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

McLarty and Secretary, Department of Social Services (Social services second review) [2019] AATA 4426 (1 November 2019)
Division:GENERAL DIVISION
2018/1127File Number:
Re:Keith McLarty
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:1 November 2019
Place:Melbourne

The Tribunal affirms the decision under review.
......................[sgd]..................................................
Member K. Parker
Catchwords
SOCIAL SECURITY – claim for disability support pension – numerous physical and mental health conditions – whether fully diagnosed, treated and stabilised – reasonable treatment – some, but not all, conditions found to be permanent – permanent conditions did not give rise to an impairment rating of more than 20 points under one or more Impairment Tables – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member K. Parker
1 November 2019
INTRODUCTION

This application is about whether the Applicant, Mr Keith McLarty, was eligible as at the relevant qualification period to receive the disability support pension (DSP) under the Social Security Act 1991 (Cth) (Act). The qualification period in this case commenced when Mr McLarty made his claim for DSP on 10 May 2017 and continued for 13 weeks, until 9 August 2017 (Qualification Period).
Mr McLarty was born in August 1952. He was 64 years old at the time he claimed the DSP and is now 67 years old. He is presently in receipt of the aged pension. He lives in Cranbourne North (a suburb of Melbourne) with his elderly sister and his niece (aged in her 50s, who works full-time as a cleaner). Mr McLarty has developed numerous physical and mental health issues which include the following:
(a)obstructive sleep apnoea (OSA);
(b)restless legs syndrome (RLS);
(c)bilateral shoulder rotator cuff tears;
(d)bilateral carpel tunnel syndrome;
(e)hypertension;
(f)morbid obesity;
(g)glaucoma;
(h)male menopause (B12 deficiency);
(i)type II diabetes;
(j)depression and anxiety; and
(k)adjustment disorder.
Mr McLarty worked as a baker until 1996. He had to cease this work as a result of suffering injuries to his shoulders. He was paid workers’ compensation and received a total and permanent disability payment from his superannuation fund.
Subsequently, for a period of time Mr McLarty received the DSP. Mr McLarty then took up work at Safeworking Solutions as a safety officer (Flagman) from 12 February 2005 to 4 July 2013. After he ceased working as a Flagman, Mr McLarty made a new claim for DSP in December 2015 (2015 DSP Claim).[1] On the DSP claim form, Mr McLarty claimed to have all of the conditions referred to in paragraph [2], except for “depression” which was not listed on the form.
[1] Refer to T-Documents T7.
A job capacity assessment (JCA) was conducted on 2 June 2016. Based on the recommendation of the JCA assessor, Mr McLarty’s 2015 DSP Claim was rejected by Centrelink, the Government agency responsible for administering the DSP. An authorised review officer (ARO) reviewed this rejection decision and affirmed it. The ARO’s decision was reviewed by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) and on 10 November 2016, the AAT1 affirmed the ARO’s rejection decision. As part of this review, the AAT1 also considered a further condition of “depression”.
On 24 April 2017, Mr McLarty contacted Centrelink to notify it of his intention to make a further claim for the DSP. This claim was lodged by Mr McLarty on 20 May 2017 (DSP Claim) which was more than 14 days after he had telephoned Centrelink to advise of his intention to lodge a claim.[2] Accordingly, the Tribunal considers that the date of Mr McLarty’s DSP claim is the date he lodged the written claim form on 20 May 2017.
[2] Section 13(1) of the Social Security (Administration) Act 1999 (Cth) did not apply in Mr McLarty’s circumstances.
Centrelink arranged for an Assessment Services Recommendation for DSP medical eligibility to be undertaken on 8 June 2017. The assessor formed a view that no further JCA was required and that the previous JCA (performed on 2 June 2016) was “current and valid”. On the basis of this recommendation and the previous JCA, Centrelink rejected Mr McLarty’s DSP Claim.
An Employment Services Assessment was conducted on 11 July 2017 for the stated reason: “change of circumstances”. Subsequently (in December 2017), an ARO reviewed Centrelink’s decision to reject the DSP Claim and affirmed it. Mr McLarty sought review by the AAT1. On 20 February 2018, the AAT1 affirmed the ARO’s decision (decision under review).[3] On 28 February 2018, Mr McLarty lodged an application seeking review of the AAT1’s decision by the General Division of the Administrative Appeals Tribunal (the Tribunal).[4]
[3] Refer to T-Documents T2.
[4] Refer to T-Documents T1.
On 29 March 2018, the Respondent, Secretary, Department of Social Services (Secretary), lodged a set of documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which will be referred to as the T-Documents. Mr McLarty initially provided some information to the Secretary’s representative in the form of hand written notes and a copy of a letter to him from DES – Disability Employment Services. The Secretary’s representative duly forwarded them to the Tribunal on 6 April 2018. On 29 August 2018, the Secretary’s representative lodged a Statement of Facts, Issues and Contentions (Secretary’s SFIC).
For a period of time, Victorian Legal Aid (VLA) was representing (or at least assisting) Mr McLarty.
On 13 December 2018, the Tribunal received from Mr McLarty further documents including:
(a)letter from VLA to Mr McLarty’s treating general practitioner, Dr Stuart Turnbill, dated 24 July 2018;
(b)letter from Dr Turnbill to VLA dated 29 November 2018;
(c)letter from Associate Professor Carolyn Allan, endocrinologist, to Dr Turnbill dated 15 August 2018;
(d)letter from Dr Juan Mulder, respiratory and sleep physician, to “general practitioner” (undated but showing fax date at top of letter of 15 June 2018); and
(e)letter from Dr Brendan Soo, orthopaedic surgeon, to Dr Turnbill dated 20 September 2016.
The hearing of this application was listed to take place on 18 December 2018. It took place by telephone at the request of Mr McLarty because he said he was “completely depressed” and that “on the spur of the moment” he could “say some awful things” and that his “anger took over”. He said he rarely left his home and would usually only go out about once a week. The Tribunal agreed that Mr McLarty could attend the hearing by telephone.
At the hearing on 18 December 2018, Mr McLarty told the Tribunal that VLA had ceased acting for him earlier that week and that he was awaiting further medical information which VLA had been assisting him to obtain. The application was part-heard on 18 December 2018. One of the issues raised by the Secretary was whether Mr McLarty’s mental health condition was fully diagnosed, treated and stabilised. Mr McLarty struggled to remember the type, and timing of, the treatment he had received in relation to his mental health condition. Mr McLarty told the Tribunal that he consented to his general practitioner, Dr Stuart Turnbill, being called as a witness in this application. In light of Mr McLarty’s mental health issues; the fact that he was unrepresented at the hearing; and that critical medical evidence was missing; the Tribunal adjourned the hearing to allow an opportunity for Mr McLarty to arrange for Dr Turnbill to be available to give evidence by telephone.[5]
[5] The Tribunal made this accommodation after taking into account the sudden cessation of assistance that was previously provided to him by VLA.
The resumed hearing took place on 29 January 2019. Dr Turnbill gave evidence by telephone at this hearing and was cross-examined by the Secretary’s representative. When Dr Turnbill gave evidence he referred to correspondence that had passed between him and psychologists who had treated Mr McLarty, and also to mental health plans that he had prepared for Mr McLarty. Those documents pre-dated the Qualification Period. Dr Turnbill undertook to provide medical records in respect of Mr McLarty to the Tribunal. The Tribunal adjourned the hearing to allow for the new medical evidence to be received.
On 11 April 2019, the Tribunal was provided with 337 pages of medical records held by Dr Turnbill in respect of Mr McLarty. The Tribunal provided those records to the parties and listed this application for a resumed hearing on 12 June 2019. At that hearing, both parties made oral closing submissions to the Tribunal.
Based on the evidence before the Tribunal and taking into account the oral and written submissions of the parties, this Tribunal concludes that Mr McLarty did not meet the eligibility requirements to receive the DSP as at the Qualification Period for the reasons explained below. Accordingly, this Tribunal affirms the decision under review the effect of which is to reject Mr McLarty’s DSP Claim.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP (as relevant to this application):
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2: For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases--either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)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.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…
Severe impairment
(3B)A person's impairment is 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.
“Impairment Tables” is defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years. The Impairment Tables assign ratings to determine the level of the functional impact.
“Impairment” is defined in s 3 of the Determination to mean:
A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
Note:   For permanent see subsection 6(4).
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note:    For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:    For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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.
Note:    For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Section 6(1) of Part 2 of the Determination provides: the impairment of a person must be assessed on the basis of what they can, or could do; not on the basis of what the person chooses to do or what others do for the person. Section 6(2) also provides that the person’s medical history must be considered before applying the Impairment Tables to a person’s impairment.
Further, s 11(3) of Part 2 of the Determination provides that a descriptor applies when the person can do the activity normally, on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Section 11(4) provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments; taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
ISSUES
The issues to be determined are:
(a)whether Mr McLarty had any physical, intellectual, or psychiatric impairments as at the Qualification Period;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised, and were more likely than not to persist for more than two years) as at the Qualification Period;
(c)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables;
(d)if so, whether Mr McLarty had a continuing inability to work; and
(e)unless the Tribunal finds that Mr McLarty had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one Impairment Table), whether he had satisfied the program of support requirements.
EVIDENCE
Mr McLarty’s oral evidence
At the hearing on 18 December 2018, Mr McLarty told the Tribunal that his shoulders were “very bad at the best of times”. Mr McLarty said he was diagnosed with diabetes in about 2000.
Mr McLarty said that in 2000, he was receiving the DSP but then he received a “payout”. He said he was told that he could not be on the DSP anymore, but could re-apply in 2006. He said that, in the meantime, he went back to school and completed Certificates III and IV in Occupational, Health & Safety. Mr McLarty said that while he was completing a Diploma, he met a friend who put him in touch with someone which enabled him to get “a job in the railways”. He said he loved it and worked there for ten years. He said he was essentially working full-time hours and he rose to a “Level III”.
Mr McLarty said that he passed a “medical” each year to do this work, and he tried to stay fit. He said as a 61- or 62-year-old, he had to have a stress test, which he said he passed with flying colours. However, Mr McLarty explained that he failed the sleep apnoea test. He said he used the CPAP[6] machine, but could not sleep. He said this diagnosis had, “knocked the stuffing out of me” and his employment was suspended on 3 July 2013. Mr McLarty said that he had not worked since July 2013.
[6] CPAP means continuous positive airway pressure.
Mr McLarty said he has seen Dr Mulder, respiratory and sleep physician, ever since this time. He said he was using a CPAP machine and taking medication. He said he never got back to the same sort of sleep that he had, before using the CPAP machine. He said he would wake up every morning and wanted to go back to bed.
Mc McLarty told the Tribunal that Dr Mulder noticed in 2014 that his leg was shaking and when he told Dr Mulder that this had been happening for some time, he referred Mr McLarty to “Monash”. He said he stayed overnight to undertake some tests and that he was diagnosed as having RLS which was disturbing his sleep.
Mr McLarty said he was about 115-120 kilograms in 2013 and was 5’8’’ (i.e. 173 cm) tall. He said he currently weighed 135kg. Relevant to this application, in 2017 Mr McLarty said he weighed about 128/129 kilograms. At that time, he said he did about 30 to 60 minutes of exercise every second day and that he “felt like a washed out rag”. He said he would go for a walk or use the exercise bike. He said he kept up this exercise program for about three to four months until the “depression and anger issues started”. He said he would not leave his bedroom and he “could not keep conversations going with his family”.

Mr McLarty said that he had lived with his sister for “practically” all of his life and that she was “nearly 80”. He confirmed that he also lived with his niece who was 51 years old. He said they lived in a five-bedroom house and that his niece or his nephew did all the gardening. He said his sister or niece prepared the meals and that he had “always relied upon them to cook”. He said he knew how to cook but he had not done so since before his mother had died. He said he did not make sandwiches for himself and that he rarely ate. He said he would eat if his sister or niece prepared a meal for him. He said his niece would bring him a cup of tea (in his bedroom) and that infrequently, he would make a cup of tea for himself.
Mr McLarty told the Tribunal that he “struggled with the outside world” and that in his room, he “could not annoy anyone and they could not annoy him”. Mr McLarty said he only went out once a week on a Monday to buy a lotto ticket and a newspaper. He said he had not been shopping for clothes for about 10 or 15 years and that he would only wear his boxers, singlet and t-shirt (in his bedrooms) and would only put on clothes when he went out.
Mr McLarty said that his sister or niece did his laundry but that otherwise, they would leave him alone. He said he was capable of doing his laundry but that “whether I do it or not is another issue”. He said that sometimes he would go for about three days without having a shower, and two to three weeks without having a shave. He said he struggled to wash his hair because of this shoulder condition.
Mr McLarty said he spent time during the day listening to music and watching sport on television and Foxtel. He said he did not drink alcohol and had not done so for about four to five years. When asked what else he did with his time, Mr McLarty answered, “I can fall asleep at the drop of a hat” and that “only when it gets hot, will I go outside”.
Mr McLarty said he had a car which was a Nissan X-Trail SUV. He said he attended to filling up the car with petrol. He said he struggled with the pulling the nozzle, but that he got it done. When asked whether Mr McLarty washed his car, he said he had not done so for three or four years.
Mr McLarty said he went out to visit his friends (Mr and Mrs W) when he was not in hospital (about once a fortnight) and that they lived about 16 kilometres away from Mr McLarty’s house. When asked why Mc McLarty had a car, he said, “no reason, except for when I see [Dr Turnbill] as his surgery is about 25 kilometres away”.
Mr McLarty was asked when he last visited his other family members. He said he went to visit his other sister for her 70th birthday party about two years ago.
Mr McLarty was asked whether he had seen a psychiatrist. He said he had only been seeing Dr Tom Eimany for the last four to five months. He said he did not have a medical report from Dr Eimany.[7] Mr McLarty told the Tribunal that Dr Eimany “was amazed that I have gone through all this and persevered. He is trying to walk me through, to come good again. He says I’m very badly depressed and starting to have memory loss”.
[7] In the medical records produced by Dr Turnbill, Dr Eimany prepared a number of letters which will be referred to in more detail below.
When asked about his treatment by Dr Turnbill, Mr McLarty said that Dr Turnbill did not think that he was entitled to assess him on depression. Mr McLarty said he started him off on Pristiq (i.e. desvenlafaxine) and then, Dr Eimany changed the dosage to 100mg (of Pristiq). He said in August 2017 he took mirtazapine for his depression. He said he was currently on Effexor-xr 350mg (i.e. venlafaxine) because Dr Eimany thought he would get more benefit from it.
Mr McLarty said that his RLS had disturbed his sleep and also caused aches and pains. He said that his legs jiggled around, even when he was awake.
At the hearing on 12 June 2019, Mr McLarty said:
These days I’m normally asleep in the afternoon. I can just be sitting in the chair watched a movie or listening to music and I just go out for a couple of hours. I don’t know if that’s to do with the medication, the depression or if it’s because of the male hormones.
Mr McLarty said he was “medicating on amphetamines and osteo-panadiene” to control his back spasms, shoulder pain and general pain he had during the day. He said he could drive a car, “but that was about it”. He said: “As an employer, you wouldn’t employ someone taking that amount of medication and who can fall asleep at the drop of a hat”.
Dr Stuart Turnbill, treating general practitioner
Dr Turnbill prepared a number of medical reports and completed some medical certificates in respect of Mr McLarty’s medical conditions. As mentioned, he also gave evidence on the second day of the hearing on 29 January 2019.
In a medical report prepared by Dr Turnbill dated 29 November 2018, he said he had treated Mr McLarty since 2006, initially in his capacity as an authorised railway health practitioner. He said that Mr McLarty had not been able to work since 2013, referring to his work as a Flagman. Dr Turnbill observed and opined in this report as follows:
Mr McLarty was unable to work because he has a complicated condition of hypersomnia, restless leg syndrome and obstructive sleep apnoea. He is on a combination of drugs to keep him awake and he requires CPAP to treat his sleep apnoea. This condition meant he was permanently unfit as a Rail Safety Worker as his condition was unable to be stabilised and treated to the level that would permit him to return to work. He remains tired and lethargic despite being fully treated by a sleep physician. I would consider this condition is fully treated, stabilised and permanent as he has been maximally treated yet has residual disability. The condition will last for more than 2 years. This condition will attract 20 points using Table 1 of the impairment tables. He suffers fatigue when performing day to day activities and is unable to walk far outside the home and needs to drive to shops and is unable to perform day to day household activities. He is unable to use public transport without assistance. He has continuing inability to work. He has very low energy levels which would preclude him undergoing any training. His condition is managed by Dr Juan Mulder, sleep physician and I include the most recent specialist report.
The other major condition is his bilateral shoulder dysfunction. He has chronic rotator cuff tears. He has been assessed in 2016 by the orthopaedic surgeon, Mr Brendan Soo and his condition is inoperable and is also therefore fully diagnosed, stabilised and fully treated. The condition dates to at least 2000. He cannot raise his hands above shoulder level and suffers ongoing pain at rest and at night requiring analgesia. This condition should be assessed using Table 2 of the Impairment tables – 5 points. He has difficulty picking up heavier objects, doing buttons and reaching out or above to pick up objects. He cannot work as a result.
The other health conditions include diabetes mellitus, depression, low testosterone levels and ischaemic heart disease. The diabetes and low testerone levels are treated by Profession Carolyn Allan and would also attract an impairment rating under table one which would be included with the above condition.
Dr Turnbill completed two GP Management Plan & TCA Review forms on 8 June 2016 and 6 July 2017 respectively. On both of those forms, Dr Turnbill stated that Mr McLarty was morbidly obese with a BMI (body mass index) of 40.1 and waist circumference of 131cms. He also stated that in relation to his weight, BMI and waistline, Mr McLarty was required to take the following “action”: “…change to low fat dairy/whole meal bread, etc/ ensure 4-5 mins movement every hour across day”.
At the hearing on 29 January 2019, Dr Turnbill gave evidence that in relation to Mr McLarty’s OSA and RLS conditions, he continued to be seen by a sleep specialist. He said that the sleep specialist was able to prescribe certain medications to Mr McLarty that general practitioner was not authorised to prescribe. He said that this continuing treatment was for the purpose of managing Mr McLarty’s conditions, not to cure them.
Dr Turnbill was asked how often Mr McLarty was experiencing shortness of breath during the Qualification Period. Dr Turnbill said it was not so much shortness of breath as it was that Mr McLarty was suffering from fatigue issues. He said that on 5 October 2017, Mr McLarty was not leaving the house and was living at home with his sister. He said that he attended Dr Turnbill’s clinic alone and drove there by himself. When asked, Dr Turnbill said he did not discuss with Mr McLarty as to whether he was able to use public transport.
Dr Turnbill stated that he considered that Mr McLarty should be assigned 20 points under Table 1 of the Impairment Tables. When asked to explain the basis for this assessment, Dr Turnbill stated that he was not leaving the home and that his sister did most of the work.
Dr Turnbill explained that Mr McLarty’s mental health issues first arose in 5 August 2014 due to a loss of self-esteem “due to lack of work”. He said that Mr McLarty was prescribed an anti-depressant in May 2014 before he started seeing a psychologist. Dr Turnbill confirmed that he referred Mr McLarty to Dr Fields on 26 August 2016 when he had retired under his superannuation fund, on medical grounds. He said that Mr McLarty’s condition had deteriorated at that point. He said that Mr McLarty had about 13 consultations with Ms Fields over the course of a few months. Dr Turnbill said he had referred Mr McLarty to a psychiatrist in August 2018. Dr Turnbill was asked why he did not see the need to refer Mr McLarty to a psychiatrist any earlier than he did given that Mr McLarty had made threats at Centrelink and, also his tendency to remain in his room all day. Dr Turnbill said he was unsure why he did not do so and then he said that he did not believe Mr McLarty was “actively homicidal”.
Dr Turnbill confirmed that Mr McLarty’s other conditions of diabetes (to a small extent), testosterone replacement and depression, had impacted on his lack of energy and fatigue levels.
Dr Turnbill told the Tribunal that treatment available for Mr McLarty’s obesity included weight loss; seeing a dietician; and receiving diabetes education. He said he had not discussed the option of lap-band surgery with Mr McLarty because “it was not financially possible”. Dr Turnbill said that McLarty’s conditions impact on each other.
Dr Juan Mulder, respiratory and sleep physician
Dr Turnbill’s medical records produced to the Tribunal included a diagnostic report dated 20 June 2013 by Dr Mulder concluding, as a result of a sleep study conducted at that time, that Mr McLarty had “very severe obstructive sleep apnoea in supine position and REM” and that the remainder of the study indicated “mild obstructive sleep apnoea”. In this report, Dr Mulder recommended urgent CPAP implementation and that his therapy should focus on weight reduction and good sleep hygiene. This medical advice was reiterated by Dr Linda Schachter, respiratory and sleep physician, in her letter of the same date which was provided as part of Dr Turnbill’s medical records.
In the medical records provided by Dr Turnbill there were further letters he had received from Dr Mulder in relation to Mr McLarty’s sleeping issues.
In Dr Mulder’s letter dated 13 May 2014 he referred for the first time to Mr McLarty’s condition of RLS in reference to a sleep study that was conducted at Monash reporting “frequent nocturnal periodic limb movements”. In this letter, Dr Mulder confirmed that clonazepam, a mediation that Mr McLarty was taking, was excellent for this condition.
Dr Mulder’s letter dated 5 August 2014 provided the following update as to Mr McLarty’s conditions:
Keith returned for review of his poor neurocognitive function and somnolence in the setting of sleep apnoea, restless legs syndrome and insomnia. When he used low does Dexamphetamine, his mood improves. This has not given much benefit to wakefulness though.
He has since been seen by a psychologist with benefit.
His sleep onset is much improved with Sifrol and Valdoxan. Even on days where he gets good sleep and 8 hours, his self-perceived somnolence remains. Note: his MSLT was 15 minutes in past, which is within normal range.
I’ve reduced his CPAP pressure to 8 cmH2O.
In summation, I have nothing else to add that will provide further benefit. He should pursue the psychological axis. He will be reviewed in 2 months to keep an eye on his dexamphetamine.
In a subsequent letter to Dr Turnbill on 9 December 2014, Dr Mulder stated as follows:
…In summation, this current regimen is the optimal one for Keith. He should continue on CPAP. We’ve looked at Seroquel, Clonazepam and Modavigil with either no benefit or cost concerns. He will trial some Restavit for the next few weeks. I still believe that he should see a sleep psychologist. I’ll catch up with Keith in 6 months.
In a further letter to Dr Turnbill on 26 May 2015, Dr Mulder confirmed that Mr McLarty had been to see a sleep psychologist for his poor sleep and as a consequence, he had tried to keep his mask on while sleeping (i.e. his CPAP compliance had improved) and his “sleep apnoea index” was well controlled. Dr Mulder said he wanted to trial Mr McLarty on a small dose of oxycontin (10mg) for his RLS and that he would review him in two months.
The next review of Mr McLarty by Dr Mulder on 28 July 2015 was positive, with Dr Mulder reporting that the additional oxycontin medication had “proven effective for 80 % of the week”. Dr Mulder summarised Mr McLarty’s situation as follows:
His CPAP is going excellent with well controlled sleep apnoea. His compliance is more than 6 hours a night. His dexamphetamine dose is unchanged.
In summation, he is stable and will return for review in 6 months.
On 5 January 2016, Dr Mulder informed Dr Turnbill that he had changed Mr McLarty’s medication for his RLS from oxycontin to Targin (containing oxycodone hydrochloride and naloxone hydrochloride anhydrous), due to the side effects he experienced while taking oxycontin (i.e. constipation).
After the next review in July 2016, Dr Mulder reported to Dr Turnbill that Mr McLarty’s RLS had improved with Targin, with minimal side effects. Dr Mulder considered Mr McLarty at that time was stable on his (then) current drug regime.
Dr Mulder reviewed Mr McLarty on 19 May 2017 at which time he reported that Mr McLarty’s sleep apnoea was “under excellent control”; however, his RLS was “playing up and still not optimised”.
Dr Brendan Soo, orthopaedic surgeon
Dr Soo prepared a letter to Dr Turnbill on 20 September 2016 to report that he had reviewed Mr McLarty on that day. Dr Soo observed and opined as follows:[8]
Keith has chronic irreparable posterosuperior (supraspinatus and infraspinatus) rotator cuff tears with early cuff arthropathy. Given his history and examination findings I feel that the tears are beyond the stage of surgical intervention. I would certainly recommend ongoing non-operative treatment and I have referred him to our physiotherapists to commence an anterior deltoid rehabilitation program for both shoulders. He also may benefit from intermittent corticosteroid injections for relief of his symptoms.
If is cuff arthropathy develops and if his pain increases then he may be a candidate for reverse shoulder arthroplasty in the future, however one would have to be cautious with this approach given his background history of obstructive sleep apnoea and diabetes.
In summary, Keith has chronic irreparable rotator cuff tears to both shoulders which at this stage I don’t feel are appropriate for surgical intervention.
I have not arranged for further follow up at this stage. However, if his symptoms develop a referral to Monash Hospital in Moorabbin would be appropriate.
[8] Refer to T-Documents T21.
Ms Mary Sandilands, previous treating clinical psychologist
The medical records produced by Dr Turnbill included a letter by him referring Mr McLarty to see Ms Sandilands, clinical psychologist, on 5 August 2014. In this letter, Dr Turnbill stated that Mr McLarty had been significantly depressed relating to a loss of self-esteem as a consequence of not being able to work and that Dr Turnbill felt it was time for him to be managed with supportive psychotherapy.
Ms Sandilands’ letters to Dr Turnbill about Mr McLarty were included in the medical records provided by Dr Turnbill. In Ms Sandilands’ letter dated 11 September 2014, she stated that she had seen Mr McLarty on six occasions and had used a “cognitive behavioural therapy” approach. She indicated that he engaged quite well with her and implemented her recommendations between sessions. She said the main focus of their session had been to build an understanding of the contributors to his emotional distress including the challenging situation he found himself in, as well as some “unhelpful thinking patterns” that lead to anger both at himself and the medical system generally. It seemed to the Tribunal that Mr McLarty initially benefited from this therapy, as indicated by the following comment of Ms Sandilands:
Mr McLarty has commenced an exercise program and has implemented recommended principles for increasing his exertion (small maintainable changes). Relaxation practice has also been introduced and Mr McLarty reports doing this several times a week. To date he has noticed small improvement including getting to sleep more quickly and on reading from his CPAP machine indicating he had seven hours sleep one night, something that had not occurred before. Even though Mc McLarty hoped for more significant improvements he is committed to continuing with these changes.
We are in the process of developing Mr McLarty’s understanding of the role his thoughts play in how he feels.
Mr McLarty stated that the sessions have been helpful and believed that he was feeling a little less frustrated/agitated…
In Ms Sandilands’ subsequent letter dated 13 October 2014, she confirmed that she had seen Mr McLarty on four more occasions. The report of Mr McLarty’s engagement with the therapy and reported increase in activity levels and exercise program was positive. However, Ms Sandilands flagged some potential barriers to improvement arising from Mr McLarty’s “unhelpful thinking” which included his concern about not working again due to the fatigue and the financial impact of this on his retirement and also his reduced confidence in his ability to return to work. It was established that Mr McLarty had “not tangibly changed his circumstances” which may have explained why he had reported that there was no improvement in his sleep, fatigue levels or mood.
In Ms Sandilands’ letter dated 27 November 2014, she reported having seen Mr McLarty for a further three sessions and that she had continued to use behavioural activation and cognitive restructuring to assist him to adjust to his new circumstances. Ms Sandilands reported as follows:
Mr McLarty reported improved mood over the last four weeks and reported engaging in more social activity, which he was able to enjoy.
Mr McLarty reported no change in sleep however. An acceptance approach to his sleep was introduced in the final session to reduce Mr McLarty’s agitation and arousal with this situation. This entails being less focused on how much actual sleep he is getting and not judging the situation so negatively…
Ms Sandilands requested that Mr McLarty be referred for further sessions at the beginning of 2015; however, there are no further clinical notes or letters by her indicating that she had continued to treat Mr McLarty.
Dr Simone Fields, previous treating psychologist and clinical neuropsychologist
In late-August 2016, Mr McLarty was referred to Dr Fields for the treatment of his depression under a mental health plan. In her letter to Dr Turnbill dated 24 August 2016, Dr Fields said that Mr McLarty had presented with “quite agitated effect” and that he reported that his primary concern was “anger management” stating that his anger had been “building since November 2015 when he first applied for the DSP”. This letter indicated that Mr McLarty had been “quite upset and frustrated” about having been assessed as not eligible for the DSP, as this had “put him under significant financial stress”. Mr McLarty completed a self-report mood questionnaire (DASS) indicating severe levels of stress; moderately severe level of depression and a normal level of anxiety.

Dr Fields made the following observations in her letter dated 24 August 2016 and opined as follows:
Keith will benefit from therapy to address his anger issues and improve his stress management, which hopefully will then serve to decrease his depressive symptomatology. He reported that he used to get much pleasure out of working with his trotting horses, however currently his anger outbursts make it too dangerous for him to be around them; he is likely to have an anger outburst if they were to accidently step on him or do something that escalated his frustration. As such, currently there is little in Keith’s life that brings him pleasure, and he finds it very difficult to relax.
I plan on seeing Keith initially on a weekly basis and will focus therapy on behavioural strategies such as activity scheduling, relaxation and practical strategies to target his stress and anger first. Keith would also benefit from mindfulness strategies, and I have already lent him The little book for Mindfulness to read, which he was quite keen to do. I am hoping that if we can make him less reactive, he will be able to reengage with his horses, which would in turn bolster his mood. Hopefully along the way, he may also have a positive outcome with his DSP appeal, which will also serve to decrease his stress…
Dr Fields wrote a further report to Dr Turnbill on 19 October 2016, updating him as to Mr McLarty’s mental health conditions. She reported that she had been seeing Mr McLarty regularly, that their consultations had progressed and that he no longer presented with “anxious affect” during their sessions. She said he had been “open and engaged in the therapy process” and had been diligent in completing allocated tasks between sessions. She also reported that he had responded well to the relaxation and stress management techniques, practising them on a daily basis. Notably, Dr Fields observed as follows:
…Whilst the techniques initially reportedly only had a very small effect on relieving Keith’s distress, more recently he has been reporting increased relief. In additional, Keith has also reportedly been using other behavioural strategies discussed, at times when he is attempting to cope with and contain rising anger.
Despite Keith’s engagement in the therapeutic process, he does however continue to experience high levels of affective distress. Whilst review quantitative assessment (DASS) of recent symptomatology has indicated a decline in stress symptoms since commencing treatment, levels of anxiety and depressive symptoms have actually increased; however, I feel that this is actually reflective of an under-reporting of symptomatology at our initial consultation, particularly given own anxious Keith presented at the time…
Currently Keith’s depression manifests as extreme frustration intolerance, and he remains extremely emotionally reactive. To date, utilising an evidence-based CBT approach, therapy has been primarily focused on anger management which has included psychoeducation, relaxation and grounding techniques and other behavioural strategies to manage acute anger. We have discussed an anger management plan, and Keith has also been keeping an anger diary to increase his awareness of the triggers for his anger, and the underlying thoughts that accompany his anger.
Keith reported that he has just recently started receiving the Newstart allowance while he waits for the outcome of his appeal against the decision that he did not meet criterion for eligibility to receive disability support. Whilst the return of an income stream has gone some way to alleviate Keith’s distress at his financial situation (hence the decline in stress symptomatology), he continues to harbour feelings of righteous indignation which result in significant information processing bias that serves to confirm and further fuel the underlying beliefs that maintain his rage, and contribute to his depression.
Given his ongoing depression and anxiety, further treatment is therefore clinically indicated, and now that good rapport has been established, I plan on targeting therapy more specifically on cognitive restructuring. Keith would therefore benefit from having access to a further four sessions this year under his current [Mental Health Care Plan]. I am also wondering, given the chronicity and severity of his symptoms, whether he would benefit from psychopharmacological treatment? However, I am aware that Keith already takes a large amount of medications, and there may be contraindications…
Dr Fields wrote to Dr Turnbill again on 30 November 2016 reporting the Mr McLarty had been attending regular sessions with her and had completed 10 sessions under the mental health care plan. In this letter, Dr Turnbill described Mr McLarty has having presented “highly agitated” referring to the decision that had been made to reject his claim for DSP and that his recent meeting with his local Member of Parliament about this had been unsatisfactory. Dr Field opined in this letter that Mr McLarty required ongoing psychological support and observed as follows:
Today Keith was very ambivalent about his need to continue fighting for his right to the DSP. Initially at the outset to four consultations he reported “I am done”, but during the session he then reported he would not give up and started getting agitated again. He remains very concrete in his thinking style, and is highly resistant to any cognitive therapy which attempts to challenge his belief that he has been mistreated. Today Keith acknowledged his father would have advised him to keep fighting for his rights and I believe his current resistance to letting go of this fight stems from an underlying unconscious belief that if he does so, he would be letting his father down. I have asked Keith to reflect upon this, in an effort to loosen the hold these thoughts have over his behaviour and mood.
As I discussed in our phone conversation, given Keith’s high agitation at present, I am wondering whether he would benefit from some sedative and antidepressant medication? Prior to receiving formal notification that his appeal has been rejected, his mood was actually starting to improve with a regular routine of going to the horse track every morning which we had instigated. Voluntary work at the track (which he does enjoy) is also a requirement for him to meet eligibility to continue to receive the Newstart allowance until he qualifies for the aged pension. Therefore, this activity needs to continue. However, after receiving notification that his appeal has been rejected, Keith’s mood has again plummeted.
In a further letter dated 16 March 2016 (it is apparent from its contents that this date is typographical error and was meant to be a reference to 16 March 2017), Dr Fields wrote to Dr Turnbill to inform him the Mr McLarty had decided to discontinue with psychological therapy. She said that he cited financial reasons, however, Dr Fields felt the underlying reason was that he “remained psychologically stuck” and was “refusing to let go of his anger”. In this letter, Dr Fields referred to a conversation she had with Mr McLarty at this time:
After he cancelled our scheduled appointment last week following another review of his application for the DSP, I called him to see how he was going. He reported that he has resigned himself to the fact that he wasn’t going to get the DSP, but was determined to continue taking every legal avenue possible to appeal the decision, in order to force Centrelink to pay ongoing legal bills. He said it was ironic that they were prepared to fund exorbitant legal bills instead of giving him the pension, but he viewed the expense as a form of retribution. I pointed out that this approach wasn’t actually effective, as Centrelink was an organisation and therefore there was no specific person who was incurring this added expense, however he couldn’t see my point. He is very stuck in his need for revenge of some kind and is unable to acknowledge that the only individual who is suffering at the moment is himself.
Currently, other than monitor his mood, there is nothing further I can do to assist Keith until he can overcome this need for retribution. He is benefiting from behavioural activation which seems to be improving his depression at one point, however since his latest appeal he reportedly has returned to spending most of his time in his room and his mood has again declined.
Given his current stance, I believe his depression will be ongoing, and perhaps a medication review would be beneficial. However, once he moves beyond this need for retribution, e.g., when he is entitled to receive the old aged pension, he could then benefit from further psychological therapy sessions, so please feel free to refer him back at any stage in the future, if you feel I can be of assistance…
On 19 December 2017, Dr Field prepared a medical report confirming that Mr McLarty had attended regularly for psychological therapy between August 2016 and January 2017. She reported that Mr McLarty had been through a number of reviews regarding his eligibility for the DSP which he found increasingly frustrating and anger provoking. She said this had exacerbated his condition and, despite also being prescribed antidepressant medication, his depression remained treatment resistant and debilitating. Dr Field opined as follows:[9]
…Whilst I have not seen Mr McLarty since January this year, he reported in a telephone conversation that his condition has remained unchanged and I feel he has been suffering from an Adjustment Disorder since being found medically unfit to work in his previous role as a railway flagman. As his physical condition has precluded him from finding alternative suitable employment, his mental health has also been declining due to the significant financial hardship he has been experiencing since having to cease his employment.
It is my opinion that given his current psychological state, I do not feel Mr McLarty has the cognitive capacity to work, and his mental health continues to be impacted upon by his reduced financial position.
[9] Refer to T-Documents T36/135.
On 12 June 2018, Dr Turnbill referred Mr McLarty to see Dr Fields again. Dr Fields saw Mr McLarty on 19 July 2018 as indicated in her letter of the same date. Dr Fields said that Mr McLarty presented “largely unchanged” and that his “affect was again quite reactive, anxious and highly agitated”. She said it heightened observably whenever he started discussing the ongoing situation regarding his DSP application. In her letter, Dr Fields observed and opined as follows:
…Review quantitate assessment of affective symptomatology (DASS) indicated extremely severe levels of depression, anxiety and stress which Keith reported had remained unchanged over the past eighteen months. However, he did acknowledge that since starting on Pristiq reportedly approximately four months ago, he didn’t feel quite as angry as he used to.
Keith described ongoing anhedonia, lack of initiation, feelings of worthlessness and increasing social isolation. He reported he spends 4-5 hours a day watching TV and spends most of his time in his bedroom. Apart from one friend who he reportedly visits on average once a fortnight, he is very socially isolated. He stated he only talks to family members at home if they come into his room. He is also not participating in any activities which he used to enjoy; instead of spending time with the horses at his trainer’s workplace on a daily basis which he was doing in 206, he might go once a month.
Given the severity and treatment resistance of Keith’s depression, I recommend a psychiatric review. He asked for a specific recommendation and I explained that I do work closely with Dr Tom Eimany (ph …) and would provide you with his details should you agree that a referral would be beneficial…
….Most importantly, a psychiatrist could also discuss other treatment options such as TMS,[10] should medication continue to be ineffective. Keith did not appear to be closed to considering this option.
At this stage, we did not make another appointment. I suggested he wait to see how things pan out after having a psychiatric review, should you agree. I do feel that until he has greater symptom relief, he is unlikely to benefit from psychological therapy. However, his ongoing litigious approach is not helping the situation…
[10] TMS means transcranial magnetic stimulation.
Dr Tom Eimany, consultant psychiatrist
On 17 August 2018, Dr Turnbill referred Mr McLarty to Dr Eimany. On 27 February 2019 Dr Eimany reported back to Dr Turnbill as follows:
Thank you for referring this gentleman for management of depressive symptoms and poor cognition in context of multiple medical problems. He has made various vague passive suicidal threats in context of dispute about disability support pension. He also had poor short term memory and word finding difficulties.
Brain imaging found him to have diffuse cerebral atrophy slightly more advanced for age. A trial of venlafaxine up to the maximum dose of 450 mg did not improve his cognitive performance and only a mild improvement in mood.
Keith has never had children and has experienced significant interpersonal difficulties due to some personality difficulties which I am sure is contributing to his difficulties obtaining the DSP.
At this point in time there is not more to gain from further psychiatric treatment. There will be a greater role for optimising his sleep apnoea treatment by repeating his sleep study and better control of his diabetes. Repeat neuropsychology testing in 6 to 12 months may demonstrate a progressive cognitive decline and qualify him for cognitive enhances.
Please refer him back if there is evidence of cognitive decline over the next 6-12 months.
JCA – 2 June 2016
On 2 June 2016, two assessors undertook a job capacity assessment (JCA) in relation to Mr McLarty.[11] The contributing assessor was a registered nurse. The qualification of the primary assessor was not stated on the JCA report submitted on 3 June 2016.
[11] Refer to T-Documents T29.
The assessors were satisfied that Mr McLarty’s respiratory conditions of OSA and RLS were permanent and they assigned five points to Mr McLarty under Table 1. The assessors stated that Mr McLarty reported to them that he was able to walk around; was still able to drive up to three hours; could attend his appointments; was independent with his personal care; could complete most activities of daily living; did not need any support to live independently; and could manage to do physical exercise for an average of 30 to 60 minutes.[12]
[12] Refer to T-Documents T11/68.
The assessors did not make findings in relation to the following conditions due to a reported lack of medical evidence and in some cases, because the conditions were well controlled: shoulder and upper arm disorder; carpel tunnel syndrome; Type II diabetes; hypertension; reproductive problem (male menopause); glaucoma; and morbid obesity.
The assessors considered that Mr McLarty had a baseline work capacity of 15 to 22 hours per week which they stated was not expected to increase with intervention.[13] The assessors noted that Mr McLarty had completed a “Form 3” education; Diploma in Occupational Health & Safety and a Certificate IV in Training and Assessment.[14]
[13] Refer to T-Documents T11/69&70.
[14] Ibid.
The assessors recommended that Mr McLarty be referred to Disability Employment Services – Employment Support Services (DES-ESS). The assessors noted that Mr McLarty “thinks that he is unable to work”.
Assessment Services Recommendation – 8 June 2017
On 8 June 2017, an occupational therapist (OT) undertook an assessment of Mr McLarty’s eligibility for DSP and issued an Assessment Services Recommendation (ASR). In the ASR, the OT described the conditions being assessed to include OSA and bilateral rotator cuff tear.[15] The report indicated that contact was not made with Mr McLarty’s treating health professionals as it was considered that it was not required. Nor was it considered by the assessor that contact with the Health Professional Advisory Unit was required.
[15] Refer T-Documents T29/120.
The OT’s recommendation was that Mr McLarty’s DSP claim be “rejected based on current and valid assessment”. The OT made note of the conclusions reached as to Mr McLarty’s eligibility to receive the DSP as made by the AAT1 upon review in relation to his previous DSP claim and the findings made by the previous JCA assessors. The OT stated that there had been no evidence lodged that suggested that Mr McLarty had pursued recommendations made by his orthopaedic surgeon (i.e. recommending physiotherapy and cortisone injections). The OT considered that the findings made in the previous JCA “remained current” and that no further JCA was required.
ESA – 11 July 2017
On 11 July 2017, a registered psychologist undertook an employment services assessment (ESA) in relation to Mr McLarty.[16]
[16] Refer T-Documents T31.
The assessor listed that Mr McLarty had a “respiratory disorder – other” cited as OSA and hyper somnolence with RLS, as noted by Dr Mulder. The assessor recorded that Mr McLarty had reported “daytime tiredness”.
The assessor also recorded as a condition, “shoulder and upper arm disorder”. The assessor noted that Mr McLarty had reported that he had received physiotherapy and cortisone injections and had seen an orthopaedic surgeon, but surgery was not indicated.
The assessor listed “carpel tunnel syndrome” based on Mr McLarty’s report and the fact that surgery had been performed to treat this condition. The assessor noted that Mr McLarty reported “pain in both wrists” but that he could “complete most tasks involving arms”. The assessor said there was no medical evidence provided to confirm this condition.
The assessor listed “Diabetes – Non Insulin Dependent” and separately, “Hypertension” as reported by Mr McLarty and that those conditions were “well controlled” and he was on medication for these conditions. The assessor noted that there was no medical evidence provided to confirm these conditions.
The assessor listed “Reproductive Problem - Other” as reported by Mr McLarty and that he had “male menopause” resulting in vitamin B12 deficiency. The assessor noted that there was no medical evidence provided to confirm this condition.
The assessor listed “Glaucoma” as a condition as reported by Mr McLarty and that he was using eye drops and had nil symptoms. The assessor noted that there was no medical evidence provided to confirm this condition.
The assessor listed “Morbid Obesity” as a condition as reported by Mr McLarty which he said made him tired. He said he was exercising every day. The assessor noted that there was no medical evidence provided to confirm this condition.
Of particular note, there were no mental health conditions listed by the assessor in this report. However, “psychological/cognitive assessment/intervention” was identified by the assessor as an intervention for Mr McLarty.[17]
[17] Refer T-Documents T31/129.
Mr McLarty was assessed as have a baseline work capacity of 15 to 22 hours per week in a “light less skilled” position with an example of “console operator” provided. The rationale provided by the assessor was that Mr McLarty had functional restrictions imposed by his respiratory problems. The assessor also stated:
…Customer reports day time tiredness which is worse in the afternoon may make it difficult to work full-time. Customer also has restrictions with overhead movements and heavy manual handling due to shoulder condition.
Mr McLarty is still able to drive, can attend his appointments, independent with personal care and can complete most activities of daily living.
With disability specific intervention such as ergonomic equipment, shorter shifts and the ability to sit, stand and walk as required and assistance to find and maintain suitable work client could build their work capacity to 15-22 hours.

The assessor noted that Mr McLarty did not require assistance with public transport and that he had access to a car and held a driver’s licence. The assessor said he was linked with a DES-ESS provider and that continued assistance from such a provider was recommended.
ARO review in December 2017
At the request of Mr McLarty, an ARO reconsidered Centrelink’s rejection decision. On 18 December 2017, the ARO decided as follows:
(a)Mr McLarty’s condition of OSA was a permanent condition. The ARO considered the evidence given by Mr McLarty at a previous AAT1 hearing that he could drive for up to one and a half hours; could use an exercise bike for 40 to 60 minutes five days per week and could walk 500m, but would be out of breath and sweaty after doing so; and assigned five points to Mr McLarty under Table 1;
(b)Mr McLarty’s condition of bilateral shoulder rotator cuff tear was not fully treated and stabilised, because the ARO considered that Mr McLarty had not followed the recommendations of Dr Soo to have cortisone injections and undertake physiotherapy; and
(c)Mr McLarty’s condition of depression was not fully treated and stabilised because the ARO said there was no information provided about the current psychological intervention, prognosis and functional impacts.
CONSIDERATION
In considering the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (Harris) at paragraph [1]:[18]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
[18] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Is the first requirement under s 94(1)(a) of the Act met?
Section 94(1)(a) of the Act requires the Tribunal to determine whether, as at the Qualification Period, Mr McLarty had a physical, intellectual or psychiatric impairment. Impairment is defined by s 3 of the Determination.
The Secretary accepts that this requirement is met. The Tribunal is satisfied on the medical evidence that the requirement under s 94(1)(a) of the Act is met because as at the Qualification Period, Mr McLarty’s medical conditions resulted in a loss of physical and psychiatric functional capacity affecting his ability to work.
Is the second requirement under s 94(1)(b) of the Act met?
The second requirement that Mr McLarty must meet is that his impairment(s) must attract a rating of 20 points or more, as assessed under one or more of the Impairment Tables. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is “permanent” and the impairment resulting from that condition is more likely than not, in light of available evidence, to persist for more than two years.
Under s 6(4) of the Determination, a condition is considered to be “permanent” if it was fully diagnosed, treated and stabilised as at the time of the Qualification Period and more likely than not to persist for more than two years.
At the hearing on 12 June 2019, Mr McLarty clarified that he was claiming the DSP based on his “shoulders, the sleep apnoea, the depression and anger and daytime somnolence”.
Accordingly, the Tribunal will consider each of the conditions of: bilateral shoulder rotator cuff injury; OSA and RLS; and his mental health conditions; to assess whether they were “permanent” as defined in the Determination and likely to persist for longer than two years. If so, the Tribunal will determine what impairment rating should be assigned to the “permanent” conditions under the Impairment Tables.
Bilateral shoulder rotator cuff injury – Table 2 (upper limbs function)
It was not in dispute that this condition was “permanent” as defined in the Determination, as supported by the extensive medical evidence confirming that this condition was fully diagnosed and had been fully treated and stabilised as at the Qualification Period. Specifically, as referred to in paragraph [61] above, Dr Soo described this condition as “irreparable” and that surgical intervention was not “appropriate”. Dr Soo recommended some physiotherapy and some cortisone injections (which took place in December 2016),[19] but this treatment was to provide some temporary relief to Mr McLarty of the pain he experienced from this condition, rather than to cure or improve the condition itself. The Tribunal is satisfied that as at the Qualification Period, no further reasonable treatment had been recommended for Mr McLarty which was reliably expected to have resulted in a substantial functional improvement of his upper limb function.
[19] Refer T-Documents T34/133&134.
Based on the evidence, the Tribunal is satisfied that this condition resulted in a functional impairment of Mr McLarty’s upper limbs. The Tribunal finds that as at the Qualification Period, Mr McLarty was unable to raise his arms (and therefore, unable to use them) above his head. The evidence supports a finding that Mr McLarty has continued to suffer from shoulder pain from this condition for which he takes medication on a continuing basis to ease the pain.
Table 2 of the Impairment Tables deals with impairment to upper limb function. The Introduction to Table 2 specifies that there must be corroborating evidence of the person’s impairment and that self-report of symptoms alone is insufficient. Such corroborating evidence may include medical reports or results of diagnostic or physical tests (or assessments). The Tribunal considers that another form of corroborating evidence may include reports made by the person claiming DSP about the functional impact of his or her conditions, to a job capacity assessor as part of a JCA or ESA process or to an ARO.
Table 2 provides that a five-point rating should be assigned to a person with impairment to their upper limbs if they have a mild functional impact. The descriptors for this rating are set out below:
There is a mild functional impact on activities using upper limbs.
(1) The person can manage most daily activities requiring the use of the hands and arms, but had some difficulty with most of the following:
a.    Picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
b.    Handling very small objects (e.g. coins);
c.    Doing up buttons;
d.    Reaching up or out to pick up objects.
The Tribunal finds that during the Qualification Period, Mr McLarty was unable to reach up to pick up an object using his arms due to the permanent condition affecting both of his shoulders. On the basis of this finding, the Tribunal concludes that Mr McLarty meets at least the descriptor referred to in (1)(d) and for this reason the Tribunal is satisfied that Mr McLarty had, at least, a mild functional impairment to his lower limbs under Table 3.
The next step for the Tribunal is to consider whether Mr McLarty met the descriptors set out in Table 2 as at the Qualification Period, that apply to a person with a moderate functional impact on activities using their upper limbs. Those descriptors are set out below:
There is a moderate functional impact on activities using upper limbs.
(1) The person has difficulty with most of the following:
a.    Picking up a 1 litre carton full of liquid;
b.    Picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
c.    Holding and using a pen and pencil;
d.    Doing up buttons or tying shoelaces;
e.    Using a standard computer keyboard;
f.   Unscrewing a lid of a soft-drink bottle.
There was no evidence before the Tribunal that Mr McLarty had ever reported to his treating health practitioners or to any JCA, ESA assessor or an ARO during or before the Qualification Period that he had difficulties undertaking the tasks referred to in each of those descriptors. Mr McLarty self-reported a continuing ability to attend to most activities of daily living and to attend to his self-care, save for having some difficulty when washing his hair because it was an above-shoulder level activity. The Tribunal is satisfied on the balance of probabilities that Mr McLarty did not have difficulty, as at the Qualification Period, undertaking any of the activities referred to in descriptors (1)(a) to (f) inclusive, by reason of the impacts of his bilateral shoulder rotator cuff condition.
On the basis of the above, the Tribunal is not satisfied that Mr McLarty’s shoulder condition had a moderate functional impact on activities involving his upper limbs. Instead, the Tribunal concludes that Mr McLarty’s shoulder condition only had a mild functional impact on activities involving his upper limbs and assigns an impairment rating of five points under Table 2.
Mental health conditions – Table 5
Table 5 of the Impairment Tables addresses mental health function. In the Introduction to Table 5, there is a requirement that the mental health condition must be diagnosed by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis is not made by a psychiatrist). The Tribunal considers that a clinical neuropsychologist has an equivalent status to that of a clinical psychologist and that a diagnosis by a clinical neuropsychologist is sufficient to meet this requirement.
On the balance of probabilities, the Tribunal considers that as at the Qualification Period, Mr McLarty was suffering from the condition of “depression and anxiety” and an “adjustment disorder”. This finding is based on the evidence of Dr Fields (see paragraphs [67] to [73] above), who was treating Mr McLarty before, during and after the Qualification Period.
A key issue in dispute between the parties in this application is whether Mr McLarty’s mental health conditions were fully stabilised and treated as at the Qualification Period. This is a difficult assessment to make in relation to a mental health condition such as depression and anxiety and an adjustment disorder, as these conditions are inherently unstable and prone to episodic fluctuations. This is reflected by a requirement set out in the Introduction to Table 5 as follows:
- The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of assessment should not solely be relied upon.
- For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The Tribunal has taken into account the considerations referred to in subsections 6(5) and 6(6) of the Determination in deciding whether Mr McLarty’s mental health conditions were fully treated and fully stabilised (respectively) as at the Qualification Period.
Before the end of the Qualification Period, Mr McLarty had undertaken the following treatment for his mental health conditions:
(a)in May 2014 Dr Turnbill first prescribed him with anti-depressant medication – see paragraph [48];
(b)in August 2014 Dr Turnbill referred him to a clinical psychologist (Ms Sandilands) for counselling and he had 13 sessions with her between August 2014 and late-November 2014 – see paragraphs [62] and [66]. In these counselling sessions, Ms Sandilands said she used both “behavioural activation” and “cognitive restructuring” techniques;
(c)in late-August 2016 Dr Turnbill referred Mr McLarty to a clinical neuropsychologist (Dr Fields) for the treatment of his depression – see paragraph [67]. Dr Fields provided him with regular psychological therapy from August 2016 to January 2017 – see paragraph [72]. Mr McLarty had well in excess of ten sessions with Dr Fields during this period (i.e. by November 2016, a letter from Dr Fields at this time confirmed that he had attended ten sessions with her – see paragraph [70] and after this time there were further references made by Dr Fields that he continued to attend sessions with her); and
(d)from May 2014 to the end of the Qualification Period, Mr McLarty had trialled a number of anti-depressant medications in varying doses under the management of his treating general practitioner with advice from the treating clinical psychologists.
After the end of the Qualification Period, Mr McLarty resumed sessions with Dr Fields on 19 July 2018 and he also commenced seeing a consultant psychiatrist, Dr Eimany, in February 2019.
As set out in paragraph [113], it appears on the face of it that Mr McLarty has received a fair degree of treatment in the form of anti-depressant medication and psychological counselling. The letters of Dr Sandilands and Dr Fields revealed that Mr McLarty initially benefited from and gained some improvement from receiving psychological counselling from each of them. In Dr Sandilands’ case, she raised some concerns about Mr McLarty’s progress in her later sessions with him and then, Mr McLarty ceased having any psychological counselling for the following (almost) two years.
Therapy resumed with a different psychologist, Dr Fields, in the second half of 2016 and again, Mr McLarty’s level of engagement and progress was positive in the beginning. However, subsequently, i.e. from November 2016 onwards, Mr McLarty’s progress became blocked again or he became “stuck” (as Dr Fields put it), as a consequence of his angst over the decisions that had been made to reject his claim for DSP. Dr Fields reported in November 2016 that Mr McLarty remained “very concrete in his thinking style” and that he was “highly resistant to any cognitive therapy” that attempted “to challenge his belief that he had been mistreated”. She recommended that Dr Turnbill consider prescribing some sedative or other anti-depressant medication to Mr McLarty and again in March 2017, Dr Fields recommended that a medication review might be beneficial. In March 2017, Dr Fields confirmed that Mr McLarty had decided to discontinue counselling with her. She indicated that Mr McLarty could benefit from further psychological therapy sessions, but once he had moved on from his need for retribution (i.e. when he had commenced receiving the aged pension). Dr Fields offered to see him again when he had reached this point.
Dr Turnbill made a subsequent referral for Mr McLarty to resume seeing Dr Fields; although it was not until 19 July 2018 (i.e. 11 months after the Qualification Period had elapsed). Mr McLarty did not see a psychiatrist for his mental health conditions until 27 February 2019 (i.e. 18 months after the end of the Qualification Period).
The matters set out in the above paragraphs satisfy the Tribunal that as at the end of the Qualification Period, Mr McLarty had not been open to receiving the intended benefit of the psychological therapy that was provided to him in early 2014 and subsequently, from 2016 onwards. He discontinued his treatment with Dr Fields and was not receiving any psychological therapeutic support from March 2017 until the end of the Qualification Period, at a time when his mental health was in decline and when he most needed that support and continuing therapeutic treatment.
The Tribunal finds that Dr Fields had problems delivering effective cognitive behavioural therapy during her sessions with Mr McLarty before the Qualification Period because Mr McLarty was not open to receiving the benefit of such treatment due to his continued focus and personal angst about his DSP having been rejected. The Tribunal notes that at a time when Mr McLarty was more cooperative and open to therapy in the earlier years, the letters of Dr Sandilands and Dr Fields indicated that there were signs of improvement in Mr McLarty’s mental health. This is evident from Mr McLarty’s increased participation at those times as a volunteer horse trainer, and also by statements made by him to Dr Fields that he did not feel as agitated as he had previously. However, the Tribunal finds that when being treated by Dr Fields by early 2017, Mc McLarty had become increasingly uncooperative to the treatment being delivered and/or offered to him due to his fixation on the status of his DSP claims.
For this reason, the Tribunal is not satisfied that as at the end of the Qualification Period Mr McLarty had undertaken reasonable treatment for his mental health conditions. This finding is made because although extensive treatment was made available to Mr McLarty from 2014 until late-2017, he did not provide his full cooperation with his treaters and beyond a short initial period of treatment, he was not open to receiving the benefit of the clinical techniques being used by his treating psychologists. The Tribunal is satisfied that had Mr McLarty done so on a sustained basis, the psychological counselling was reliably expected to have resulted in a substantial improvement to Mr McLarty’s mental health, as had been demonstrated previously when he first commenced treatment with both Ms Sandilands and Ms Fields at a time when he was cooperative.
Accordingly, the Tribunal concludes that as at the Qualification Period, Mr McLarty’s conditions of “depression and anxiety” and “adjustment disorder” were not fully treated or fully stabilised and therefore, were not “permanent” as defined in the Determination. For this reason, the conditions of “depression and anxiety” and “adjustment disorder” cannot be assigned an impairment rating under Table 1 of the Impairment Tables.
OSA and RLS
The Tribunal is satisfied on the basis of the evidence set out in paragraph [51] that Mr McLarty was fully diagnosed as suffering from OSA as at the Qualification Period. The Tribunal is also satisfied on the basis of the evidence set out in paragraph [53] that Mr McLarty’s condition of RLS was fully diagnosed as at the Qualification Period. Those conditions affected Mr McLarty’s ability to sleep causing him fatigue during the day.
These conditions were diagnosed in 2014, i.e. three years prior to the Qualification Period. Since that time Mr McLarty had received treatment including the acquisition and continued use of a CPAP machine (for the OSA) and the prescription of a range of different medications (for both the OSA and RLS), following a long process of trialling whether certain medications were effective or not, or whether they caused side effects which made them unsuitable for use by him.
The Tribunal notes that in May 2017, Dr Mulder opined in a letter to Dr Turnbill that Mr McLarty’s condition of OSA was “under excellent control”. Dr Turnbill’s clinical notes reported that Mr McLarty’s ability to sleep was a fluctuating condition and was reported as sometimes good and at other times, poor.
The Tribunal considers that as at the Qualification Period, Mr McLarty had not undertaken all reasonable treatment for this condition that had been recommended to him by his treating respiratory and sleep physician. The Tribunal finds that Mr McLarty had completed some of the recommended treatment in terms of acquiring and using a CPAP machine and through trial and error under the advisement of his physicians, had identified and taken a combination of medications that worked for him. However, it is not evident to the Tribunal that Mr McLarty had undertaken (on any sustained basis), an appropriate weight-loss program to focus on reducing his weight, as had been formally recommended to him by Dr Mulder in the diagnostic report issued after being first diagnosed with the condition of OSA in 2014 – see paragraph [51].

The medical records provided by Dr Turnbill included various weight and other measurements taken of Mr McLarty between 2008 and August 2018. Those weight observations showed a trend of Mr McLarty gradually losing some weight between September 2014 and August 2015. He then increased his weight again and it was recorded as being over 120 kilograms in 2017 and 2018. There was a lack of evidence that Mr McLarty had embarked upon and persisted with a weight-loss program (by pursuing a low-calorie diet and exercise program for any reasonable period of time) to endeavour to reduce his weight.
The Tribunal acknowledges that it is possible that non-compliance with those recommendations was a manifestation of his declining mental health condition from about November 2016 until the end of the Qualification Period. Initially, as detailed above in late-2014 and 2015, Mr McLarty had successfully managed to reduce his weight indicating that it was possible for him to achieve this to some degree. However, as Mr McLarty’s mental health declined, he became extremely inactive; stayed in his room for most of the time; watched television for many hours every day; did very little housework; discontinued his exercise program and was not on any low-calorie diet. The Tribunal considers that had Mr McLarty been open to receiving the benefit of the psychological counselling delivered (and later offered) to him, and as a consequence his mental health conditions improved, it could be expected that he would be able to constructively embark upon and sustain an appropriate weight loss program as had been recommended to him for his condition of OSA.
In summary, there is insufficient evidence for the Tribunal to be satisfied that all reasonable strategies had been employed by Mr McLarty between 2014 and before the end of the Qualification Period, to seek to reduce his weight as recommended by Dr Mulder to treat his OSA. The Tribunal is satisfied that if Mr McLarty focused on reducing his weight, it was reliably expected to result in a substantial improvement of his OSA condition. For this reason, the Tribunal finds that Mr McLarty has not undertaken reasonable treatment as at the Qualification Period for his condition of OSA.
Accordingly, the Tribunal concludes that Mr McLarty’s condition of OSA was not fully treated or fully stabilised as at the Qualification Period and is not a “permanent” condition as defined in the Determination. For this reason, any impairment resulting from it cannot be assigned an impairment rating under Table1 of the Impairment Tables.
The evidence revealed that Mr McLarty’s condition of RLS fluctuated from time to time. This condition improved at certain times (for instance, as reported by Dr Mulder in July 2016) and at other times, it deteriorated and became a problem for him (as referred to by Dr Mulder in May 2017 and subsequently, by Dr Turnbill in his clinical note on 15 June 2017). The medical evidence suggested that different medications had been trialed to identify optimal medications for Mr McLarty in relation to his RLS, and it was found (by July 2016) that Targin provided the greatest relief. His RLS was reported at that time by Dr Mulder as being stable on this medication – see paragraph [59]. Aside from this, there was no other recommended treatment for Mr McLarty’s condition of RLS.
Accordingly, the Tribunal is satisfied that by the end of the Qualification Period, Mr McLarty’s condition of RLS was fully treated and stabilised and therefore, “permanent” as defined in the Determination. This condition was one of a number of conditions that was making it difficult for Mr McLarty to sleep during the night, resulting in him feeling fatigued during the day.
The Tribunal must now consider what degree of impairment to Mr McLarty’s activities requiring physical exertion or stamina had resulted from the condition of RLS. The Tribunal considers that it is virtually impossible on the evidence presented to the Tribunal, to dissect the functional impact of the condition of RLS, as distinct from the functional impact of the conditions of OSA, Type II diabetes, male menopause (B12 deficiency) or morbid obesity, on Mr McLarty’s activities requiring physical exertion or stamina. For this reason and to provide the benefit of any doubt to Mr McLarty, the Tribunal will assess the functional impact of his RLS against his actual and full level of fatigue and exhaustion levels that he was experiencing as at the Qualification Period.
Based on this approach, the Tribunal will make an assessment based on the descriptors appearing in Table 1 of the Impairment Tables dealing with functions requiring physical exertion and stamina. The Introduction to Table 1 provides that self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment.
The Tribunal is satisfied that a zero-point rating under Table 1 did not apply to Mr McLarty because although there was evidence that he could undertake exercise for a duration of 30 minutes, he could not do so without difficulty. The descriptor for a zero-point rating is:
There is no functional impact of activities requiring physical exertion or stamina.
(1) The person:
a. Is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
b. Has no difficulty completing physically active tasks around their home and community.
This finding is based on:
(a)Mr McLarty’s evidence at the hearing that he would “feel like a washed out rag” when exercising for 30 to 60 minutes every second day – see paragraph [29];
(b)as corroborated by Dr Turnbill’s evidence at the hearing that Mr McLarty experienced “fatigue issues” – see paragraph [46]; and
(c)Mr McLarty’s evidence given at a previous AAT1 hearing that he could use a bike for 40 to 60 minutes five days a week and walk 500m but would be “out of breath and sweaty” when doing so – see paragraph [93(a)].
The Tribunal will now consider whether the five-point rating under Table1 should be assigned to Mr McLarty in respect of the impairment arising from his RLS.   The descriptor for a five-point rating is set out below:
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
a.    Experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
i.Walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
ii.Performing physically active tasks (e.g. climbing a flight of starts or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
b.    Is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
Based on the evidence referred to in paragraph [135], the Tribunal finds that as at the Qualification Period, Mr McLarty met the descriptor in (1)(a) for a five-point rating.
The Tribunal also finds that Mr McLarty was able to perform most work-related tasks, other than tasks involving heavy manual labour, despite his levels of fatigue and exhaustion and therefore, met the descriptor in (1)(b) for a five-point rating. At times when there were not mental health issues impacting upon him, he was able to volunteer and train horses which involved walking, washing and attending to the horses. Mr McLarty was also able to attend the shops each week for the purpose of putting on his lotto. He was not hindered in that activity. The Tribunal expects that if Mr McLarty’s fatigue and exhaustion levels were anything other than mild that Dr Turnbill would have been reluctant to certify him as being fit to drive as he had done. The Tribunal accepts that he would not be able to do heavy manual labour but given that he was physically able to train horses at times and given that from a psychological point of view he was able to complete some further courses up to a diploma level, he was able to perform most work-related tasks of a sedentary nature.
Accordingly, the Tribunal concludes that Mr McLarty had, at least, a mild functional impact on activities requiring physical exertion or stamina.
The Tribunal will now consider if the descriptors for a 10-point rating of Table 1 apply to Mr McLarty. Those descriptors are set out below:
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
a. Experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
i.Is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
ii.Has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
b. Is able to:
i.Use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
ii.Perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks no requiring a high level of physical exertion).
The Tribunal finds that as at that Qualification Period, Mr McLarty met the descriptor in paragraph (1)(b)(i) in that he was able to use public transport (despite the fact that he had no need to, as he owned and used his own car) and he was also able to walk around a shopping centre or supermarket. By Mr McLarty’s own evidence, he said he was able to walk 500m and that he attended the shops independently once a week to put on his lotto and to buy a newspaper.
The Tribunal also finds that as at the Qualification Period, Mr McLarty met the descriptor in paragraph (1)(b)(ii) based on the evidence referred to in paragraph [138] .
However, the Tribunal was not satisfied that there was sufficient corroborating evidence that Mr McLarty experienced frequent symptoms (such as fatigue or shortness of breath) when performing day to day activities around the home and community. Mr McLarty predominately remained in his room for most of the time and watched television. However, the Tribunal considers that this was as a result of the impact of his mental health condition on him, in conjunction with his preferences to do so, rather than as a result of him being too fatigued or exhausted to perform day to day activities around the home and community. For instance, as set out in paragraph [32] Mr McLarty said he was capable of doing his own laundry but he said, “whether he did it or not was another issue”. The Tribunal finds that Mr McIarty was not unable to walk “far outside the home” by reason of any symptoms of fatigue because by his own evidence, Mr McLarty was able to walk for a distance of 500m. The Tribunal considers this distance is sufficient to allow him to walk “far outside the home”.
For these reasons, the Tribunal is not satisfied that Mr McLarty met the descriptor for a 10-point rating under Table 1 as at the Qualification Period. Instead, the Tribunal concludes that there was a mild functional impact on activities requiring physical exertion or stamina as a result of Mr McLarty’s condition of RLS and that a rating of five points should be assigned to Mr McLarty under Table 1.
CONCLUSION
In conclusion, the Tribunal has found that as at the Qualification Period, Mr McLarty had the following conditions that were “permanent” as defined in the Determination and likely to persist for longer than two years:
“bilateral shoulder rotator cuff injury” to which the Tribunal has assigned five points under Table 2 for impairment to Mr McLarty’s activities involving his upper limbs; and
“restless leg syndrome” to which the Tribunal has assigned five points under Table 1 for impairment to Mr McLarty’s function involving physical exertion or stamina.
Mr McLarty contends that he should also be assessed on the basis of the further medical conditions of OSA (causing hyper somnolence) and his mental health conditions. The Tribunal has concluded that Mr McLarty was fully diagnosed as at the Qualification Period with the conditions of “OSA”, “depression and anxiety” and “adjustment disorder”; However, the Tribunal is not satisfied that those conditions were fully treated and fully stabilised, for the reasons set out in these Reasons for Decision, and therefore cannot be assigned a rating under the Impairment Tables.
The Tribunal concludes that as at the Qualification Period Mr McLarty did not meet the eligibility requirement under s 94(1)(b) of the Act because his “permanent” conditions of bilateral shoulder rotator cuff tears and RSL did not attract a total impairment rating of 20 points or more under Tables 2 and 1 respectively (i.e. Mr McLarty’s total impairment rating was 10 points).
As the Tribunal has concluded that Mr McLarty did not meet the eligibility requirement under s 94(1)(b), the Tribunal is not required to consider whether he met the other mandatory eligibility requirements under the Act as at the Qualification Period, including whether he had a “continuing inability to work”.
Accordingly, the Tribunal affirms the decision of the AAT1. This means that Mr McLarty is not eligible to receive the DSP as from the date of his claim on 10 May 2017.

I certify that the preceding 149 (one hundred and forty nine) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

......................[sgd].............................................
Associate
Dated: 1 November 2019

Date of hearing:

18 December 2018, 29 January 2019 and 12 June 2019

Representative for the Applicant:

Self-represented

Representative for the Respondent:
Mr Ailsa Bramley, Senior Government
Lawyer

FOI and Litigation Branch

Department of Human Services

[2019] AATA 4426

1 November 2019

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