McCoy and Secretary, Department of Social Services (Social services second review) - [2019] AATA 4971

McCoy and Secretary, Department of Social Services (Social services second review) [2019] AATA 4971 (27 November 2019)
Division:GENERAL DIVISION
File Number: 2017/3161
Re:Alistair McCoy

APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Amy Wood, Member
Date:27 November 2019
Place:Melbourne

The decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) on 21 April 2017 is set aside and the matter is remitted to the Secretary for action pursuant to the findings outlined in this decision.
......................[sgd]..................................................
Ms Amy Wood, Member
Catchwords
SOCIAL SECURITY – disability support pension – impairment rating during qualification period – continuing inability to work – decision under review set aside and remitted
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Arman and Secretary, Department of Social Services [2019] AATA 678
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secondary Materials
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security Guide
REASONS FOR DECISION
Ms Amy Wood, Member
27 November 2019
BACKGROUND

On 29 February 2016, Alistair William McCoy (“the applicant”) lodged a claim for the Disability Support Pension (“the DSP”).[1] He relied on a “back injury 3 squashed discs, left leg gives way all the time, degenerative changes in right shoulder cuff, loss of muscle tone in right arm.”[2] The applicant was born in 1967 and was 48 years of age at the time he lodged his claim for the DSP.
[1] T16, pages 64-93.
[2] T16, page 89.
On 22 May 2016, the Secretary, Department of Social Services (“the respondent”) rejected the applicant’s claim for the DSP.[3] This decision was internally reviewed by an Authorised Review Officer (“the ARO”) who affirmed the original decision.[4] The applicant applied to the Administrative Appeals Tribunal (Social Services and Child Support Division) (“AAT1”) for a review of the decision made by the ARO. On 21 April 2017, the AAT1 affirmed the decision.[5]
[3] T18, pages 99-100.
[4] T22, page 109-114.
[5] T2, pages 3-9.
On 24 May 2017, the applicant lodged an Application with the General Division of the Administrative Appeals Tribunal seeking a review of the decision made by AAT1.[6]
[6] T1, pages 1-2 – “The reason I am asking for a review is I cannot work I am in pain all the time with my back and all my doctors say I am not able to work so I am asking for a nother (sic) review.”
ISSUE IN DISPUTE
The Tribunal is requested to review the decision made by the AAT1. The AAT1 was not satisfied that the applicant qualified for the DSP in accordance with section 94 of the Social Security Act 1991 (“the Act”) during the period 29 February 2016 and 13 weeks thereafter (“the qualification period”).[7]
[7] Between 29 February 2016 and 30 May 2016.
In summary, the Tribunal is required to consider whether as at the time of applying, or during the qualification period, the applicant had any impairment(s) and, if so, whether the impairment(s) attracted a rating of at least 20 points. It is noted that there is no dispute that the applicant’s spinal impairment was fully diagnosed, fully treated and fully stabilised at the relevant time,[8] however, the point remains in dispute in relation to his shoulder, arm and leg conditions.
[8] This point was conceded by the Respondent but not before the AAT1 decision in April 2017.
If the Tribunal is satisfied that the applicant’s impairment(s) attracted a rating of 20 points, it is then necessary for it to decide whether the applicant had a continuing inability to work in accordance with the Act.
HEARING
The Application was listed for hearing in Melbourne on 29 August 2019. Both parties were legally represented by capable solicitor advocates.
The applicant, Alistair William McCoy, orthopaedic surgeon Mr Thomas Karl Kossmann and occupational physician Dr Christopher Gerard Minogue gave evidence and were cross-examined.[9] The following documents were tendered before closing submissions were made by the parties:
·Exhibit A – Section 37 documents marked T1 to T26, pages 1-149.
·Exhibit B – Supplementary Section 37 documents marked ST1-11, pages 1-101.
[9] All three witnesses appeared and gave evidence by telephone.
After giving evidence by telephone, the applicant asked to be excused from remaining online due to his condition. The Tribunal granted the request and the remainder of the hearing was conducted by his representatives in his absence.
At the conclusion of the hearing, further written submissions were requested by the Tribunal in relation to the recent decision by this Tribunal in the matter of Arman and Secretary, Department of Social Services [2019] AATA 678, and the question of whether the applicant had actively participated in a Program of Support when he was subject to a temporary medical exemption the day before he lodged his application for the DSP.
APPLICANT’S EVIDENCE
Mr McCoy gave evidence by telephone whilst laying on a bed with the electric blanket turned on, because it helps alleviate the symptoms of his back condition. He told the Tribunal that he currently receives a Newstart Centrelink payment and that he has no fixed address.
The applicant explained to the Tribunal that he injured his back “in 2006 or 2008 whilst working lifting chairs and marquees and things like that”. He said that he “squashed two discs” while working. He gave evidence that in 2006, he was working at a veterinary clinic. Amongst other tasks, he was required to lift dogs and do deliveries. He explained that his “boss” owned and operated several different companies in the local area. One of these was a function hire company. He explained that he would “deliver and unload chairs and marquees and things like that”. He said that, in 2006, he was off work for some time before he returned to work on light duties. He explained that his “boss didn’t care” and his duties quickly returned to normal duties. He said that he “did two more discs in 2015 while working” before he ceased working.
The applicant explained that he has “pain all the time”. He said the pain is “constant no matter what medication I take”. He explained that he would have trouble carrying anything over “probably 5kg” and that he cannot bend “very far” and can “only [twist] so far”. He agreed that he could not pick up a coin off the ground and that he cannot squat. He was asked if he could retrieve a coffee cup from a cupboard at about head height. He said he could not. He explained that he gave up work because a lot of the tasks (such as putting up tents and marquees) involved overhead work. He said that his neck “grinds a lot”, and that movement “causes pain”.
Mr McCoy explained that he can walk about five meters without assistance, but that otherwise he uses a walking stick. He said that he commenced using the stick “on and off in early 2016”. He gave evidence that his local shops are about 5km from where he is currently living, and that he could not walk that far, even with the assistance of a stick. He explained that he gets “pins and needles in his feet on and off”. He explained that he has trouble getting in and out of the car so he purchased a 4WD which is higher off the ground and easier to step up into. He said that when he completes his grocery shopping, he uses a trolley to support himself. He also explained that he uses a trolley with a heightened basket to avoid bending down into the basket. He said he does “little shops” that take approximately 10 minutes. He confirmed that these restrictions and limitations had been in place since 2016 when he applied for the DSP.
He gave evidence that if he stands for longer than five minutes, he starts to get “a lot of pain in my back”. He cannot walk on uneven surfaces and cannot climb stairs. He explained that he stands up and sits down a couple of times to manage the pain but then “I go and lay on the bed to take the weight off my back”. He explained that when he sits, he avoids sitting on a traditional chair but props himself up on a desk “so I can keep my legs straight” and take the weight off. He said he can sit for “at the most 15 minutes”. He can sit and stand to watch a television show for “half an hour”, but that then he has to go and lie down on the bed. He confirmed that this was the situation in early 2016 and beyond.
The applicant explained that he experiences “constant numbness between my hip in the front of my left leg between my hip and my knee”. He stated that he changes his posture “to get the circulation happening but sometimes my leg will give way on me”. He candidly explained that his situation “wasn’t quite as bad” back in early 2016, but that it was “still sort of the same”. He said “I could probably do things a little bit more often, but probably about the same”. He said that he had recently been advised to get a walker, presumably to replace the walking stick.
The applicant gave evidence that he takes “two Panadeine Forte every four hours”. He explained that this causes constipation and sometimes makes him “a little bit drowsy”. He explained that his sleep is disturbed by pain. He said he gets to sleep at about 2am and is awake at 6am. He said that he will “toss and turn all night”, and confirmed that this was the case “back then and still now”. He said that this impacts on him during the day because he is tired and unrefreshed, and needs to nap during the day. He gave evidence that the doctors have told him that he “will slowly get worse and won’t get any better”.
In relation to work, Mr McCoy confirmed that he has not worked since May 2015. He said that he hates the fact that he cannot work. He gave evidence that he had been doing the same job, for the same boss for 14 years. He said he stopped work because he couldn’t lift dogs anymore, he is in pain all the time and couldn’t do what he used to do. He gave evidence that he had been a handyman in the past but that he could not do that job now. He explained that he couldn’t do tasks like “welding, sanding doors, re-sealing doors”. He said he couldn’t stand to do these things and couldn’t bend as required. He was asked whether he thought he could work in a shop. He said he couldn’t because he could not walk around the shop using his walking stick. He explained that part of his role at the veterinary clinic was to serve customers but he does not think he could do that anymore.
Mr McCoy was asked if he thought he could work in a hardware shop. He said he didn’t think he could due to the amount of walking involved. It was suggested to him - what if you could sit and stand? He said he cannot sit or stand for any lengthy period of time. He was asked if he thought he could work on a building site. He gave evidence that he had done that sort of work when he was younger, however, he would not be able to do it now due to all the uneven surfaces. He was asked if he could drive a forklift. He said that if he needed to move quickly in the workplace to avoid a forklift, he wouldn’t be able to do that. Likewise, he said he did not think he would be able to work in a carpark, taking money at a boom gate. He said he could not sit for that long or, sit and stand in combination for long enough either. He said that this has been the case since early 2016 and thereafter.
The applicant was asked whether, in early 2016, he could have mopped the floor of a shop. He explained that this was one of the tasks he regularly performed at the veterinary clinic. He explained that it caused him pain in the back because of the twisting involved. He was asked if he could clean windows. He replied saying that he couldn’t because the task would involve stretching which he cannot do. He believed he could probably operate a leaf blower for a period of about five minutes. He said that all these limitations were all relevant to his back injury in early 2016.
The applicant confirmed that he attended the E-Works and “the job search place once in late 2015”. He said that “they don’t handle people with back injuries and disabilities”. He explained that they advised him to go to Max Employment. He stated that he went to the appointments he had with Max Employment up until he was given a medical exception from his general practitioner in 2016. He believed that in between the medical exemptions, he was engaging with Max Employment. He was asked whether he believed going to courses with Max Employment would have assisted his capacity for employment. He stated, “no”, and volunteered that he did do one course with them. The course was called: “What your ideal job would be?” Mr McCoy explained that even if he did do more courses with Max Employment, he still wouldn’t be able to work because of his physical limitations.
Under cross-examination, the applicant was asked about the treatment he has undertaken for his injuries. He stated that he has had some physiotherapy – “about six or eight sessions”. He was asked about his work at the veterinary clinic. He described himself as a “maintenance hand”. He gave evidence that he had been working about 38 hours a week, from 8:30am to 4:30pm. He said his duties at the veterinary clinic included “everything from working with animals, cleaning kennels and maintenance”. Mr McCoy explained to the Tribunal that his boss also owned and operated an earth moving company, as well as the convention centre business and the veterinary clinic. When he assisted in the earth moving business, he was required to drive loaders, move shipping containers on forklifts and things like that. He said that before he ceased work in May 2015, he was working 38 hours per week. He said that he “tried limiting myself but the boss didn’t care and that’s how I did more damage to my back”. Mr McCoy gave evidence that, as well as losing his capacity to work, he also had to get “rid of 13 dogs”. He explained that he now has one dog and that he got it about 12 -18 months ago. He stated that he doesn’t have to walk it – “I can just stand and tell it what to do”.
In relation to his motivation to work, Mr McCoy stated that he would have liked to continue working. He was asked why he formed the view that the job network providers wouldn’t be able to help him get alternative employment. He responded by saying that he knew he couldn’t work anymore. He said, “I couldn’t even do light duties anymore because I was already limiting myself. Even clipping a dog or a cat was hard because you couldn’t stand there for long doing it”.
In relation to treatment, the applicant agreed that he had a CT Scan two weeks after he ceased work and that it showed that he had a “degenerative back”. He gave evidence that at the time he was “doing self-physio”. He stated that he has been doing self-physio for years and is still doing self-physio. Mr McCoy gave evidence that the first orthopaedic surgeon he saw could not assist him because he specialised in hips and knees.
In relation to his current general practitioner, the applicant confirmed that his main general practitioner is Dr Nalin Fonseka. Prior to this he was seeing Dr Jane Neyland or Dr Graham Gordon. He gave evidence that he saw orthopaedic surgeon, Mr Kossmann, in November 2016 in Mildura. He explained that it was a five-minute appointment because Mr Kossmann did not have any of his records at that time. He explained that the second time he saw Mr Kossmann, he spent about 30 minutes with him. He confirmed that during this session Mr Kossmann examined his spine by performing tests on the spine and moving him around. In relation to the question of surgery, Mr McCoy gave evidence that every specialist he has seen has explained to him that he is not a candidate for surgery, however, he explained that it is his understanding that if his situation “got really bad”, Mr Kossmann would operate.
In relation to his current medication, the applicant gave evidence that he is currently taking Ibuprofen and using one Norspan patch once per week. He stated that he started seeing a pain management specialist about six months ago. He explained that they have given him different exercises to strengthen his legs, however, it is “not helping much”.
In relation to his current residential arrangements, the applicant gave evidence that he is of no fixed address but that he generally stays in two different places, each for a couple of months at a time. He was asked how he has the capacity to move his valuables month-to-month. He explained that he does not have “much stuff”, in particular, he explained “I don’t have to move or relocate any furniture”.
In relation to his capacity to drive a car, Mr McCoy gave evidence that he now drives a Holden Jackaroo 4WD station wagon that he purchased in 2009. He explained that it has wide steps which allow him to step up and sit on the seat and swing himself around. He gave evidence that he no longer performs head checks when driving. He stated that he only uses his side mirrors and does not even turn his head to reverse.
In relation to his work history, the applicant explained that he has been a handyman by trade ever since he left school. He said he has done several different jobs - plastering, trucks and refrigeration. He said he had been working at the veterinary clinic since about 2001. He said that he left school at Year 9 and has no tertiary education. He said that everything he has done, has been “hands on stuff but I’ve never had a trade”. He said that he hated school. In particular, he gave evidence that he didn’t like the reading, writing and maths. He said that he always had trouble right through school.
In relation to his use of computers, Mr McCoy gave evidence that he cannot use a computer. He said that in order to complete his Centrelink requirements, a friend assists him to log-on to the computer. He said that even if he could use a computer, he doesn’t think that he would be able to sit at a desk for long enough to do a job.
In relation to the possibility that he could perhaps return to work in the future he said “I doubt it”. When it was put to him that he was resistant to attending Max Employment, he said that this was not correct and stated “when I have an appointment, I’ve attended”.
Mr McCoy gave evidence that the range of movement in his spine varies from day-to-day. Under re-examination he said that he can drive for approximately 15 minutes before taking a break. He confirmed that he can walk using a trolley for approximately 10 minutes but then he needs to stop and lean up against the trolley and rest. He gave evidence that he is seeing the pain physician with the aim of reducing his pain through management. He said that he is also learning strategies on how to cope with the pain. He explained that at this stage there has been no improvement.
In relation to his use of computers, Mr McCoy was asked whether he used a computer whilst working at the veterinary clinic or in any other jobs. In response to this he said he hadn’t. He confirmed that he had spent 14 years with his last employer, but that his boss did not give him a reference at the conclusion of this period. He explained to the Tribunal that his boss “had the shits”. He stated that his boss “wouldn’t even give me the separation certificate”. Finally, in re-examination the applicant explained to the Tribunal that he enjoyed getting up every day and going to work.
EVIDENCE OF MR KOSSMANN
Mr Thomas Karl Kossmann gave evidence by telephone. He confirmed that the content of his two reports – 22 November 2016[10] and 19 July 2018[11] – were true and correct.
[10] T21, page 107.
[11] ST6, page 11.
Mr Kossmann explained to the Tribunal that he saw the applicant as a clinical practitioner as opposed to a medico-legal assessor. He explained the findings on the MRI dated 05 January 2016. He explained that there are degenerative changes at all levels in the applicant’s lumbar spine. He said that they were long-standing and included disc bulges. He explained that a disc bulge involves the disc pushing out into the back, compromising and impacting the spinal canal. He said that the imaging also shows some narrowing at the L3/4 and the L5/S1 level.

In relation to the applicant’s situation, Mr Kossmann stated that he has numbness and tingling. He explained that this is potentially from the compromise from the pressing of the disc on the nerve or a flare-up which may compromise the nerve root. He explained that this has not been verified objectively but clinically it has been reported. Mr Kossmann gave evidence that the applicant’s spine function is effected by pain issues and there is a limited degree of flexibility. He described the prognosis as being “not bright”. He said that in his opinion, the applicant needs some maintenance therapy, but that this would have to be monitored because sometimes this may aggravate a patient’s pain.
Mr Kossmann explained that any operation would be what is called a “salvage operation”, and sometimes this can leave people in a worse condition. He explained that in the event that he was to perform an operation at one level of the spine, it is likely that the next level “will go”. He was asked whether or not the condition could heal itself. He explained that it is never really going to get any better, however, he noted that the applicant will continue to have good days and bad days.
In relation to the applicant, Mr Kossmann said that it is not surprising that he has developed a type of limping to avoid the pain in his lower back as a result of his spinal condition. He also gave evidence that the type of injury is consistent with Mr McCoy’s reporting that he is unable to sit for a long period of time.
In relation to the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (“Impairment Tables”), Mr Kossmann stated that he was not instructed to examine Mr McCoy for the purposes of the Impairment Tables when he saw him in 2016. If that were the case, he would have conducted the examination with the Impairment Tables in mind. Mr Kossmann indicated that there is a limitation in relation to the Impairment Tables, however, he believes that the applicant would best sit between 10-20 points. The evidence of the applicant was put to Mr Kossmann to which he replied that “if that’s his evidence he would move into the 20 point category”.
In relation to the lower limb, Mr Kossmann indicated that “10 points would fit for him quite well”. He specifically said that (1) (a) and (2) and (3) (b) would qualify him.
Mr Kossmann agreed that he had a telephone conversation with occupational physician, Dr Chris Minogue. He explained to the Tribunal that Dr Minogue telephoned him. He said the call came “out of the blue and I was not familiar with the legislation”. Mr Kossmann gave evidence that, despite the applicant’s underlying spinal problem, he could potentially work 15 hours, however, he stated that he would not be able to do anything like pushing or pulling a heavy trolley or any physical work.
Mr Kossmann gave evidence that in his opinion, the applicant would have “major difficulty picking up a coin off the ground”, and he would be limited in relation to how long he could sit. He said that his pain medication would also impact on his capacity to work. He was specifically asked whether or not he believed the applicant could engage in mopping or window cleaning duties to which he replied “no”.
Under cross-examination, Mr Kossmann was asked whether or not he examined the applicant’s gait. He stated that he did not examine this. He explained that a patient’s gait is often very difficult to examine because the gait can change. Mr Kossmann explained that had the applicant’s gait been something that required investigation, he would have sent him for a gait analysis. He gave evidence that he could not recall observing the applicant having any difficulty walking into the examination room.
In relation to the applicant’s physical capacity, Mr Kossmann gave evidence that he believed the applicant would be able to do some overhead tasks but not consistently. He gave evidence that he should be able to do the matters expressed at 20 (1) (b) and (c) of the Impairment Tables.
Mr Kossmann gave evidence that the straight leg test and femoral stretch were negative indicating that there was no nerve root compromise. He explained, however, that it could be positive one day and not the next. He was asked whether he recalled the examination well to which he replied “yes”. He indicated that the physical examination conducted took approximately seven to ten minutes, and that the applicant attended alone otherwise he would have made a note.
In relation to the applicant’s situation generally, Mr Kossmann said that it is not completely bad but that it was also “not good”. He gave evidence, under cross-examination, that he did have patients with similar pathology to the applicant who were working. He indicated that they were doing “light duties”. Mr Kossmann was asked whether or not the applicant could potentially do light process or bench work. Mr Kossmann explained that he could not do that consistently because of the bending and rotation of the upper body that would aggravate his back problem. He stated that he would perhaps have a capacity to engage in light retail work at a hardware store if there was no real lifting or standing for long periods of time. He said that he could perhaps “try that a see how he goes”.
In relation to the potential job as a carpark attendant - taking and receiving money and opening the boom gate - Mr Kossmann said that he believed the applicant would be able to do that. In relation to the potential job as an attendant worker/door greeter, Mr Kossmann said that if he were able to sit and stand, do his exercises and take breaks, he could probably do this. Mr Kossmann added that a gradual return to work program would be best. Mr Kossmann was asked whether or not there was anything preventing the applicant from attending a job service provider or attending for vocational planning in order to increase his confidence and employability. Mr Kossmann indicated to the Tribunal that in his opinion, the applicant could do that.
Mr Kossmann explained that he has been in private practice in Mildura for a long time, working with patients who have been manual workers all their lives. He indicated that this class of employee (including the applicant), have a number of challenges ahead of them in order to return them to the workforce due to their limited transferrable skills. He said that after the age of 45-50 you then have a problem. He referred to the fact that they have no education and reiterated the limitations in relation to their transferable skills. In relation to his report, Mr Kossmann confirmed that the applicant reported to him in 2018 sleep and psychological issues. Mr Kossmann confirmed that he sees these two issues often in patients with pain.
In re-examination Mr Kossmann confirmed that it is not unusual to have patients who have a different presentation on different days. He indicated that this is the nature of pain. He gave evidence that so long as the work was not repetitive, the applicant could perhaps do it, however, there is always a danger that he would have a flare-up. Mr Kossmann indicated that the applicant has reasonable mobility and some movement. He stated that he is not completely incapacitated but he was not good also.
In relation to the job of carpark attendant Mr Kossmann was asked whether the applicant would have the capacity to lean out of the booth to retrieve money. Mr Kossmann gave evidence that if “he had to do this repetitively he would not be able to do it. However, if it was on a once off, yes”. He was asked whether or not he would be able to retrieve money that had dropped onto the floor to which Mr Kossmann replied that “he would have trouble doing so”.
In relation to the attendant work/door greeter, Mr Kossmann gave evidence that he could probably stand for five to ten minutes before requiring to sit for five to ten minutes and then requiring a break of 10-15 minutes every hour. He stated that the applicant would also have to have the flexibility and approval to perform his stretching exercises.
Mr Kossmann was asked about the mind set of men in their 50s and whether or not they were resistant to returning to work. Mr Kossmann said that he made no findings in relation to the applicant’s mind set or motivation, but confirmed that those specific types of questions were not asked of the applicant given that he was seeing him in a clinical setting as opposed to a medico-legal. Mr Kossmann said that he would require more information before giving an opinion in relation to any mind set issues. Mr Kossmann conceded that he had never seen the Impairment Tables before and reiterated that when he saw Mr McCoy, he was seeing him as a clinical patient and not for medico-legal purposes.
EVIDENCE OF DR MINOGUE
Dr Christopher Minogue, specialist occupational physician, gave evidence that he is a Medical Advisor for the Department of Health and Human Services. He gave evidence that he has approximately 30 years’ experience as a medical practitioner and has been in his current role since October 2010. He gave evidence that the content of his reports – 24 October 2018[12] and 4 December 2018[13] – were true and correct and he had no reason to make any changes.
[12] ST9, pages 87-96.
[13] ST10, pages 97-100.
Dr Minogue was asked about the report prepared by orthopaedic surgeon, Mr Max Leibenson in relation to the findings “on examination”. Dr Minogue stated that those results show that both nerve root compression tests were negative. He gave evidence that flexion of 60 degrees is “pretty good”, and confirmed that in his opinion the applicant does not satisfy 20 points under the Impairment Tables. He then gave evidence that given the results on examination, the applicant should be able to do things like (a) and (b) and other matters within the Impairment Table should not be a problem for him.
In relation to the applicant’s capacity to drive, Dr Minogue noted that in the Job Capacity Assessment it was recorded by the practitioner that the applicant reported that he had a capacity to drive for 30-60 minutes. He indicated that this capacity was consistent with a 10 point rating and not a 20 point rating.
In relation to the applicant’s capacity to return to work, Dr Minogue gave evidence that he believes he has a capacity for work that is suited to his type and level of disability on a part-time basis. In relation to restrictions, Dr Minogue believed that there was a psychological component impacting on the applicant’s motivation. He said that he believed the applicant was resistant to looking at alternative employment.
In relation to the applicant’s spinal impairment, Dr Minogue gave evidence that he believed he would have a capacity to participate in a Program of Support. He said that it would, in his opinion, have been reasonable for him to have interacted with them more than what he did. He indicated that the applicant is not totally confined in relation to his capacity for work, and he could have been assisted to find alternative work that would not have placed him at risk of injuring or re-injuring his back.
Dr Minogue acknowledged that both orthopaedic surgeons, Mr Kossmann and Mr Leibenson, had outlined some restrictions applicable to the applicant in their reports. He said that the restrictions essentially demonstrate that the applicant is restricted to light, non-repetitive manual work.
Dr Minogue gave evidence that in his opinion, if the applicant had participated more willingly with the employment services, it is possible that he would have been able to find alternative work.
Under cross-examination, Dr Minogue agreed that he is an employee of Centrelink. He agreed that he had never personally met or examined Mr McCoy. He also confirmed that he had never even spoken to him. Dr Minogue explained to the Tribunal that he had conducted what is called a “file assessment”. Dr Minogue indicated that he was limited to looking at the written notes, and on occasions, he is able to speak to practitioners in order to clarify matters. In relation to the applicant, Dr Minogue stated that he was unable to speak to Mr Leibenson and was informed by his secretary that it was unlikely that he would be able to add anything further.
Dr Minogue appropriately acknowledged the specialist expertise of an orthopaedic surgeon, but explained that occupational medicine is the exact expertise in relation to work related injuries and illness.
In relation to the Job Capacity Assessor, Dr Minogue agreed that he relied on the accuracy of the history taken by that health professional. He also agreed that that person is, like him, an employee of Centrelink.
Dr Minogue agreed that there were physical limitations in relation to the applicant’s capacity to lift. He agreed that his capacity to lift was limited to two to five kilograms. He also stated that bending, tilting and side twisting were matters which he had a good range of movement as recorded by both orthopaedic surgeons. He stated that in relation to the applicant’s capacity to push and pull, that he would probably have difficulty if the trolleys were heavy or if the wheels weren’t running smoothly. He said that in relation to the applicant’s capacity to move quickly, this would depend on the working environment and the surface on which he was walking.
In relation to the possibility that the applicant could get a job at Bunnings it was put to him that climbing a ladder would be a hazardous activity for the applicant to undertake. Dr Minogue agreed, but said that the applicant could be excluded from that type of task if he were in the workplace. Dr Minogue gave evidence that in his opinion, in order for the applicant to remain comfortable during a shift he would need to vary his posture every 15-30 minutes.
In relation to the applicant’s attitude, Dr Minogue gave evidence that according to the documents, he had a negative attitude and lacked motivation. He noted that the documents indicated that he was reluctant to co-operate and that his conclusion in this regard was reasonable. Dr Minogue agreed that there appeared to have been several medical exemptions from the Program of Support. He confirmed that the medical exceptions from August to November 2015 made no mention of any psychological condition impacting on the applicant’s presentation or incapacity.[14]
[14] Centrelink Meedical Certificate completed by Dr Graham Gordon 17 August 2015 - 17 November 2015- T23, page 115.
Dr Minogue also agreed that Centrelink had approved the medical exemptions based on the medical certificates prepared by the applicant’s treating medical practitioners.[15] He agreed that the applicant was certified as unfit for work by Dr Jane Neyland from 11 February 2016 to 11 May 2016[16] and from 11 May 2016 to 11 August 2016.[17] Dr Minogue agreed that all of the certificates only refer to physical injuries preventing the applicant from returning to work and they make no reference to any psychological overlay.
[15] See PST8.
[16] PT23, page 119.
[17] PT 23, page 122.
Under cross-examination, Dr Minogue confirmed that he had read and abided by the AAT Expert Witness Guidelines before preparing his reports. He rejected any suggestion that he was appearing as an advocate for Centrelink and confirmed he understood his duty to act ethically and professionally.
Dr Minogue gave evidence that he conducted a private practice for many years, and treated a number of patients with these sorts of back injuries. He explained that whilst the knowledge base between an occupational physician and a surgeon is often very similar, he explained that the key part of the occupational physician speciality is to identify occupations for injured patients.
Dr Minogue agreed that he was happy to accept the findings of Mr Kossmann because he had assessed the patient in person, but stated that based on those findings, the applicant has a capacity for any occupation where he’s not putting too much strain on his lower back and where he can alternate his posture.
DID THE APPLICANT’S IMPAIRMENT(S) ATTRACT A RATING OF 20 POINTS OR MORE?
The applicant relies on the following injuries “back injury 3 squashed discs, left leg gives way all the time, degenerative changes in right shoulder cuff, loss of muscle tone in right arm.”[18] The first question for the Tribunal is: did any of the above impairments, either individually or collectively, attract a rating of 20 points or more during the qualification period?
[18] T16, page 89.
It is noted that there is no dispute that the applicant’s lower back impairment was fully diagnosed, fully treated and fully stabilised at the relevant time. However, the respondent submitted that the evidence in relation to his right knee, right shoulder and arm does not support the same conclusion. The respondent further submitted that if the Tribunal is satisfied that these further impairments were not fully diagnosed, fully treated and fully stabilised at the relevant time, an impairment rating cannot be assigned to them.
The Tribunal is only permitted to rely on evidence and opinions in relation to the applicant’s medical condition(s) that refer to, or are referable to, the qualification period when determining the impairment rating.[19]
[19] See the decision of the Federal Court of Australia in the matter of Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [24]-[29].
The background of the applicant’s lower back condition, however, is a relevant starting point. The applicant gave evidence that he sustained a lower back injury at work in 2006 or 2008. He was examined by independent medico-legal general surgeon, Mr Michael Long at the request of CGU Workers Compensation Insurance on 23 July 2009. In his report dated 31 July 2009, Mr Long stated:
Present symptoms: Constant left lower back pain and also some pain in the right lower back. He indicates this continuous pain is 4-5/10 in severity. The numbness persists in the anterior aspect of his left thigh as before but occasionally radiates into his left foot and toes. He develops mid thigh pain particularly if he moves or twists suddenly…. The symptoms have remained constant over the last six months…
Walking: With the pain in his left leg he tends to limp. He indicated he carries a walking stick in his car and makes use of it from time to time…
Standing: Limited to one hour because of his symptoms and it is necessary to move around. He has difficulty in bending but can kneel with care.
Sitting: restricted to one hour and he finds it necessary to move around…
Examination. Alistair McCoy presented on time for his consultation with continued for fifty-five minutes. He was cooperative but had poor recall for dates. He presented his history without embellishment. He moved with a slight limp related to his left leg…
The worker has sustained a permanent injury to his lumbar spine through a work incident which first occurred in November 2006…
He sustained prolapsed lumbar L5/S1 intervertebral disc with left sided radiculopathy as a result of a work injury about November 2006. He continued to work with this discomfort and persisting paraesthesia of the left thigh. The symptoms were aggravated on 05/08/2008 resulting in ongoing back pain and left radiculopathy… [20]
[20] T8, pages 36-42.
The applicant was referred by his treating general practitioner, Dr Graham Gordon to an orthopaedic surgeon, Dr Leibenson in late 2015. In Dr Leibenson’s report back to the general practitioner, he stated:
Thank you for your referral of a 48-year-old gentleman on disability pension with longstanding back pain as the result of workplace injury for the last seven years. (Emphasis in original document).
The pain has gotten progressively worse. Back pain is persistent, varies in density, has a quality of dull ache. Anterior aspect of the left thigh is constantly numb. Movements such as bending, tilting, and side twisting are limited. Uses walking stick as needed…
On examination, normal gait. Stiff and flattened back. Loss of lumbar lordosis. Range of motion; forward flexion 60 degrees, extension 15 degrees, and side tilt 20 degrees to each side. Normal neurological examination… apart of the area of numbness at the anterior aspect of the left thigh distribution of the L1, L2 and L3 nerve roots, which is normal. Straight leg test and femoral stretch were negative.
IMPRESSION: … ongoing back pain and degenerative changes in his lumbar spine. I have sent him for MRI… I am happy to review him with the results. His problem would most likely warrant a referral to a spine service in a tertiary referral centre.[21]
[21] T11, page 49.

The applicant informed the Tribunal that Dr Gordon then referred him to “Adelaide”. At T13, it appears that the referral was made on 22 January 2016, approximately one month prior to the Application for the DSP being lodged.[22]
[22] T13, page 51.
From 17 August 2015 and throughout the qualification period, the applicant’s lower back injury was repeatedly classified by his treating general practitioner’s as “permanent”. He was continuously certified by the same practitioners as being unfit for any work and/or study.[23]
[23] See T23, pages 115, 117, 119 and 121.
On 05 April 2016, the applicant was interviewed “face-to-face” at Centrelink Mildura. A Job Capacity Assessment Report was prepared.[24] The assessor, a physiotherapist, was of the opinion that the applicant’s lower back condition was fully diagnosed but was not fully treated and stabilised because he was awaiting specialist assessment by the Royal Adelaide Hospital Spinal Injury Unit to determine whether he was a candidate for surgery, and if not, what could be done to assist in strengthening his back.[25]
[24] T17, pages 94-98.
[25] T17, page 95.
On 22 May 2016, Centrelink rejected the applicant’s application for the DSP.
The applicant submits that the medical opinion tendered supports a finding that his lower back condition ought to be rated 20 points. The applicant submits that he satisfies the criteria at Impairment Table 4 20 (1), and submits that his condition has a severe functional impact on his activities that require spinal function. The applicant’s oral evidence was consistent with this submission.
The applicant submitted that pursuant to Impairment Table 4, 20 (1), an impairment will warrant a rating of 20 points if one or more of the four descriptors is satisfied. The applicant also referred to and relied on Rule 11 (3) which states:
When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely. (Emphasis added).
The applicant also submitted that what has happened since the expiration of the qualification period is relevant because it demonstrates that the applicant has remained incapacitated due to his permanent impairment.
The respondent submitted that the findings made by orthopaedic surgeon, Dr Leibenson in late 2015, do not support a finding that the applicant’s spinal function was severe enough during the qualification period to warrant a rating of 20 points. It submitted that the appropriate level of points was 10. It also referred to and relied on the matters reported by the applicant to the Job Capacity Assessor in April 2016, and the findings made by Mr Kossmann in November 2016. Additionally, the respondent relied on the opinions expressed by occupational physician, Dr Minogue who had conducted a “file assessment”, during which he reviewed all the medical material which had been prepared by the applicant’s treating practitioners.
The Tribunal has considered all of the sworn evidence, the documentary medical evidence and the detailed submissions made by both parties.
The Tribunal notes that the applicant has suffered from a lower back condition since 2006. The way he described his pain and symptoms since then has been logical, rational and consistent. To his credit, the applicant remained working for a number of years after his initial injury and the subsequent aggravation in 2008. The Tribunal has no reason to doubt the genuineness of the applicant’s evidence. The Tribunal formed the view that he was a person who tended to understate, rather than overstate the severity of his situation. The Tribunal found his evidence entirely credible and reliable.
Whilst the information provided by the applicant’s treating general practitioners in medical certificates prepared during the qualification period is brief, the Tribunal is of the view that it is also consistent with, and corroborates, the applicant’s evidence in relation to his lower back condition.
On balance, the Tribunal is satisfied that the nature of the applicant’s lower back condition during the qualification period prevented him from performing the activities outlined in Impairment Table 4 20 (1), in particular (1) (d), normally and on a repetitive or habitual basis.[26] Accordingly, the Tribunal is satisfied that the applicant’s lower back condition warranted a rating of 20 points.
[26] For example: the applicant does not use a traditional chair to sit and take the weight off his spine, but instead will prop himself up on a desk.
Having found that the applicant’s impairment to his lumbar spine was a severe impairment, it is not necessary for the Tribunal to consider whether any of the applicant’s further medical conditions warranted a rating in accordance with the Impairment Tables. Likewise, it is not necessary for the Tribunal to consider whether the applicant actively participated in a Program of Support.
However, in order to qualify for the DSP, the applicant must also demonstrate that he had a continuing inability to work during the qualification period as defined by the Act. The applicant must satisfy the Tribunal that his impairment was sufficient to prevent him from doing any work independently of a program of support, or undertaking a training activity, within the next two years.
DID THE APPLICANT HAVE A CONTINUING INABILITY TO WORK?
Mr McCoy gave evidence that he has not worked since May 2015. He explained that he had been doing the same job, for the same boss for 14 years and that he stopped work because he couldn’t lift dogs anymore. He explained that he was in pain all the time and couldn’t do what he used to do. Mr McCoy stated that he would have liked to continue working and that he hates the fact that he cannot work anymore. He explained that when he ceased work, he couldn’t even do light duties because he had already been limiting himself and all tasks were now beyond him. The report of Mr Long in 2009 confirms that the applicant was on light duties at that time. There is no reason to doubt that this continued (as long as possible) as outlined by the applicant.
The Tribunal heard lengthy and helpful evidence from Mr Kossmann and Dr Minogue in relation to whether, during the qualification period, the applicant had a continuing inability to work. In summary, the applicant submitted that the Tribunal should prefer the opinions expressed by Mr Kossmann because he is a specialist spinal surgeon and, unlike Dr Minogue, he physically examined Mr McCoy and is not an employee of Centrelink. In brief, the respondent submitted that the opinion of Dr Minogue should be preferred because his medical specialisation specifically deals with work related injuries and illnesses, and that a key part of the occupational physician speciality is to identify occupations for injured patients. The respondent also submitted that Dr Minogue’s opinion was reasonable and balanced and that the suggestion that he was not impartial should be rejected.
In this case (in the absence of cogent evidence of a biased predisposition), the Tribunal is not prepared to make any finding that either expert was lacking the requisite degree of impartiality. The Tribunal was satisfied that both experts gave professional, modest and composed evidence in an entirely appropriate way.
In summary, the applicant submitted that:
a.the evidence of the treating general practitioners and Mr Kossmann should be preferred because, unlike Dr Minogue, they had the opportunity to physically examine the applicant;
b.the medical certificates prepared shortly prior to the qualification period and thereafter (including throughout the qualification period), all state that the applicant was unfit for any employment, training or study;
c.the medical exemptions granted by Centrelink demonstrate that it accepted the opinions expressed by the medical practitioners at that time;
d.the definition of “work” under the Act means the capacity to work for at least 15 hours per week on wages that are at or above the relevant minimum wage;
e.on all three occasions when the applicant was assessed by Centrelink in a Job Capacity Assessment – 10 May 2016,[27] 20 September 2016[28] and   16 October 2017[29] – his baseline work capacity was assessed as 8-14 hours, namely less than 15 hours;[30]
[27] T17, pages 96-97.
[28] T20, pages 104-105.
[29] ST4, page 7.
[30] Thus under 15 hours.
f.an overview of Part 3.6.1.67 of the Social Security Guide (“the Guide”) states that “a capacity to work for 15 hours or more per week means the ability to reliably perform work of 15 hours or more per week for a period of 26 weeks without excessive leave or work absences” (emphasis added);
g.the Guide also suggests that the work must be able to be performed in an open and unsupported environment;
h.the opinion of Mr Kossmann is straightforward – the applicant is physically unable to work unless significant concessions are available to him;
i.the significant concessions required are not real and do not reflect the realities of the open market;
j.there is no medical evidence to support the submission that any psychological factors were impacting on the applicant’s presentation during the qualification period; and
k.likewise, the suggestion that the applicant lacked motivation and did not engage with the job seeking services, is not supported by the documents, namely, the applicant:
(i)attended Ework Employment Solutions in Mildura in late 2015 and was referred to Max Solutions;
(ii)first attended Max Solutions on 12 December 2015 and was referred to the Disability Employment Services Program in the Employment Support Services;
(iii)attended Max Solutions with an exercise physiologist on three occasions in January 2016;
(iv)attended appointments with Max Solutions on four occasions in 2016 –     06 January, 13 January, 17 February and 05 April 2016; and
(v)was certified unfit for work and study by his general practitioners throughout the qualification period and medical exemptions were granted by Centrelink.
In summary, the respondent submitted that:
a.it would have been worthwhile for the applicant to have participated in retraining with the job services network agency because there was a reasonable degree of optimism that he could have returned to work;
b.there is a psychological overlay present which is preventing the applicant from returning to work – the applicant has convinced himself that he is unemployable and he has no motivation to work;
c.if the Tribunal is satisfied that there is a psychological component to the applicant’s presentation, then the Tribunal cannot be satisfied that it is his spine condition alone that is the cause of his continuing inability to work;
d.Dr Minogue’s opinion is compelling – so long as restrictions are in place, the applicant could work, for example doing light process work, bench work or car park attendant work;
e.Dr Minogue’s opinion should be preferred because of his thorough knowledge of what matters can and cannot be factored into an assessment of a patient’s inability to work pursuant to the criteria under the Act;
f.the opinions expressed by the treating general practitioners in the medical certificates lack detail and do not outline the matters upon which they based their opinions; and
g.the opinions expressed by the treating general practitioners appear to have considered matters that (according to law) must be disregarded, thus their opinions should be disregarded.
The Tribunal specifically rejects the applicant’s unsubstantiated submissions in relation to the evidence of Dr Minogue, and Dr Minogue generally. However, in coming to its decision, it has preferred the evidence of Mr Kossmann. Mr Kossmann’s evidence is consistent with the evidence of the treating general practitioners and the applicant’s own unembellished evidence in relation to his limitations.
The Tribunal is persuaded by the chronology of events and the progression of the applicant’s injury from 2006 to 2008 to 2015 and beyond. As stated above, the Tribunal was impressed by the evidence given by the applicant and his stoic commitment to work notwithstanding his back injury. The referral by his treating general practitioner to an orthopaedic surgeon in late 2015, is entirely consistent with the applicant’s evidence in relation to the deterioration of his injury. It is also consistent with his evidence that he remained working until his injury became too significant.
The Tribunal accepts that as at February 2016, the applicant was not completely incapacitated, however, it accepts Mr Kossmann’s evidence that he was “not good”. The Tribunal accepts that it is not unusual for patients to present differently on different days because that is the nature of pain. As stated by the applicant, his range of movement in his spine varies from day-to-day. As a matter of common-sense, this would undoubtedly impact on the reliability of any patient in the workforce, including the applicant.
The Tribunal accepts Mr Kossmann’s evidence that the applicant would be limited in terms of how long he could sit and stand for, and that his daily pain medication would also impact on his capacity work. For example, the applicant gave evidence that his medication sometimes makes him drowsy. Given the nature of the applicant’s back injury, the Tribunal has no hesitation accepting Mr Kossmann’s evidence that the applicant could not mop floors, clean windows or do repeated light bench work, process work or money collecting work at a boom gate. Dr Minogue was more optimistic and stated that the applicant has a capacity for any occupation where he’s not putting too much strain on his lower back and where he can alternate his posture.
Ultimately, the Tribunal is of the view that the workplace requirements suggested by Mr Kossmann reflect the significance of the applicant’s situation. Mr Kossmann was of the opinion that if the applicant were employed as a door greeter, an employer would need to permit him to:
(i)stand for 5-10 minutes;
(ii)sit for 5-10 minutes;
(iii)take a break for 10-15 minutes every hour; and
(iv)have the flexibility to perform his stretching exercises as needed.
The Tribunal has considered whether the evidence supports a finding that any psychological overlay was a cause impacting on his capacity to engage in work during the qualification period. The Tribunal rejects the respondent’s submission in this regard. None of the medical certificates at the relevant time refer to the applicant having any psychological upset or disturbance.
After having considered all the submissions, and after having reviewed all of the medical evidence, the job/employment reports and the oral evidence given at hearing, the Tribunal is satisfied that the applicant had a continuing inability to work and/or study during the qualification period as required under the Act as a result of his spinal impairment.
CONCLUSION
The Tribunal is satisfied that the applicant’s circumstances satisfied section 94 of the Act during the qualification period thus he qualified for the DSP.
DECISION
The decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) on 21 April 2017 is set aside and the matter is remitted to the Secretary for action pursuant to the findings outlined in this decision.

I certify that the preceding one-hundred and two (102) paragraphs are a true copy of the reasons for the decision herein of Ms Amy Wood, Member

.............[sgd]................................................
Associate
Dated: 27 November 2019

Date of hearing: 29 August 2019

Advocate for the Applicant:
Ms Jemma Cafarella, Associate Public Defender (Civil Justice), Victoria Legal Aid.

Advocate for the Respondent: Mr Pietro Nacion, Sparke Helmore Lawyers.

Date of hearing:	29 August 2019
Advocate for the Applicant:	Ms Jemma Cafarella, Associate Public Defender (Civil Justice), Victoria Legal Aid.
Advocate for the Respondent:	Mr Pietro Nacion, Sparke Helmore Lawyers.