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

Monger and Secretary, Department of Social Services (Social services second review) [2018] AATA 4356 (22 November 2018)
Division:GENERAL DIVISION
File Number: 2018/2028
Re:Lee Monger
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:22 November 2018
Place:Brisbane

The Tribunal affirms the decision under review.
...................................[sgd].....................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
22 November 2018

On 8 December 2016 Mr Monger applied for the Disability Support Pension (“DSP”) describing his medical conditions as “bilateral knee arthritis”, “lumbar degenerative disease” and “C6 osteophyte foraminal stenosis”.[1]
[1] Exhibit 1, T Documents, T 64, page 278, Mr Monger's Claim for DSP dated 8 December 2016.
Dr Jonathan Bailey, General Practitioner, provided a medical report to Centrelink in support of Mr Monger’s claim for DSP. Dr Bailey reported that:[2]
(a)Mr Monger had chronic back pain, previous L5/S1 discectomy, lumbar degenerative disease, degenerative neck pain and knee arthritis;
(b)Mr Monger’s conditions were very long standing of three years or more;
(c)Mr Monger’s conditions cause him daily back pain, neck pain and stiffness and limits his activities and ability to mobilise;
(d)Mr Monger has treated his conditions in the past with physiotherapy;
(e)there is no further treatment that can be provided in relation to Mr Monger’s back;
(f)Mr Monger is on a waiting list regarding his knees;
(g)the impact of the conditions on Mr Monger’s ability to function is expected to persist for more than 24 months and will remain unchanged within the next two years.
[2] Exhibit 1, T Documents, T 65, pages 283 – 290, Report of Dr Bailey dated 8 December 2016.
Dr Bailey also reported that Mr Monger has depression, secondary to his pain, and that:[3]
(a)Mr Monger had previously seen a psychologist and taken Zoloft;
(b)the future planned treatment was for him to continue psychology counselling;
(c)Mr Monger’s depression caused him to have poor motivation and energy; and
(d)Mr Monger’s depression was expected to persist for more than 24 months and its effect on his ability to function in the next two years was uncertain.
[3] Exhibit 1, T Documents, T 65, pages 283 – 290, Report of Dr Bailey dated 8 December 2016.
Following his DSP application Mr Monger was placed on the elective surgery waiting list for orthopaedic surgery.[4] On 4 January 2017 Mr Monger had a CT-guided epidural injection into his lumbar spine.[5]
[4] Exhibit 1, T Documents, T 66, page 291, Letter from Gold Coast University Hospital dated 21 December 2016.
[5] Exhibit 1, T Documents, T 67, page 292, Referral from Dr Bailey dated 4 January 2017.
On 31 March 2017 Dr Bailey referred Mr Monger for an x-ray of his right hand. Mr Monger had several fractures to his right hand in the past and was suffering from pain.[6]
[6] Exhibit 1, T Documents, T 69, page 294, Referral from Dr Bailey dated 31 March 2017.
On 21 April 2017 Ms Kim Wood, Clinical Psychologist, reported that:[7]
(a)Mr Monger met the criteria for “recurrent depressive disorder, current episode moderate without psychotic symptoms”;
(b)In her opinion Mr Monger had severe/extremely severe depression and required ongoing treatment;
(c)it is well-known that pain and depression are comorbid; and
(d)his physical health issues definitely impinge upon his mental state.
[7] Exhibit 1, T Documents, T 72, pages 298 – 299, Report of Ms Woods dated 21 April 2017.
In May 2017 an ultrasound of Mr Monger’s right elbow showed mild lateral epicondylitis.[8]
[8] Exhibit 1, T Documents, T 73, page 300, Ultrasound report dated 22 May 2017.
In June 2017 the Gold Coast University Hospital confirmed that Mr Monger’s orthopaedic surgery was due to take place on 9 August 2017.[9]
[9] Exhibit 1, T Documents, T 74, page 301, Letter from Gold Coast University Hospital dated 14 June 2017.
In June 2017 an outpatient appointment was made for Mr Monger at a pre-admissions knee education class to be led by a physiotherapist, an occupational therapist and a pain management notice to provide education and exercises for how best to prepare and recover from his knee surgery.[10]
[10] Exhibit 1, T Documents, T 75, page 302, Letter to Mr Monger from Queensland health dated 15 June 2017.
On 16 August 2017 Mr Monger had a bilateral total knee replacement.[11]
[11] Exhibit 1, T Documents, T 77, page 304, Queensland health discharge summary.
On 23 August 2017 Mr Monger presented to hospital with concerns regarding pain and swelling of his right knee. He was then diagnosed with haemarthrosis and swelling likely secondary to overexertion. Mr Monger was admitted as an inpatient for monitoring for infections and administering of analgesia and was discharged on 26 August 2017.[12]
[12] Exhibit 1, T Documents, T 78, pages 312 – 313, Queensland health discharge summary.
In October 2017 the Gold Coast University Hospital confirmed that Mr Monger’s orthopaedic surgery was due to take place on 25 October 2017.[13]
[13] Exhibit 1, T Documents, T 79, page 317, Letter from Gold Coast University Hospital dated 3 October 2017.
In February 2018 the Department of Human Services (“Centrelink”) arranged for an assessment recommendation to be undertaken. The recommendation was that the medical evidence indicated that since lodging his application Mr Monger had undertaken bilateral knee replacements and an ultrasound guided cortisone injection into his right elbow. The assessor also noted that the report of Ms Wood was written prior to Mr Monger undergoing his bilateral knee replacements and no further reports had been provided since that time.[14]
[14]Exhibit 1, T Documents, T 80, pages 318 – 319, DSP medical assessment recommendation dated 2 February 2018.
Following the medical assessment recommendation Centrelink rejected Mr Monger’s claim for DSP.[15]
[15] Exhibit 1, T Documents, T 81, pages 320 – 321, Letter from Centrelink to Mr Monger dated 9 February 2017.
Mr Monger sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).[16] The subsequent review by the ARO was unsuccessful on the grounds that Mr Monger’s medical conditions were not fully diagnosed, treated and stabilised or did not attract an impairment rating of 20 points.[17]
[16] Exhibit 1, T Documents, T 82, pages 322 – 323, request of statement.
[17] Exhibit 1, T Documents, T 83, pages 324 – 330, Decision of ARO and notes dated 23 February 2018.
Mr Monger then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Monger’s claim and affirmed the ARO’s decision on 19 March 2018.[18]
[18] Exhibit 1, T Documents, T2, pages 6 – 11, SSCSD’s Decision and Reasons for Decision dated 19 March 2018.
Mr Monger has sought a review of the SSCSD’s decision by this Tribunal.[19]
[19] Exhibit 1, T Documents, T1, pages 1- 5, Mr Monger's Application for Review dated 16 April 2018.
This is Mr Monger’s fourth attempt to obtain the DSP since 2013.[20] Prior to applying for the DSP in 2013 Mr Monger worked as a security officer. Mr Monger has been receiving New Start Allowance since 2013.
[20] Exhibit 1, T Documents, T 86, page 418, pension status history.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Monger must have a physical, intellectual or psychiatric impairment;
(b)Mr Monger’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[21]
(c)Mr Monger must have a continuing inability to work.
[21] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Monger meets the Section 94 Requirements is the date of the claim (in this instance as at 8 December 2016), unless Mr Monger becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[22] Therefore, in order to qualify for DSP Mr Monger must have met the Section 94 Requirements between 8 December 2016 and 8 March 2017 (“Qualification Period”).
[22] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Monger’s impairments after the Qualification Period can only be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[23]
DID MR MONGER HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[23] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s “condition”, and “condition” as “a medical condition”.[24]
[24] Determination, s 3.
Mr Monger’s Medical Conditions
At the hearing Mr and Mrs Monger confirmed that the conditions that relied upon for the purposes of his DSP application in December 2016 were his lumbar spine condition, knee condition and mental health conditions.
Knees
In 2009 an MRI indicated that Mr Monger had “severe patellofemoral osteoarthritis” and a degenerative tear in his left knee.[25] In 2010 an x-ray confirmed that he had moderate degenerative arthropathy in his right knee.[26] Mr Monger was initially treated with corticosteroid injections and muscular strengthening exercises. In 2011 the treating orthopaedic specialists believed a knee replacement was not foreseen in the immediate future.[27] It was also thought at that time, and in 2014, that Mr Monger was too young to have a bilateral knee replacement surgery. However by May 2015 Mr Monger was awaiting a hospital appointment.[28]
[25]         Exhibit 1, T Documents, T5, page 60, MRI dated 16 September 2009.
[26]         Exhibit 1, T Documents, T7, page 64, X-ray report dated 23 November 2010.
[27]         Exhibit 1, T Documents, T8, page 65, Orthopaedic report dated 1 June 2011.
[28]         Exhibit 1, T Documents, T 52, page 210, JCA report dated 7 October 2015.
As at July 2016, as his knee condition worsened, Mr Monger was placed on a waiting list for total knee replacement. Dr Bailey reported that it was hoped that Mr Monger’s function would improve post-surgery.[29] Prior to the total knee replacement surgery Mr Monger had a bilateral knee meniscectomy in September 2016.[30] Mrs Monger confirmed at the hearing that this process was undertaken in the hope that a total knee replacement would not be necessary. However it became apparent that a total knee replacement would be required.
[29] Exhibit 1, T Documents, T 63, page 250, Medical certificate of Dr Bailey dated 15 July 2016.
[30] Exhibit 1, T Documents, T 84, page 404, Medical Report of Dr Bailey dated 12 March 2018.
Three months after the meniscectomy Mr Monger filed his DSP application. The bilateral total knee replacement took place nine months later in September 2017.
Dr Peter Dodd, Orthopaedic Surgeon, confirmed in March 2018 that following the bilateral total knee replacements Mr Monger had ongoing problems in that “he has not got full bend and he has swelling on both sides”. Dr Dodd examined Mr Monger’s knees and reported that the range of motion of both knees was from zero to 110% and that the joints appear to be stable. In Dr Dodd’s opinion the recent knee replacements would prevent Mr Monger returning to activities such as security as he did before.[31]
[31] Exhibit 1, T Documents, T 84, pages 400 – 401, Report of Dr Dodd dated March 2018.
Spine
CT scans in 2013 indicate that Mr Monger had multilevel spondylosis, mild multilevel facet joint degenerative changes in his lumbar spine, and stenosis in the left L5/S1 foramen.[32] Mr Monger was treated initially with CT guided injections and pain killers.[33]
[32] Exhibit 1, T Documents, T21, page 84, CT report dated 9 October 2013.
[33] Exhibit 1, T Documents, T23, pages 91-92, X-ray report dated 23 November 2010.
In relation to Mr Monger’s spinal condition Dr Dodd reported that:[34]
(a)Mr Monger’s back was his main issue;
(b)in 2002 he underwent a laminectomy but has significant degenerative changes throughout the whole of his lumbar spine with multilevel facet joint degeneration and degenerative spondylolisthesis at L3/4;
(c)Mr Monger has a loss of lordosis and can only forward flex so his fingers reached his knees and has about 50% range of extension and lateral flexion; and
(d)his back condition prevents him from doing physical work.
[34] Exhibit 1, T Documents, T 84, pages 400 – 401, Report of Dr Dodd dated March 5 2018.
Depression
In March 2018 Ms Wood provided a further report to explain that she interviewed Mr Monger on 2 March 2018 after his knee surgery and administered further structured clinical interviews for DSM – V disorders. Ms Wood reported that:[35]
(a)it was clear to her that Mr Monger met the criteria for “depressive disorder due to another medical condition”;
(b)having considered the Tables contained in the Determination, Mr Monger met the criteria for a moderate functional impact on activities involving his mental health function;
(c)since meeting Mr Monger in August 2016 Ms Wood has been implementing cognitive behavioural therapy for chronic pain and there had been some success but that there is a limit to change that can be made psychologically when the physical condition is intractable;
(d)in her opinion Mr Monger’s mental health condition is stable based on intervention over a significant period of time;
(e)CBT is a well-established treatment for chronic pain and incorporates techniques both from cognitive behavioural approaches to depression and anxiety.
[35] Exhibit 1, T Documents, T 84, pages 406 – 409, Report of Ms Wood dated 14 March 2018.
Conclusion on Impairment
The Respondent accepts that Mr Monger suffered from impairments for the purposes of section 94(1)(a) of the Act during the Qualification Period.[36]
[36] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 27 August 2018, para 26.
In light of the above medical evidence the Tribunal finds that during the Qualification Period Mr Monger suffered a Lumbar Spine Impairment, a Knee Impairment and a Psychiatric Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
DO MR MONGER’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[37] They are function based[38] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[39]
[37] Determination, s 4(2) and 5(2)(a).
[38] Determination, s 5(2)(b) and (c).
[39] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[40]
(a)Mr Monger’s condition causing that impairment is “permanent”; and
(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.
[40] Determination, see s 6(3).
Mr Monger’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[41]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[41] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[42] the following must be considered:[43]
(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.
[42] For the purposes of ss 6(4)(a) and (b) of the Determination.
[43] Determination, see s 6(5).
A condition is fully stabilised[44] if:[45]
(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[46]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[44] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[45] Determination, see s 6(6).
[46] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that Mr Monger, for DSP purposes, has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
IS MR MONGER’S KNEE IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence supports a finding that Mr Monger’s Knee Impairments are fully diagnosed. However, as at the Qualification Period, Mr Monger had not had the Knee Replacement surgery, nor had he had the post-operative physiotherapy or other post-operative treatments. While Dr Dodd reported 12 months after the surgery, in March 2018, that Mr Monger has had ongoing issues with his knees, that does not mean that the surgery treatment was not reasonable treatment. It was clearly recommended and considered by his treating specialists as treatment which would be required and the expectation when Mr Monger was placed on the surgical wait list was that it would improve his ability to function. Dr Dodd’s report is 12 months outside the Qualification Period. Even if it can be said there has been no improvement, which is not clear on the evidence, at the time the knee surgery was reasonable treatment for Mr Monger’s Knee Impairment. Until that treatment had been undertaken the condition cannot be said to be permanent as that term is defined in the Act.

In the circumstances, this condition cannot be considered to have been fully treated and fully stabilised during the Qualification Period as required by the Act and therefore no Impairment Rating can be assigned.
IS MR MONGER’S SPINAL IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence establishes that Mr Monger has been fully diagnosed with:
(a)Chronic multilevel osteoarthritis/degenerative disc disease of the lumbar spine;
(b)degenerative disc disease of the cervical spine;
(c)facet joint disease with spondylosis and foraminal stenosis at the L5/S1 level.
The Secretary accepts that Mr Monger’s Lumbar Spine Impairment has been fully diagnosed, treated and stabilised during the Qualification Period.[47] Based on the medical evidence the Tribunal is satisfied that Mr Monger’s Spinal Impairment is permanent and an Impairment Rating can be assigned.
[47] Exhibit 2, Secretary's Statement of Facts and Contentions dated 9 February 2018, paras 36-38.
Relevant Impairment Table and Impairment Rating
In light of the evidence, Table 4 of the Determination, which deals with Spinal Function, is the relevant Table.
Table 4 – Spinal Function
The introduction to Table 4 provides that:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-Report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
The Secretary submitted that the appropriate Impairment Rating under Table 4 is 5 points.[48]
[48]See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 27 August 2018, para 42.
In order to assign an Impairment Rating of 5 points the evidence would need to show that Mr Monger has 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 his trunk or moving his head (e.g. to look to the sides or upwards).
In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr Monger is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)[Mr Monger] is unable to sustain overhead activities (e.g. accessing items overhead height); or
(b)[Mr Monger] has difficulty moving his head to look in all directions (e.g. turning his head to look over their shoulder); or
(c)[Mr Monger] is unable to bend forward to pick up a light object placed at knee height; or
(d)[Mr Monger] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
In order to assign an Impairment Rating of 20 points the evidence would need to show that Mr Monger is unable to:
(a)       perform any overhead activities; or
(b)       turn his head, or bend his neck, without moving his trunk; or
(c)       bend forward to pick up a light object from a desk or table; or
(d)       remain seated for at least 10 minutes
Mr Monger’s Spinal Impairment is a long standing condition which has clearly deteriorated over time. At the hearing Mr Monger confirmed that he was now in receipt of the DSP pursuant to a subsequent application. The issue for this Tribunal is what is the appropriate rating for this condition as at the Qualification Period.
The evidence available indicates that Mr Monger:
(a)is able to bend forward to pick up a light object placed at knee height;
(b)had pain, stiffness and restriction of movement;[49]
[49]         Exhibit 1, T Documents, T 47, pages 178 – 188, Report of Dr Butt dated 21 May 2015.
(c)reported to Dr Moore in May 2015 that he was unable to show himself, breaches feet, tie his shoelaces, lift anything more than about 8 kg or twist his body;[50]
[50]         Exhibit 1, T Documents, T 48, page 190, Report of Ms More dated 25 May 2015.
(d)reported to the JCA in July 2015 that:[51]
[51]         Exhibit 1, T Documents, T 49, pages 195 and 200, JCA report dated 17 July 2015.
(i)he can sit in a car for up to one hour before needing to change position;
(ii)he is unable to reach to levels above his eye level as this exacerbates his lower back pain and referred pain;
(iii)he cannot hang out the washing unless the line is at chest height or reach to shelves above his eye level;
(iv)he is unable to bend to wash or dry his lower legs and gets his wife to do this for him; and
(v)he is unable to tie up shoelaces.
(a)had ongoing flares of back pain and was unable to do any sort of manual work;[52]
(b)had daily back pain and stiffness and reduced ability to mobilise;[53] and
(c)bending lifting and twisting aggravates his back pain.
[52]         Exhibit 1, T Documents, T 63, page 250, Medical certificate of Dr Bailey dated 15 July 2016.
[53]         Exhibit 1, T Documents, T 65, pages 283 – 290, Report of Dr Bailey dated 8 December 2016.
Dr Dodd described Mr Monger’s spinal impairment as “severe lumbar disc degeneration”.[54]
[54] Exhibit 1, T Documents, T 84, pages 402 – 403, Report of Dr Dodd dated 30 November 2014.
The SSCSD reported the following evidence of Mr Monger:[55]
17. Mr Monger told the tribunal that he had a lumbar discectomy operation in 2002 but still suffers constant pain in his lower back. The pain moves to Mr Monger's hips and legs, especially the right. It often wakes him up during the night and he frequently finds it necessary to lie down flat on the floor during the day. Mr Monger takes Panadeine Forte to relieve the pain and requires Endone when it is really bad. He is unable to engage in household activities such as mowing the lawn and cooking meals but might be able to hang out the washing. Mr Monger has to be careful when reaching up to retrieve a book from a shelf or a plate from a cupboard, especially if it is above head height. The back pain makes it very hard for him to bend down to pick up something on the floor. Mr Monger can sit for 15 or 20 minutes. When seated he is able to reach forward to pick up a book on the table in front of him and does not need assistance from somebody else to stand up again. Mr Monger finds it necessary to turn his whole body to see what is around from him. He cannot play with his grandchildren as much as in the past. Mr Monger goes with his wife to do the shopping or walk around the op shop.
[55] Exhibit 1, T Documents, T2, pages 6 – 11, SSCSD’s Decision and Reasons for Decision dated 19 March 2018.
The SSCSD concluded that a 5-point impairment rating was appropriate for Mr Monger’s spinal impairment.
A further JCA, by way of file review, was conducted by a qualified social worker and physiotherapist in October 2015. The JCA concluded that Mr Monger’s spinal condition was having a moderate functional impact on his ability to function and that an appropriate impairment rating was 10 points. JCA noted that at a previous job capacity assessment conducted in July 2015 Mr Monger had reported that he was unable to reach above eye level as it exacerbates his back.[56]
[56] Exhibit 1, T Documents, T 52, pages 214 – 215, JCA report dated 7 October 2015; T 49, pages 195 and 200, JCA report dated 17 July 2015.
There was no evidence presented that Mr Monger is unable to:
(a)perform any overhead activities due to his lumbar spine condition; or
(b)bend forward to pick up a light object from a desk or table; or
(c)remain seated for at least 10 minutes.
There is evidence that Mr Monger self-reported that to see around him he needed to turn his whole body. However this evidence is not supported by any other corroborating material or any other self-report by Mr Monger.[57]
[57] Exhibit 1, T Documents, T 2, Page 9, Decision of the SSCSD dated 19 March 2018. .
Based on what is available, the Tribunal finds that there is consistent evidence that Mr Monger has difficulty with overhead activities and that the evidence is that he would be unable to sustain[58] overhead activities. The Tribunal finds that Mr Monger’s Spinal Impairment was having a moderate functional impact on Mr Monger’s ability to function during the Qualification Period, and that it attracts an Impairment Rating of 10 points.
[58] “Sustain” meaning to endure without giving way or yielding: Macquarie Online Dictionary; See also section 11(3) of the determination which specifically provides that when determining whether a descriptor applies for involves of person performing an activity, the descriptor applies of that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
At the hearing Mr Monger acknowledged that it was difficult for him to recall how his condition affected him during the Qualification Period, as opposed to now, and did not dispute what had been recorded in the JCA reports.
IS MR MONGER’S MENTAL HEALTH CONDITION PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence indicates that from as early as May 2015 Mr Monger has had depression and anxiety. In May 2014 Mr Monger’s general practitioner reported that is Mr Monger’s depression and anxiety was secondary to his chronic pain.[59] Mr Monger was to be referred to a pain clinic and psychologist and was on an antidepressant treatment.[60]
[59] Exhibit 1, T Documents, T 32, page 129, Report of Miami Family Medical Centre dated 20 May 2014.
[60] Exhibit 1, T Documents, T 34, page 142, GP management plan dated 21 May 2014.
In July 2014 Dr Butt reported that Mr Monger had increasing symptoms of depression and anxiety from his chronic health issues and chronic pain. Dr Butt reported that Mr Monger was currently awaiting an appointment at a pain clinic which had unreasonably long waiting periods and has started anti-depressants with some early response to treatment.[61]
[61] Exhibit 1, T Documents, T 36, page 150, Report of Dr Butt dated 15 July 2014.
In November 2014 Dr Canning, General Practitioner, reported that Mr Monger’s depression was causing him to have impaired concentration and a depressed mood.[62]
[62] Exhibit 1, T Documents, T 42, page 169, Medical certificate of Dr Canning dated 20 November 2014.
In May 2015 Mr Monger was seen by Elizabeth Moore, clinical psychologist. Ms Moore reported that:[63]
(a)Mr Monger met the criteria for major depressive disorder, severe with anxious distress, as described in the diagnostic and statistical manual – V;
(b)Mr Monger described having a depressed mood most days for most of the day, significant anhedonia, significant sleep disturbance, insomnia, very poor concentration and memory, strong fatigue, significant regular feelings of failure and hopelessness around not being able to provide for his family, had regular anxiety, became anxious in any situation involving completing forms or written material due to his dyslexia, and felt irritable a lot of the time;
(c)based on Mr Monger’s self-report of injury and symptoms it would appear that his depression and anxiety started shortly after his knee injuries and that it persisted;
(d)according to the DASS (depression anxiety and stress scales) Mr Monger was in the extremely severe range for depression, moderate range for anxiety and extremely severe range for stress;
(e)a number of factors contribute to and maintain Mr Monger’s depression and anxiety and include his pain, his health conditions, and the health issues of his wife and sons;
(f)Mr Monger’s depression is ”unlikely to be treated successfully until he is able to obtain knee replacements”;
(g)“it is unlikely that Mr Monger’s depression will be alleviated significantly in till several of the stresses and barriers are removed, most especially his pain and immobility”;
(h)she would rate Mr Monger’s impairment from depression as moderate based on Table 5 of the Determination.
[63] Exhibit 1, T Documents, T 48, pages 189 to 193, Report of Ms More dated 25 May 2015.
The medical evidence supports a finding that Mr Monger’s Mental Health Impairments are fully diagnosed prior to the Qualification Period. The issue is whether Mr Monger’s Mental Health Impairments were fully treated and fully stabilised.
The JCA in October 2015 recorded that the psychologist had indicated that past treatment included use of antidepressants and a number of psychology visits, and that Mr Monger indicated that he intended to continue with psychological counselling. At that time the JCA concluded that Mr Monger’s mental health conditions were not fully stable or fully treated because he had not engaged in the full course of psychotherapy which usually consists of 10 to 12 consecutive sessions.[64]
[64] Exhibit 1, T Documents, T 52, pages 210- 211, JCA report dated 7 October 2015.
In November 2015 Dr Butt reported that Mr Monger’s depression and anxiety was causing mood changes and emotional lability.[65]
[65] Exhibit 1, T Documents, T 54, page 226, medical certificate of Dr Butt dated 9 November 2015.
In August 2016 Miss Wood took over as Mr Monger’s clinical psychologist. It is unclear from the psychologist reports whether Mr Monger had any sessions with a psychologist between May 2015, when he saw Ms Moore and August 2016. At the hearing, Mr Monger confirmed that he had been attending at Ms Woods’ psychology clinic approximately once a month since August 2016. Mr Monger said that he had also been seeing Ms Moore regularly prior to seeing Ms Woods. Miss Moore left the practice and that is when he commenced seeing Ms Woods. The Tribunal has no reason to doubt Mr Monger’s evidence in that regard. The Secretary indicated likewise. However there is no indication of how many sessions Mr Monger had and he was unable to recall given that it was three years ago. If he attended sessions with Ms Wood monthly, it would mean that as at the Qualification Period Mr Monger had seen Ms Wood approximately eight times. Mr Monger confirmed that he continues to see Miss Ward monthly.
Ms Wood reported that at the time of the first consultation with Mr Monger in August 2016, Mr Monger was in the severe/extremely severe range for depression but that by January 2017 there had been some improvement in his anxiety score which was down to normal levels but his stress score remained high in the severe range as did his depression. In Ms Wood’s opinion this demonstrated that Mr Monger’s mood was an ongoing condition that required treatment. Miss Wood also made the point that pain and depression are well-known to be comorbid and that his physical health issues impinge upon his mental state. Ms Wood made the point that as Mr Monger’s mental health conditions have been ongoing for some years they are unlikely to amend completely even once he has had his knee surgery.[66]
[66] Exhibit 1, T Documents, T 72, pages 298 – 299, reported Ms Wood dated 21 April 2017.
In order to clarify her early report Ms Wood provided a subsequent report in March 2018. In her March 2018 report stated that:[67]
(a)in March 2018 after the knee surgery Mr Monger still met the criteria for depressive disorder due to another medical condition;
(b)Mr Monger has engaged in the appropriate treatment for his condition over the past 18 months (i.e. since August 2016);
(c)there had been some improvement although there is a limit to change that can be made psychologically when the physical condition is intractable;
(d)since meeting Mr Monger in 2016 she has been implementing cognitive behavioural therapy treatment with him;
(e)there has been some success in that between August 2016 and February 2018 Mr Monger’s depression has gone from extremely severe to moderate and his anxiety from severe to normal and his stress from extremely severe to mild.
[67] Exhibit 1, T Documents, T 84, pages 406 – 409, Report of Ms Wood dated 14 March 2018.
In Ms Woods opinion:[68]
Mr Monger has been formally assessed for depression and has been undergoing treatment for his depression for 18 months (with some though not complete, improvement). I believe this gives you evidence that this is a stable condition despite evidence based intervention over a significant period of time and therefore his depression should be considered as a mental health condition that meets criteria for disability support.
[68] Exhibit 1, T Documents, T 84, pages 406 – 409, Report of Ms Wood dated 14 March 2018.
At the hearing Mr Monger confirmed that the CBT treatment he had been having with Miss Wood had benefitted him and that he is currently on a new antidepressant.
At the Qualification Period, Mr Monger had not had the Knee replacement surgery. The medical reports indicate that Mr Monger’s mental health condition was comorbid with his physical pain. Given that the physical conditions had not been fully treated during the Qualification Period, it cannot be said that Mr Monger’s mental health conditions were fully treated or stable at that time either.
It is also clear from the evidence that as at the Qualification Period treatment with the psychologist was not complete. The majority of the CBT therapy sessions occurred after the Qualification Period. There is also insufficient evidence of the treatment that occurred in the lead up to this application for disability.
In the circumstances, the Tribunal finds that Mr Monger’s Mental Health Impairments were not fully treated and stabilised during the Qualified Period.
Conclusion on Mental Health Impairments
As Mr Monger’s Mental Health Impairments were not permanent for the purpose of the Act no Impairment Rating can be assigned.
The Tribunal notes that Mr Monger is now in receipt of the DSP pursuant to a subsequent application.
WERE MR MONGER’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP, a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. Mr Monger does not qualify for DSP because his permanent conditions did not attract a 20-point rating not during the Qualification Period.
DID MR MONGER HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As Mr Monger did not satisfy the criteria in section 94(1)(b) it is not necessary to consider whether he had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Mr Monger did not qualify for DSP during the Qualification Period. The decision under review is affirmed.

I certify that the preceding 79 (seventy -nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.............................[sgd]...........................................
Associate
Dated: 22 November 2018

Date of hearing: 7 November 2018

Advocate for Mr Monger: Mrs Monger (Applicant’s wife (by telephone

Advocate for the Respondent: Mr Rick McQuinlan, Senior Government Lawyer

Solicitors for the Respondent: Department of Human Services

[2018] AATA 4356

22 November 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	7 November 2018
Advocate for Mr Monger:	Mrs Monger (Applicant’s wife (by telephone
Advocate for the Respondent:	Mr Rick McQuinlan, Senior Government Lawyer
Solicitors for the Respondent:	Department of Human Services