocate for the Applicant:
Ms Maleah Underhill

Solicitors for the Applicant: Mills Oakley Lawyers

Respondent: By phone

[2019] AATA 1868

12 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	19 June 2019
Advocate for the Applicant:	Ms Maleah Underhill
Solicitors for the Applicant:	Mills Oakley Lawyers
Respondent:	By phone