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

[2020] AATA 3746

Mohammad and Secretary, Department of Social Services (Social services second review) [2020] AATA 3746 (2 September 2020)

Division:GENERAL DIVISION

File Number:2019/2931          

Re: Farhad Mohammad

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member R West 

Date:2 September 2020  

Place:Melbourne

The Tribunal affirms the decision under review.

.................[sgd].......................................................
Member R West

Catchwords

SOCIAL SECURITY – disability support pension – mental health condition, major depressive disorder, generalised anxiety disorder and agoraphobia with panic attacks – spinal condition - asthma – whether conditions fully diagnosed, treated and stabilised in the qualification period –  whether impairments attract rating of 20 points or more under impairment tables - decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Covenden and Secretary, Department of Social Services [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

REASONS FOR DECISION

Member R West

2 September 2020

1. This matter concerns a review of the decision of the Administrative Appeals Tribunal (Social Services and Child Support Division) dated 1 May 2019 affirming the decision of the Respondent to refuse the Applicant’s claim for the Disability Support Pension (DSP).

2. The relevant history of the matter is as follows:

   ·The Applicant made his original application for DSP on 14 August 2018.

   ·The Respondent had the application assessed by a job capacity assessor and a contracted general practitioner and refused the application on 8 January 2019.

   ·An authorised review officer (ARO) affirmed this decision on 31 January 2019 (ARO Decision).

   ·A review of the ARO Decision was conducted by the Administrative Appeals Tribunal (Social Services and Child Support Division) (First Tier Review) and a decision affirming the ARO Decision was handed down on 1 May 2019.

   ·The Applicant applied for a Second Tier Review on 27 May 2019.

3. A hearing in relation to the Second Tier Review was held by telephone on 30 June 2020.  The Applicant was assisted in the presentation of his case by his friend and carer,

   
   

   Ms Lorettea Cacciattolo.  The Respondent was represented by Ms Cailin Farrell, a solicitor with Sparke Helmore Lawyers.  The Applicant gave his evidence principally in English but had the assistance of a Kurdish interpreter as required.

4. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic.  These restrictions necessitated that the hearing either not be conducted in person or be deferred until after the restrictions were lifted.  The Applicant and the Respondent each consented to the hearing proceeding on 30 June 2020 on the basis that it was conducted by telephone.

   LEGISLATION

5. The Tribunal has had regard to the following relevant legislation in making its decision:

   ·Social Security Act 1991 (the Act);

   ·Social Security (Administration) Act 1999 (the Administration Act);

   ·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) (the Rules): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;

   ·Social Security (Active Participation for Disability Support Pension) Determination 2014; and

   ·Administrative Appeals Tribunal Act 1975 (AAT Act).

   QUALIFICATION PERIOD

6. A decision in relation to the granting of DSP must be made having regard to the Applicant’s condition in the period commencing on the day the application is lodged with the Respondent and the 13 weeks thereafter.  This is called the qualification period.[1]

   [1] See ss 37 and 42 and cls 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999.

7. In this case the qualification period commenced on 14 August 2018 and ended on

   
   

   13 November 2018.

8. In assessing whether a condition has stabilised and is likely to persist for the future, the Tribunal must look at the situation during the qualification period, having regard to the evidence.  Evidence of the Applicant’s condition subsequent to the qualification period is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the Applicant’s condition during the qualification period.[2]

   [2] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 992 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 at [33]; and Covenden and Secretary, Department of Social Services [2018] AATA 353 at [7].

   DSP QUALIFICATION

9. To qualify for a DSP an applicant must satisfy the requirements set out in s 94(1) of the Act as assessed during the qualification period.

10. In essence, s 94(1) of the Act requires that:

    ·the Applicant has a physical, intellectual or psychiatric impairment; and

    ·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and

    ·the Applicant has a severe impairment (an impairment rating of at least 20 points on a single Impairment Table); or the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and

    ·the Applicant has a continuing inability to work; or the Secretary is satisfied that the Applicant is participating in the supported wage system.

11. Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has a severe impairment or has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.

12. Section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 provides that a person has actively participated in a program of support if they have participated in a program for at least 18 months in the three years immediately prior to the date of claim.

    CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS

13. In conducting the Second Tier Review the Tribunal has had regard to:

    (a)the documents produced by the Respondent pursuant to s 37 and s 38AA of the AAT Act (T Documents and Supplementary T Documents);

    (b)the oral evidence of the Applicant;

    (c)the following documents filed by the Applicant:

    (i)medical report of Dr Charan Koghar, dated 16 August 2019;

    (ii)medical report of Dr Debra Chong, dated 29 September 2019;

    (iii)medical report of Dr Charan Koghar, dated 31 January 2020; and

    (iv)medical report of Dr Dimuthu Chamara Hettiarachchi, dated 29 January 2019.

14. The Applicant’s initial application for the DSP[3] referred to several conditions, but the Applicant confirmed at the outset of the hearing that his claim on review related to the following conditions:

    a mental health condition, being a major depressive disorder, generalised anxiety disorder and agoraphobia with panic attacks;

    (b)a spinal condition; and

    (c)asthma.

    [3] T42 at p 126.

15. The Respondent accepts that the Applicant had impairments during the qualification period and that he satisfied s 94(1)(a) of the Act. The immediate question for the Tribunal is whether the Applicant satisfies s 94(1)(b) in that his impairments attract 20 or more rating points under the Impairment Tables.

    Mental Health Condition

16. The Respondent accepts that the Applicant’s mental health condition was fully diagnosed, fully stabilised and fully treated as at the qualification period, and contended that it would attract a functional impairment rating of five points under Table 5 of the Impairment Tables. 

17. Dr Koghar, the Applicant’s treating doctor, reported in July 2017[4] that the Applicant had been receiving psychological care and medications intermittently in the last 3 years, and opined that his prognosis remains uncertain as he has not made significant improvements.

    [4] T21 at p 59.

18. The Applicant was diagnosed with a major depressive disorder, generalised anxiety disorder and agoraphobia with panic attacks by Dr Dimuthu Chamara Hettiarachchi, a psychiatrist in April 2018.  Dr Hettiarachchi’s report[5]  noted that the Applicant’s condition had been present for two years and resulted from a motor vehicle accident in 2016. Dr Hettiarachchi recommended a management plan for the Applicant involving maximising his dose of Escitalopram to 40 mg and adding Mirtazapine initially at 15 mg increasing to 30 mg.  He recommended monitoring of the effect of the two antidepressants and adjustment to dosages depending on the Applicant’s response.  Dr Hettiarachchi also suggested that the Applicant see a psychologist to address his panic attacks and agoraphobia.

    [5] T34 at p 84.

19. Dr Hettiarachchi’s report of 10 April 2018[6] confirmed that the Applicant had had optimum trials of treatment with limited effect and that his illness is stabilised and treated.

    [6] T33 at p 83.

20. Reports of the Applicant’s mental health counsellor[7] in April 2018, the Government Contracted Doctor (GCD)[8] in December 2018 and Dr Koghar of 16 August 2019 confirmed that the Applicant had received ongoing treatment but marked improvement in his condition was not expected.  This was also confirmed in the report of Dr Hettiarachchi in January 2019.[9]

    [7] T35 at p 87.

    [8] Government contracted doctor Disability Medical Assessment dated 20 December 2018 – T45.

    [9] T50 at p 159

21. On the basis of this medical evidence the Tribunal is satisfied that the Applicant’s mental health condition, major depressive disorder, generalised anxiety disorder and agoraphobia with panic attacks, was fully diagnosed, fully treated and fully stabilised during the qualification period and was likely to persist for the next two years.

22. The appropriate table to assess the impairment resulting from the Applicant’s mental health condition is Table 5 – Mental Health.

23. To determine a rating under Table 5 the Tribunal is required to consider the following factors:

    (a) self care and independent living;

    (b) social/recreational activities and travel;

    (c) interpersonal relationships;

    (d) concentration and task completion;

    (e) behaviour, planning and decision-making;

    (f) work/training capacity.

    Applicant’s Evidence

24. The Applicant gave evidence as to the extent of his impairments resulting from the mental health condition.  He stated that he had suffered from the condition since 2016 when he was involved in a motor vehicle accident.  He said he had nightmares, heart palpitations, shivering and shaking.  He said that his symptoms had gotten worse since the qualification period.

25. The Applicant said that he owns his own home which he purchased prior to the accident when he was working.  He shares his house with a family he has known or five or six years.  He said they help to look after him and pay rent to assist him with the bills.  He said the family do all the shopping, cooking and cleaning and assist with washing his clothes.  He said that his friend, Ms Cacciattolo, drives him to appointments and assists him with organising his affairs such as setting up automatic bill paying and his phone plan. 

26. The Applicant said he spends most days in his bedroom as his medication makes him drowsy.  He listens to Kurdish music and watches movies on his mobile phone.  He said he rarely goes out.  He is fearful of driving himself and disposed of his own car about one year ago.  He does occasionally use public transport or catches a taxi to get to appointments if Ms Cacciattolo is unavailable.  He said during the qualification period he regularly contacted his mother by phone, but she passed away approximately six months ago.  He said he was able to shower and dress himself on some days but not others.

    Consideration of the Factors

27. The introduction to Table 5 makes it clear that the self-reporting of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment. Examples of corroborating evidence for the purposes of this table include, but are not limited to, the following:

    ·a report from the person’s treating doctor;

    ·supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;

    ·interviews with the person and those providing care or support to the person.

    What was the extent of the Applicant’s difficulty with self-care and independent living?

28. The Applicant’s evidence was that he was able to shower and dress himself on some days but not others.  Once set up with the assistance of his friend, the Applicant was able to pay his bills using automatic payments and access mobile phone services. He lived semi-autonomously but relied on the family who shared his house to do the shopping, cooking, cleaning and laundry.  The Applicant’s evidence regarding the support he receives from the family is corroborated in the Employment Services Assessment (ESA) report dated 24 April 2018[10] and in the report of Dr Debra Chong, psychiatrist, of 26 September 2019 who noted the comments of Ms Cacciattolo that the Applicant struggles with self-care.

    [10] T38.

29. Table 5 gives the following examples to illustrate the different levels:

    a.Severe: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

    b.Moderate: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

    c.Mild: The person lives independently but may sometimes neglect self-care, grooming or meals.

30. It is clear from the evidence that the Applicant receives regular support from the family with whom he lives, and on occasion from his friend Ms Cacciattolo.  However, the Tribunal notes that paragraph 6(1) of the Rules states that an impairment must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person. The evidence does not establish that the Applicant is incapable, because of his condition, from doing his own shopping, cooking, cleaning and laundry.  The medical evidence indicates that he lacks motivation but it does not establish that, in the absence of the family’s support, he would be incapable of performing those tasks for himself. 

31. Having considered all the evidence the Tribunal is satisfied that, because of the Applicant’s mental health condition, he needed some support to live independently indicating a moderate difficulty, but the Tribunal is not satisfied that the level of impairment had a severe functional impact during the qualification period.

    What was the extent of the Applicant’s difficulty with social/recreational activities and travel?

32. The Applicant said he spends most days in his bedroom and rarely leaves his house.  He said he is fearful of driving himself and relies on Ms Cacciattolo to drive him to appointments, but he occasionally uses public transport or catches a taxi to get to appointments if Ms Cacciattolo is unavailable. This evidence was consistent with what was reported in the ESA report of 24 April 2018. Dr Hettiarachchi, psychiatrist, noted in his report of 15 April 2018[11] that:

    He has a prominent negative cognitions such as feeling helpless, hopeless, in despair. He is anxious about his future. He reports he finds it difficult to trust others and does not feel like going out of home, fear of leaving home, driving, has experienced panic attacks when he is out of home. He has had fleeting suicidal thoughts but denied current intent or plan. Judgement is reasonable. He has insight into his symptoms.

    [11] T34 at p 84.

33. Table 5 gives the following examples to illustrate the different levels:

    a.Severe: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

    b.Moderate: Example 1: The person goes out alone infrequently and is not actively involved in social events. Example 2: The person will often refuse to travel alone to unfamiliar environments.

    c.Mild: Example 1: The person is not actively involved when attending social or recreational activities. Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

34. On the basis of this evidence the Tribunal is satisfied that the Applicant has moderate difficulty with social/recreational activities and travel.  He best fits the example of a person who goes out alone infrequently and is not involved in social events.

    What was the extent of the Applicant’s difficulty with interpersonal relationships?

35. The Applicant’s evidence was that he had a small range of interpersonal contacts, but he had maintained a lasting friendship with Ms Cacciattolo and the family with whom he shared his house.  In addition, during the qualification period he had regular contact with his mother, albeit by telephone. 

36. Table 5 gives the following examples to illustrate the different levels:

    a.Severe: Example 1: The person has very limited social contacts and involvement unless these are organised for the person. Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

    b.Moderate: The person has difficulty making and keeping friends or sustaining relationships.

    c.Mild: The person has interpersonal relationships that are strained with occasional tension or arguments.

37. There is no evidence that the Applicant has had strained relationships. The evidence shows that he has maintained close relationships with Ms Cacciattolo and the family with whom he lives over a period of several years. There is no evidence that he needed assistance or support from a companion to engage in social interaction. On this basis the Tribunal is not satisfied that the Applicant’s mental condition resulted in any appreciable difficulty with interpersonal relationships and this factor does not indicate any functional impact.

    What was the extent of the Applicant’s difficulty with concentration and task completion?

38. The Applicant did not indicate in his evidence that he had any particular problem with concentration or task completion.  He said that his medication caused him to be drowsy and to lack energy, but he acknowledged that he regularly listened to music and watched movies on his mobile phone.  Dr Koghar reported in June 2017[12] that the Applicant had complained of poor short-term memory and poor concentration and Dr Hettiarachchi noted similarly in his report of 15 April 2018[13] that the Applicant complained of poor concentration.  However, this was not assessed objectively.

    [12] T20 at p 56.

    [13] T34 at p 84.

39. The ESA report of 24 April 2018[14] stated that the Applicant:

    …presented with good concentration and comprehension during the duration of the interview (approximately 45 minutes) for JCA (job capacity assessment on 19/7/2017). He also presented with good concentration and comprehension during the duration of the current interview (30 minutes).

    [14] T38 at p 90.

40. At the hearing the Applicant was lucid, engaged and patient in giving his evidence and, over a period of around two hours, showed that he understood the issues and was engaged with the process.

1. Table 5 gives the following examples to illustrate the different levels:

   a.Severe: Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes. Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

   b.Moderate: Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book). Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

   c.Mild: Example 1: The person has difficulty focusing on complex tasks for more than 1 hour. Example 2: The person has some difficulties completing education or training.

2. Having observed the Applicant at the hearing and considered the evidence as a whole, the Tribunal is not satisfied that the Applicant had any appreciable difficulty with concentration and task completion and this factor does not indicate any functional impact.

   What was the extent of the Applicant’s difficulty with behaviour, planning and decision-making?

3. The Applicant did not demonstrate in his appearance before the Tribunal that he had any appreciable difficulty with his behaviour, planning or decision making.  In giving his evidence he gave considered and honest answers.  His conduct throughout was respectful, measured and composed.  His evidence indicated a measure of forethought and planning in the structure of his life.  He had managed to keep up his mortgage payments by renting out part of his house to a family who were able to provide material support to him as well as ease his financial position.  He had worked cooperatively with Ms Cacciattolo to set up a sustainable system for paying his bills and accessing mobile phone services.  He attended medical appointments as required and he insisted that he was diligent in taking his prescribed medication.

4. The various medical reports identify symptoms of the Applicant’s mental health condition including his reluctance to leave his house due to anxiety, lack of motivation and that he had difficulty coping with stress.  Otherwise they do not report that the Applicant’s behaviour, thoughts and conversation were significantly and frequently disturbed and there is no indication that the Applicant had behavioural problems such as temper outbursts.  The reports do not specifically refer to any difficulty with planning or decision-making.  The EAS reports[15] indicate that the Applicant did not present with behavioural problems or that he was inhibited in his planning and decision-making. Dr Hettiarachchi noted in his report of 15 April 2018[16] that the Applicant’s judgement is reasonable. Dr Chong described him in her report of 29 September 2019 as polite and co-operative with no psychomotor disturbance.

   [15] T38.

   [16] T34 at p 85.

5. Table 5 gives the following examples to illustrate the different levels:

   a.Severe: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

   b.Moderate: Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands. Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement). Example 3: The person’s activity levels are noticeably increased or reduced.

   c.Mild: Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation. Example 2: The person has slight difficulties in planning and organising more complex activities.

6. Having regard to these matters the Tribunal is satisfied that the Applicant had moderate difficulties with behaviour, planning or decision-making.

   What was the extent of the Applicant’s difficulty with work/training capacity?

7. The Applicant was not involved in a work or training activity during the qualification period and so there is no direct evidence that he was involved in interpersonal conflicts at work, education or training that required intervention by supervisors, managers or teachers or changes in placement or groupings.  There is no evidence in the medical reports that the Applicant could be expected to demonstrate such behaviour.  The medical opinion is consistent, however, that the Applicant would not be fit to undertake work or training because of the symptoms of his mental health condition.  Dr Hettiarachchi concluded in his report of 15 April 2018 that In my opinion, he is not able to consider work at this stage given the severity of the symptoms and impact. Dr Chong concluded in her report of 29 September 2019 that it does seem that (the Applicant) is unable to participate in employment due to the level of his psychiatric symptoms and significant degree of impairment.

8. Table 5 gives the following examples to illustrate the different levels:

   a.Severe: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

   b.Moderate: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

   c.Mild: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.

9. On the basis of the medical evidence the Tribunal is satisfied that the Applicant would be unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.  He therefore had a severe difficulty with work/training capacity.

   Conclusion – Mental Health Function

10. Under Table 5 a condition has a severe, moderate, mild or nil functional impact on activities involving the mental health function depending on whether most of the factors set out in the relevant part of the table are satisfied.  For the reasons stated, the Tribunal is satisfied that the Applicant’s condition satisfies two of the six factors for a severe functional impact and therefore it cannot be given a rating of 20 points.  The condition does, however, meet or exceed the requirement for a moderate functional impairment in relation to four of the six factors and accordingly the Tribunal assigns a rating of 10 points to the Applicant’s mental health condition under Table 5 of the Impairment Tables.

    Spinal Condition

11. The Respondent accepts that the Applicant’s spinal condition was fully diagnosed, fully stabilised and fully treated as at the qualification period, and contends that it would attract a functional impairment rating of nil points under Table 4 of the Impairment Tables. 

12. The Applicant had several scans of his thoracic and lumbar spine in the years 2015 and 2016.  A radiologist’s report of 24 June 2015[17] noted from an x-ray that there was scoliosis of the thoracic spine convex to the right, no focal vertebral of other osseous abnormality with normal bone and joint alignment and well preserved intervertebral disc height. CT scans taken in August 2016 noted broad based posterior annular L4/5 bulge and mild central L5/S1 disc bulge without nerve root compression at the lumbar levels[18] and possible Scheurmann’s disease at the lower thoracic level[19].

    [17] T7 at p 34.

    [18] T11 at p 42.

    [19] T12 at p 43.

13. The Applicant’s treating doctor, Dr Christine To, reported in May 2016[20] that she had seen the Applicant multiple times regarding his chronic back pain and that he was managing his symptoms with analgesia and massage/exercise. In a patient management plan prepared by the Applicant’s treating doctor, Dr Koghar, in July 2017,[21] it was noted that the Applicant suffered chronic back pain and scoliosis for which he was prescribed Panadeine Forte.

    [20] T10 at p 41.

    [21] T23 at p 62.

14. The medical evidence shows that the Applicant attended for physiotherapy treatment for his chronic lower back pain from July 2017 until at least May 2018.[22]

    [22] See T22, T36, T38 and T41.

15. A Job Capacity Assessment (JCA) Report in April 2018[23] noted that the Applicant had undertaken physiotherapy treatment in 2017 and 2018 and had been taking pain medication and exercising when able. However, a GCD report of 20 December 2018[24] opined that the Applicant’s back condition was not fully treated or stabilised.  The report states that there was a lack of medical evidence regarding treatment and functional impact.  It noted that Dr Koghar had not seen the Applicant about his back condition since 2016 and the Applicant had not been assessed by a specialist or referred for a pain management plan.  In contrast, an assessment by a Health Professional Advisory Unit (HPAU) conducted in June 2020, nearly two years after the qualification period, was that the Applicant’s spinal condition was fully treated and stabilised during the qualification period,[25] but warranted a nil rating under Table 4 of the Impairment Tables. 

    [23] T38 at p 92.

    [24] T45 at p 14.

    [25] The HPAU report incorrectly refers to the time of DSP cancellation in August 2018.

16. On the basis of the medical evidence, and notwithstanding the conclusions of the GCD, the Tribunal is satisfied that the Applicant’s chronic back pain was fully diagnosed in the qualification period and that he had undertaken reasonable treatment in the form of physiotherapy and pain medication and further treatment would be unlikely to result in a significant improvement to his functioning.  Accordingly, the Tribunal accepts that the condition was fully treated and fully stabilised during the qualification period and was likely to persist for another two years.

17. The appropriate Table to assess the impairment resulting from the Applicant’s spinal condition is Table 4 – Spinal Function.

18. The Applicant stated in his evidence that prior to 2016 when he worked as a kitchenhand he had difficulty standing and had to reduce his working days.  He said that during the qualification period he was unable to sit for more than 20 minutes and needed to change position constantly when he was sitting.  He said he experienced pain on and off and that the pain was eased with medication.  He said that some days he could walk short distances for 5 to 10 minutes but on others he could not.  He said that he could walk up stairs but not more than three levels.  He said he had a walking stick but did not use it often.  He said he could travel in a car to go shopping or to his appointments and could walk around the supermarket. He said he was able to stand up from a seated position by himself, but if the pain was severe he may need some support.  He said he could usually stand for up to 30 minutes but sometimes he was not able to do so.

19. The JCA report of 24 April 2018[26] noted Dr Koghar’s report that the Applicant’s thoracic back pain meant he was unable to carry out manual work. Dr Koghar described the Applicant’s symptoms as severe/shooting pain 2-3 times a week and stiffness with difficulty with getting out of bed. The JCA noted that the Applicant reported that he was able to drive and attend to household tasks prior to the car accident in 2016, however since then he avoids driving and is unable to attend to household tasks due low motivation and mental health. Recipient reported he is independent with self-care tasks. The JCA also observed that the Applicant did not get up from his chair during the duration of his interview (30 minutes), and noted that a previous JCA observed that the Applicant did not get up from his chair during the duration of the interview (approximately 45 minutes).

    [26] T38 at p 92.

20. The HPAU assessor noted in his June 2020 report[27] that he had spoken with Dr Koghar in relation to the Applicant’s back pain and Dr Koghar advised that:

    months can pass without patient complaint of back pain; he feels that there is an overlap between such symptoms and anxiety, and that potentially his patient’s back pain symptoms represent more of a somatic disorder related to anxiety. He considers that there is no significant related loss of function.

    [27] ST1 at p 10.

21. The First Tier Review decision notes that the Applicant gave evidence that his back pain only bothered him when he was involved in strenuous activity and that he was able to drive and had no difficulty managing the usual activities of daily living.

22. The conclusion of the HPAU assessment was that the Applicant’s spinal condition had no or minimal associated functional impact.[28]

    [28] ST1 at p 11.

23. Dr Koghar noted in his report of 16 August 2019 that the Applicant presented with back pain on multiple occasions between October 2013 and July 2017 but had not complained of back pain since. During that period the Applicant had presented with simple mechanical back pain with no symptoms of radiculopathy and underwent physiotherapy and took analgesia and tramadol intermittently.  Dr Koghar reported that the Applicant no longer takes prescribed analgesia.

24. Under Table 4, for a person to be assessed as having a mild functional impact, it requires that they have some difficulty in:

    a.    activities overhead height (e.g. activities requiring the person to look upwards); or

    b.    bending to knee level and straightening up again without difficulty; or

    c.     turning their trunk or moving their head (e.g. to look to the sides or upwards).

25. The Applicant gave no indication in his evidence that he experienced some difficulty with any of these actions and there is nothing in the medical evidence to indicate that he did. The medical assessments of the HPAU assessor, Dr Koghar and the JCA is that the Applicant did not have a functional impairment warranting a rating of five points or more under Table 4.

26. On this basis the Tribunal is satisfied that the Applicant’s spinal condition should be assessed at nil points under Table 4 of the Impairment Tables.

    Asthma

27. The Respondent accepts that the Applicant’s asthma was fully diagnosed, fully stabilised and fully treated as at the qualification period, and contended that it would attract a functional impairment rating of five points under Table 1 of the Impairment Tables.

28. In his report of 16 August 2019 Dr Koghar stated that he had seen the Applicant since 2013 for asthma and he had been on Ventolin and Turbutaline.  He noted that a lung function test was conducted in October 2017[29] which only revealed a mild restrictive defect with FEV of 71% and no bronchodilator response of more than 12%. Dr Koghar reported that the Applicant continues to use Seretide 250/25 mg twice a day indefinitely.

    [29] See T26.

29. The HPAU report of June 2020[30] accepts that the Applicant’s asthma was fully diagnosed and adequately treated with preventative and bronchodilator inhalers and occasionally with antibiotics for respiratory infections.

    [30] ST1.

30. On the basis of this evidence the Tribunal is satisfied that the Applicant’s asthma was fully diagnosed, fully treated and fully stabilised during the qualification period and likely to persist for the next two years.

31. The appropriate Table to assess the impairment resulting from the Applicant’s asthma condition is Table 1 – Functions Requiring Physical Exertion and Stamina.

32. Under Table 1 a condition has a mild functional impact on the activities of a person requiring exertion or stamina if 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 stairs 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).

33. In order to warrant a moderate functional impairment, the person must experience frequent symptoms when performing day to day activities and be unable to walk far outside the home or have difficulty performing day to day household activities.

34. The Applicant gave evidence that he experiences shortness of breath more quickly on exercise than previously. He said he used to play soccer when he was younger but now he could not do so because of shortness of breath.  He said he can walk to the shops or around the supermarket at a normal pace without experiencing shortness of breath, but he takes his puffer with him just in case. He said that his asthma does cause occasional breathing difficulty and impacts on his daily life, especially in winter when it is worse with the cold weather.

35. The JCA assessor recorded in their report of 28 July 2017 that the Applicant had confirmed to the assessor that his asthma condition was generally well managed with minimal impact on his day to day functioning.[31]  This is consistent with the report of Dr Koghar which noted that the lung function tests showed only a mild restrictive defect.

    [31] T24 at p 70.

36. The HPAU assessor concluded in his report of June 2020 that the available medical evidence indicates mild asthma with occasional exacerbations, well controlled mainly with inhaled medications.[32]

    [32] ST1 at p 10.

37. On the basis of this evidence the Tribunal is satisfied that there was a mild functional impairment resulting from the Applicant’s asthma condition during the qualification period warranting a rating of five points under Table 1 of the Impairment Tables.

    CONCLUSION

38. The Applicant has a combined impairment rating of 15 points under the Impairment Tables and therefore does not satisfy the requirement of s 94(1)(b) of the Act for an overall rating of at least 20 points.  The Applicant is therefore not eligible for the DSP.

39. In these circumstances it is unnecessary for the Tribunal to further consider the requirements of s 94(1) of the Act.

    DECISION

40. The Tribunal affirms the decision under review.

81.     I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Member R West

....................[sgd]..................................................

Associate

Dated: 2 September 2020

Dates of hearing:

30 June 2020

Advocate for the Applicant:

Advocate for the Respondent:

Ms Lorettea Cacciattolo

Ms Cailin Farrell

Solicitors for the Respondent:

Sparke Helmore Lawyers