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

Mongta and Secretary, Department of Social Services (Social services second review) [2018] AATA 2092 (4 July 2018)
Division:GENERAL DIVISION
File Number: 2017/7504
Re:Mr Larry Mongta
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:4 July 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Mr Mongta satisfies all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim.
[sgd]........................................................................
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY – disability support pension –– whether qualified – spinal and mental health conditions – whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991(Cth)
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke, Member
4 July 2018
INTRODUCTION

Mr Mongta (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (Cth) (the Act).
On 19 July 2017, Centrelink found that Mr Mongta was not entitled to DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
This application was heard on 8 May 2018 via telephone. Mr Mongta was self‑represented. Ms Belinda Lewis, government lawyer in the Freedom of Information and Litigation Team, Department of Human Services, appeared for the Respondent.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Mongta:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition which attracts 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Mongta, who is now 53 years of age, lives with his second wife and two small children in Echuca. He left school in year 11 at age 17 and completed an apprenticeship as a fitter and turner. He travelled extensively around Australia before returning to Echuca where he married his first wife, from whom he later separated. He has two adult children from this relationship. He first worked as a fitter and turner before doing chemical spraying. He then worked as a hobby farmer, a motel proprietor and in home renovations before joining the Department of Sustainability in 2005 as a Field Services Officer. He last worked in August 2013 following a protracted workers compensation claim.
Mr Mongta has been involved in a number of vehicle accidents:
·In 1988 he was riding a motor cycle when he sustained an injury to his collarbone. He did not have a significant amount of time off work;
·In 1990 he lost control while riding a motor cycle, which resulted in the loss of the top of his ring finger on his left hand;
·In 1992 he injured his right shoulder in a motor cycle accident;
·In 1999 he sustained injuries when he drove over a drain. He hit his head and suffered strain and pain to his neck;
·In 2006 in a workplace accident, he was a passenger in a loaded fire truck which was racing to a fire when the driver ran over some very rough ground. Mr Mongta was thrown around the cabin and onto the windscreen, sustaining injuries to his neck, back and shoulder. The driver stopped the vehicle and Mr Mongta was taken by ambulance to Shepparton Hospital where he was admitted for about two weeks. He was off work for about three months. He returned to work on alternative duties doing lighter work in the office, but could not cope and was off work for a further 18 months.
·In 2012 in a workplace accident, while on a job to put signs on the road to alert motorists of flooding, he was driving a four-wheel-drive utility with loaded water tanks on the back. He was travelling along a particularly rough and waterlogged road when he lost control of the vehicle and it rolled over, throwing him around the cabin. He believes he might have been knocked unconscious briefly, and woke with acute pain. Eventually he found his way out of the cabin, phoned his employer, and was taken by air ambulance to Shepparton. He was assessed and discharged, and was off work for about three months.
On 5 March 2017 Mr Mongta made an application for DSP, citing his medical conditions as L-1, L-2 crush compression wedge fracture, severe depressive disorder, post-traumatic stress disorder, anhedonia and migraines.
On 3 April 2017 Centrelink organised for a job capacity assessment (JCA) to be conducted on Mr Mongta. The assessment found that his:
·     spinal disorder was considered to be fully diagnosed, treated, and stabilised with a moderate functional impact on activities. 10 points were awarded under Table 4 – Spinal Function (Table 4) of the Impairment Tables;
·     psychiatric disorder was consider to be fully diagnosed but not fully treated or stabilised, as medical evidence indicates he has not received adequate psychological treatment since he first suffered symptoms of chronic reactive depres     sion in 1990;
·     baseline work capacity was assessed at 8-14 hours per week, and 15-22 hours per week within 2 years with intervention;
On 19 July 2017 Centrelink wrote to Mr Mongta to inform him that his DSP application had been refused, as he did not have an impairment rating of 20 points or more under the Impairment Tables.
On 30 August 2017, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink finding that Mr Mongta’s total impairment rating was 10 points under Table 4 of the Impairment Tables in respect of his spinal condition. The ARO also found that that Mr Mongta’s mental health condition could not be considered permanent as he had not received adequate counselling treatment. As his bilateral shoulder and elbow disorder had no corroborating medical evidence, they could not be considered fully treated and stabilised. The ARO also found that Mr Mongta had a continuing ability to work and had not met the program of support requirements, as he had not actively participated in a program of support for a period of 18 months in the 3 years prior to lodging his claim for DSP.
On 21 November 2017 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO to reject Mr Mongta’s DSP claim, and made the following findings:
·Mr Mongta was suffering from significant damage to his spine which the Tribunal agreed was fully diagnosed, treated and stabilised. At the time of the claim this condition was having a moderate impact on activities involving the lower limbs, and therefore 10 points were awarded under Table 4 of the Impairment Tables;
·The shoulder and elbow condition was diagnosed by ultrasound, however there was no medical evidence to show it had been treated or stabilised, so no rating could be assigned under the Impairment Table;
·The mental health condition of adjustment disorder with anxiety and depressed mood, major depressive disorder and post-traumatic stress disorder was fully diagnosed, but not fully treated or stabilised at the time of the claim. The Tribunal therefore could not assign a rating under the Impairment Tables;
·The Tribunal deemed it unnecessary to make a finding in respect of Mr Mongta’s continuing inability to work, as he had not met the other eligibility requirements for the DSP.
On 18 December 2017. Mr Mongta sought a review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (AAT2). He believes the decision made by the Tribunal at first instance is wrong, writing in his application:
Physical and mental assessments (current) from present doctors it would appear have no relevance and have not been considered as legitimate. My psychologist John O’Day was contacted 4 April 2017 some time ago according to the information in the decision; this is not current.
In accordance with s 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), Mr Mongta’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, being 8 June 2017.
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person qualifies for a DSP 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;
…
It is agreed that at the time of application Mr Mongta suffered from spinal, mental health, and arm/shoulder conditions that caused an impairment, and that he therefore satisfies s 94(1)(a) of the Act.
For a condition to be a severe impairment the Act at s 94(3B) provides:
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.
Example 1: A person's impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is permanent.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011; section 6(3)(a)
Section 6(4) of the Impairment Tables states that 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
…
(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.
The introduction to each relevant Impairment Table provides that self-report of symptoms alone is insufficient and that there must be corroborating evidence of the person’s impairment.
Section 6(5) of the Impairment Tables states:
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.
Section 6(6) of the Impairment Tables states:
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.
Section 6(7) of the Impairment Tables states that for the purposes of s 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.
The determinative issue in this review is whether, at the time, Mr Mongta suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a continuing inability to work.
Section 5(2) provides that the Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms, and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment. They are not designed to assess conditions.
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact on that person.
It is therefore necessary to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the T‑documents). Additional medical reports were provided by Mr Mongta.
DOES MR MONGTA HAVE A PHYSICAL, INTELLECTUAL, OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, a person must firstly suffer from an impairment.
Both parties accept that Mr Mongta is suffering spinal, mental health and arm/shoulder conditions. Accordingly, the Tribunal finds that Mr Mongta is suffering from an impairment and meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments are assigned a rating of 20 points or more under the Impairment Tables.
DOES MR MONGTA HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Spinal condition
Dr Michael Brighton-Knight, orthopaedic surgeon, in a report of 18 December 2007 stated:
Larry’s MRI of his lumbar spine certainly shows he has degenerative changes. He has quite advanced degenerative changes and reasonably normal discs.
I am sure his low back pain is coming from the changes within these discs but there is no surgical intervention that can be undertaken that will make any difference to this. The problem is that he has multiple level disc changes. Spinal fusion and disc replacement has been shown to be ineffective in situations where you have multiple levels of disc degeneration. Therefore, pain management needs to be the mainstay of his treatment...
Dr David Murphy, consultant physician in rehabilitation medicine, wrote in a report dated 25 June 2008:
He continues to be troubled by pain in the neck which is associated with headaches and pain around the right eye.
His is also troubled by ongoing back pain.
He has had lots of investigations, including MRI’s of the cervical spine which shows some degenerative changes at a number of levels but no signs of significant nerve root compression. He has also had MRI’s of the lumbar spine which shows a stable compression fracture of the L1 vertebra and some disc changes at other levels. Again there is no evidence of significant nerve root compression.
Dr J Wood, general practitioner, in a medico-legal report of 12 July 2010 opined that:
With regard to diagnosis of your client’s injuries, clinically apart from tenderness to the right lumbar spine, which I understand was fractured in the accident, Mr Mongta also had significant pain in his lower lumbar spine at L5-S1 level.
In addition, I was concerned about Mr Mongta’s cervical spine. He was complaining of altered sensation in the right upper limb, which corresponded approximately to the C6 dermatone and he was very tender at this level of the cervical spine. I felt that any accident that was severe enough to fracture a lumbar vertebra could easily have given him significant cervical injuries and that some of his symptomatology was actually in relation to his cervical spine. I subsequently ascertained that he had been previously noted to have MRI changes in the lower cervical spine which would be consistent with his cervical spine and upper limb symptoms. At the time when I saw Mr Mongta, I certainly believed he had organic pathology – in fact I wrote in my notes ‘genuine, physical problems’. As such, I do not believe that his pain was ‘organically based’. I did not see him as a ‘malingerer’ but I felt the pain he experienced had multiple exacerbating factors. One of the reasons I was concerned (as was the clinical psychologist) about Mr Mongta’s mood state was that this may have been impacting on how well he coped with his pain.
……
There was no doubt in my mind that there was an interplay between Mr Mongta’s physical symptoms and his mood state. I believed regular analgesia (Mr Mongta continued to take strong slow-release medication on ‘as needed' basis) and some support to make positive change in his life could have helped Mr Mongta progress. There was certainly secondary factors impacting on how likely it was for Mr Mongta to break out of the pain-distress cycle he had entered. I must admit that the protracted and complex nature of Mr Mongta’s course since the accident tends to suggest that a good outcome with complete resolution of his symptoms was less likely.
Dr Russell Miller, orthopaedic surgeon, made the following findings in a medico-legal report dated 26 March 2014:
Cervical Spine
He has suffered a musculo-ligamentous strain to the cervical spine and aggravation of degenerative disease in the cervical spine. He has significant and severe ongoing symptoms and there has been a pattern towards deterioration which would appear to have been further aggravated by the motor vehicle accident in October 2012. There is no evidence of radiculopathy or neurological deficit. I now regard the prognosis of the cervical spine as being poor/fair.
Lumbar Spine
He has suffered injury to the lumbar spine with a probable crush fracture of L1 which was likely to have occurred in the accident in November 2006. It is also likely that he suffered a musculo-ligamentous strain and aggravation of degenerative disease and lumbar spine. It is also likely that he suffered further aggravation of those conditions in the accident in October 2012.
…
Mr Mongta stated that he is able to drive a motor car. He has difficulty driving long distances. He has difficulty walking long distances. He does not currently use a walking aide. He will have a markedly reduced mobility as a result of orthopaedic injury.
…
He states his Chinese partner provides significant assistance with domestic and gardening activities. There is currently no paid domestic or gardening support. He will have a reduced capacity for domestic and gardening activities.
Mr Mongta previously enjoyed motorcycle riding, super rules football and steam boating. He has not been able to resume these activities and will have a marked, severe and permanent reduction in his capacity for pre-injury, leisure and recreational activities as a result of his cervical and lumbar spine problems.

The Tribunal explored the functional impact of Mr Mongta’s impairment under Table 4 of the Impairment Tables, as Mr Mongta’s accepted condition primarily impacts on his spine. In particular, the Tribunal explored his capacity in respect of a severe functional impact.
An impairment rating of 20 points will be assigned under Table 4 where there is a severe functional impact on activities involving spinal function.
(1)The person is unable to:
(a)perform any overhead activities; or
(b)turn their head, or bend their neck, without moving their 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 Mongta advised the Tribunal that:
·he is unable to do any overhead activities, and he can’t get things from above head height. He said it simply too painful and it even hurts to shower. He relies on his wife to assist with showering;
·he has difficulty turning his head and only drives short distances locally;
·he relies upon for his wife for all daily living activities. She performs all of the housework, washes his clothes, and cooks all his meals;
·he can’t bend or lean forward to pick up things, and has been provided with an aid designed to help him pick up items he has dropped. He relies upon his wife to assist him with looking after his feet and cutting his toenails;
·he is unable to remain seated for any length of time and is constantly moving. He undertakes stretching exercises to assist with the pain and is unable to use public transport.
Dr John Quayle, general practitioner, replying on 9 November 2015 to a letter from the Department of Human Services, stated:
…Mr Mongta had two major car accidents 23/11/2006 with compression of L1 fracture of L1 spine and also a cervical spine injury and the 1/10/2012 which was a compression fracture of L2 and aggravation of the cervical spine injury.
…Mr Mongta has been provided with a pickup stick in an aid to assist him putting on socks and shoes. He mainly uses his wife for ADL task throughout the day.
…Mr Mongta is in daily pain and has significant restriction of movement. This has been expertly detailed in the multiple long consultations performed through WorkCover... Mr Mongta is unable to sustain overhead activities, he does have difficulty in moving his head in different directions and he is unable to bend forward to pick up light objects at knee height and does require assistance in ADL’s as previously mentioned. I therefore assess his functional impairment of the spinal cord as 10.
The Respondent submitted that there was no medical evidence to support an assignment of 20 points to Mr Mongta’s spinal condition. Relying upon the most recent medical evidence of Dr Quayle, the Respondent contended that Mr Mongta’s functional impact was moderate and therefore should be awarded 10 points under Table 4 of the Impairment Tables.
The Tribunal found that Mr Mongta’s spinal’s condition had been fully diagnosed, treated and stabilised and was having a moderate impact on his functionality. The Tribunal therefore awarded 10 points under Table 4 of the Impairment Tables in respect of this condition.
Mental health
An Australian Government Health Service report dated 16 September 1993 states:
In his report Dr Epstein states that the applicant ‘does require psychiatric treatment on a continuing basis and he does need rehabilitation’. In his view there was a psychiatric impairment 25%.
In light of this additional evidence it would appear that the applicant is manifestly disabled from the combination of his hand and shoulder injuries and his reactive depression.
In his medico-legal report of 25 June 2008 Dr Murphy further writes that:
Larry is not working. He is clearly suffering from significant secondary depression. He has a lot of trouble sleeping, has poor energy levels and motivation, and is generally disorganised due to cognitive slowing. He doesn’t report a significant period of PTA, although I don’t think he has had a brain scan or any formal cognitive assessment.
…
Larry is clearly in need of a multidisciplinary program to help him improve his mood, level of activity, self-management of pain, and to help him return to more functional activities of daily living and hopefully a return to some form of work in the future.
...
I think Larry needs to be on an antidepressant. He said that you have trialled a few. Given the sleep disturbance, perhaps a small dose of Endep at 10-20 mg to start with may be helpful.
Dr Alan D Jager, forensic psychiatrist, in a medico-legal report on 29 August 2013 opined:
He is depressed, anxious and angry most of the time and his anger causes arguments with his wife. He enjoys his baby. He has difficulty getting to sleep and staying asleep, and is not meant to falling, falling backwards, falling into pits of snakes, car accidents and being in the fire truck like a frog on the windscreen with the driver laughing. Energy during the day is low, and he occasionally naps. Appetite is normal. He has no libido. His concentration is not good. He drives okay but is forgetful. He has had suicidal thoughts but has made no attempts.
….
He continues to take antidepressants and occasionally sedative medication. He feels depressed, anxious and angry, has arguments with his wife, insomnia, nightmares, reduced energy, libido, and concentration. He has had suicidal thoughts. At interview, he looked worried. He has a Chronic Major Depressive Disorder and Post-Traumatic Stress Disorder.
Dr Robert Athey, consultant psychiatrist, wrote in a medico-legal report on 30 December 2014:
He appears to have been psychologically severely distressed by both the accidents and on this occasion was more forthcoming with his symptomatology and I am of the opinion that the diagnosis of adjustment disorder I made in my original report probably underestimates situation.
The diagnosis of major depressive disorder and of post-traumatic stress disorder is a more serious diagnosis but with similar symptoms to that of an adjustment disorder with mixed anxiety and depressed mood.
As mentioned above he meets the criteria for post-traumatic stress disorder.
Post-traumatic stress disorder is often a long ongoing illness, which is basically anxiety-based. Recovery is often slow and if symptoms persist for more than two years the prognosis is guarded.
At the hearing, Table 5 – Mental Health Function of the Impairment Tables (Table 5) was explored in respect of the functional impact of Mr Mongta’s mental health condition, with a focus on whether or not he has a severe impairment.
An impairment rating of 20 points will be assigned under Table 5 where there is a severe functional impact on activities involving mental health function.
(1)The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: 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)(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
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.
(d)concentration and task completion;
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.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Mr Mongta advised the Tribunal that:
·He is unable to look after himself, has difficulty with showering and working in the kitchen as he has limited movement, and his wife performs all of the activities around the home. She is regularly telling him to do things to encourage him to be active, such as going for walks, but that he even finds this difficult and has no motivation;
·he is socially withdrawn, avoids people, fundamentally doesn’t engage with people, and is anxious and confused. Prior to the accidents he had a very active life, engaging in many social and sporting activities;
·his relationship with his wife and children is strained, he is often withdrawn, finds it difficult even speaking with his wife, doesn’t spend time with family and friends, and rarely leaves the house;
·he has great difficulty concentrating, has to read things numerous times in order for them to sink in, and is slow to respond to most questions;
·has difficulty sleeping, can’t plan things, is still angry about the accident and upset about many things, particularly the way the insurance company changes things constantly and made his life a misery;
·he has no ability to work or train.
Mr Bill Radley, psychologist and vocational assessment specialist, wrote of Mr Mongta in a report of 7 March 2015:
His mood seemed generally quite flat, anxious and somewhat agitated. His mood appeared depressed, despairing, physically tense and frustrated and his thinking appeared quite preoccupied, demoralised, rather vague and disorganised.
…
I conducted a brief objective assessment of Mr Mongta’s concentration and short-term memory using some brief test of mental abilities…. The results suggest that he is likely to have at least mild problems with both concentration and short-term memory.
Dr John Quayle further wrote in his report of 9 November 2015:
Mr Mongta remains angry, isolated and unable to hold down any form of concentrating. He has had a long history of conflict with the department which he work for. He has had self-harm and aggression and without the help of his wife he would not be able to be independent. Hence it is my view it has an extreme functional impact on his mental health.
Dr Adrian Waldron, general practitioner, stated in a report of 6 December 2016 in response to specific requests from the Department of Human Services:
…I would describe Mr Mongta as having a severe functional impact resulting from his ongoing severe depression, lack of concentration and ongoing disturbed behaviour thoughts and conversations. Indeed he still presents as a very angry isolated unwell gentleman…. There has been no significant change in Mr Mongta’s mental health function between February of this year and today’s date and looking back through these previous clinic notes and multiple assessments clearly this has remained largely unchanged for some years and it must be assumed his level of impairment was the same on the 22 October 2014.
The Respondent submits in their statement of issues, facts and contentions:
The applicant has had a number of medico-legal reports prepared for the purpose of transport and WorkCover claims. Consistently these reports have provided that the Applicant would benefit from psychiatric treatment, including antidepressants and he would also benefit from a multi-disciplinary pain management program. The Applicant has been seeing a psychologist for the 12 month period prior to his claim for DSP based on the evidence record, there has not been sufficient sessions to assist the Applicant better manage his symptoms.
The Secretary contends that there are reasonable treatment options for this condition that could be undertaken by the Applicant that could result in significant improvement to a level enabling the Applicant to undertake work in the next two years and therefore, at the relevant period, the Applicants mental health condition cannot be considered before we treated and stabilised.
Mr John O’Day, senior psychologist, in a report of 1 May 2018 stated:
It is the writer’s understanding that Mr Mongta’s diagnosis has been established and confirmed by a number of psychiatrists with relation to this matter. On 12 April 2016 Mr Mongta was administered the Depression, Anxiety and Stress Scale (DASS) and was found to have scored (36/42) on depression which was extremely severe, anxiety, extremely severe (28/42) and stress, extremely severe (38/42). It should be noted that Mr Mongta was in severe pain and saw little hope for his future.
He was further tested using the DASS on the 22^nd August 2017 with the following results 34/42 depression, 28/42 anxiety, and 38/42 for stress. Again these results were extremely severe with little reprieve in his symptomology.
On the 25^th January 2018 Mr Mongta was further tested using the DASS and his results all fell within the extremely severe range, depression 32/42, anxiety 20/42 and stress 36/42.
From these results, it is obvious that the therapeutic intervention has had little impact on his psychological state across time despite Mr Mongta being an active participant in his treatment.
…
In terms of the functional impact arising from Mr Mongta psychological condition, he often attends in a dishevelled state in significant pain. This pain often dominates his thinking and it is obvious to the writer that it has a profound impact on his life. Mr Mongta has reported that he is more often than not home-based and prefers the security of being at home. He has had issues with interpersonal relationship with his wife and she has even gone so far as seeking a legal separation from him. This devastated him as he has lost nearly everything and could not cope with that loss as well.
Mr Mongta reported that Disability Services connected to Centrelink have encouraged him to seek employment, but he cannot apply himself because of his chronic and debilitating pain, and lack of concentration and memory loss. Mr Mongta reported that he is also has difficulty processing information, making decisions, planning and managing any work tasks because he cannot cope with the normal demands of a job. Mr Mongta has further reported that it takes him a long time to process a response to a question posed to him, and will not respond until he believes he has it word perfect in his head. He has reported this can sometimes take up to 24 hours.
…
Mr Mongta has attended (or made himself available for phone consultation) all scheduled consultations and has complied with all treatment recommendations to the best of his ability.
As stated before Mr Mongta has experience extremely severe depression, anxiety and stress and the frequency and severity of his symptoms have been well documented throughout this report. Mr Mongta has severe difficulties with self-care would have difficulty living independently. Mr Mongta only travels to familiar places when his pain is under control. He has difficulty interacting with others as he feels he has nothing to contribute. Mr Mongta has slowed movements due to his medical injuries, so his reaction times are severely impaired. Mr Mongta’s severity of his medical condition as of March 9, 2017 impacts profoundly on his mental health function. Mr Mongta has had significant suicidal ideation throughout the course of treatment and is unable to take antidepressant medication.
The Tribunal found that Mr Mongta’s mental health condition, described as major depressive disorder and post-traumatic stress disorder, had been fully diagnosed, treated, and stabilised and was having a severe functional impact on his activities. The Tribunal found it was difficult to distinguish whether Mr Mongta’s inability to perform activities such as self-care, independent living, and concentration was caused by the pain from his spinal condition, or whether it was a result of his mental health condition.
The Tribunal found that Mr Mongta’s mental health condition was having a severe impact on his functionality, as he:
·had difficulty with self-care and independent living;
·fundamentally doesn’t do much socially, is withdrawn, avoids people, gets anxious, confused and lost and so does not like to have the house;
·has found his interpersonal relationships are predominantly broken down, he has lost contact with family and friends, is withdrawn from his wife and children, is even having difficulty speaking with his wife whom he relies upon greatly;
·has great difficulty with concentration, takes a great deal of time to process information, complete tasks or even answer a question;
·has disturbed behaviour and thoughts, resulting in his inability to plan and make decisions;
·is unable to work or train because of his inability to make decisions, plan and manage interpersonal relationships.
The Tribunal therefore awarded an assignment rating of 20 points under Table 5 of the Impairment Tables.
Arm/shoulder condition
The Australian Government Health Services Report dated 16 September 1993 further states:
This 28-year-old former fitter and turner has old injuries to his right shoulder and his left hand, the former involving a fracture to his clavicle and his acromio-clavical joint requiring surgical intervention to stabilise and the latter the amputation of the distal half of his ring finger and repair to the torn nail and tip of the fifth finger.
He complains of lack of power due to unpredictable pain in his right shoulder and pain, particularly to his left fifth finger-tip with unguarded knocks.
As a result of these limitations he is incapable of working at his trade but he should be able to work in areas highlighted away from machinery or sharp tools.
An ultrasound was performed on Mr Mongta on 19 January 2017 which found:
Ultrasound left shoulder: full thickness tear of subscapularis and medial dislocation of biceps. The latter shows tenosynovitis. There is also full thickness tear in anterior aspect of the supraspinatus with tendinosis elsewhere. Subacromial bursitis.
Ultrasound right elbow: severe tendinosis of common extensor tender origin with a small mid tender tear up to 4 mm with neovascularity.
The Respondent accepts that Mr Mongta’s arm and shoulder condition is fully diagnosed, but contended that there is insufficient evidence to support the contention that this condition was fully treated or stabilised.
The Tribunal found that this condition was long-standing and could be considered fully diagnosed, treated, and stabilised. However, its functional impact was causing common functional impairments as assessed under Table 4 and therefore it was inappropriate to assign separate impairment for this condition, as it would result in the same impairment being assessed more than once. Therefore, nil points were awarded to this condition.
DOES MR MONGTA HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mr Mongta must not only satisfy the requirement that he has an impairment with a rating of 20 points or more under the Impairment Tables, but he must also demonstrate that he has a continuing inability to work. Mr Mongta would be considered to have a continuing inability to work if his impairment is of itself sufficient to prevent him from doing any work independently of a program of support. he Tribunal found that Mr Mongta’s impairment was severe and therefore was of itself sufficient to prevent him from doing any work independently of a program of support or undertaking any training activity during the next two years. Mr Mongta therefore satisfies the s 94(1)(c)(i) requirement under the Act.
A JCA report of 3 April 2017 undertaken by a rehabilitation counsellor during a face-to-face assessment found that Mr Mongta had a baseline bandwidth work capacity of 8‑14 hours per week, as:
…customer has permanent physical and mental health conditions impacting their functioning and endurance. It is reasonable to expect symptoms of back pain, limited postural tolerances, limited manual handing capacity and reduced ability to cope with workplace stress will impact upon the types of work customer can do without adequate employment supports in place.

Mr Bill Radley further wrote in his vocational assessment report of 7 March 2015:
Mr Mongta is 50 years old, has a year 10 education, trade qualifications as a fitter and turner and certificate IV in cultural heritage management. At the time of his injury he was employed as a field services office. On 23 November 2006 and 1 October 2012 he sustained an injury to his lower back, neck and right shoulder. His doctor put him off work in October 2013 and he has remained off work since that time. As a result of his injury he is limited in his ability to engage in any significant manual labour, lift more than light weights, engage in any significant bending, stooping and/or twisting or sit or stand for more than short periods of time.
Mr Mongta has very limited transferable work skills. His work background is in unskilled, semiskilled, skilled nontrade and skilled trade occupations of a manual-practical nature of the middle to lower end of the occupational skill range.
Forty four medical reports from twenty six medical practitioners and four rehabilitation reports were provided and considered for this assessment. There is quite divided opinion in the medical reports about Mr Mongta’s physical and psychological capacity for work. Two physical medical practitioners and two psychiatric reports suggested Mr Mongta could return to his full pre-injury work duties. Nine physical medical practitioners and two psychiatrists suggested that Mr Mongta may have a capacity for alternative employment, albeit with significant work restrictions, and one physical medical practitioner and two psychiatrists concluded he had little or no capacity for any type of work.
Psychological test results indicate Mr Mongta to be an introverted and socially detached person who is reporting a very high level of anxious and depressed mood and is likely to be coping poorly with his chronic injury, pain and related problems. He has a level of general intelligence in the average range but with his physical and psychological symptoms and impairment he does not have the ability to undertake any type of occupational retraining.
Present and future work capacity: with his existing qualifications, skills and experience and injury physical limitations, my assessment is that Mr Mongta:
·has no current capacity to return to his pre-injury employment or to any similar employment. He has no current capacity for work
·has no current work capacity to return to any type of alternative employment
·has no capacity to undertake any type of occupational retraining
·has no capacity for any type of employment in the future
Assessment result: Mr Mongta is likely to have no work capacity for any alternative employment in the future. He is effectively unemployable.
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal as to whether the conclusions in a JCA report should be preferred to those in a medical report for the purpose of assessing a continuing inability to work. I do not think an absolute preference should be expressed for either report; rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or made assessments that formed part of the report), the duration and frequency of the report, the writer’s relationship with the subject of the report, and the reliability and depth of the analysis within the report.
The Tribunal concurs with the finding of Mr Mongta’s general practitioners Dr Quayle and Dr Waldron that the assessment of Mr Radley was an accurate assessment of his work capacity. This was substantiated by the JCA undertaken on 3 April 2017.
CONCLUSION
The Tribunal has awarded 10 points to Mr Mongta under Table 4 – Spinal Function, as he has significant but not severe issues with his spine. There was no evidence presented to the Tribunal which suggested that Mr Mongta was unable to remain seated for at least 10 minutes. The Tribunal also awarded 20 points under Table 5 – Mental Health Function for Mr Mongta’s major depressive and post-traumatic stress disorders, as he suffers from a severe functional impact on activities involving his mental health function.
I am satisfied that, at the date of application, Ms Mongta was qualified to receive the DSP. His impairments attracted a total of 30 impairment points under the Impairment Tables based on a rating of 10 points for spinal function and : 20 points for mental health function. Additionally, Mr Mongta’s continuing inability to work means that he satisfies s 94(1)(c) of the Act.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that Mr Mongta satisfies all the requirements of s 94 of the Social Security Act 1991, and thereby qualified for the Disability Support Pension as at the date of his claim.

I certify that the preceding 66 (sixty‑six) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

[sgd].....................................................................
Associate
Dated: 4 July 2018

Date of hearing: 9 May 2018

Applicant: Self-Represented

Advocate for the Respondent: Ms Belinda Lewis

Solicitors for the Respondent: Department of Human Services,
Freedom of Information and Litigation Branch

[2018] AATA 2092

4 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	9 May 2018
Applicant:	Self-Represented
Advocate for the Respondent:	Ms Belinda Lewis
Solicitors for the Respondent:	Department of Human Services, Freedom of Information and Litigation Branch