Morgan and Secretary, Department of Social Services (Social services second review) - [2017] AATA 482

Morgan and Secretary, Department of Social Services (Social services second review) [2017] AATA 482 (13 April 2017)
Division:GENERAL DIVISION
File Number: 2015/6844
Re:Brett Morgan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:13 April 2017
Place:Brisbane

The decision under review is set aside and substituted. The Tribunal finds that the Applicant satisfied the criteria in section 94 of the Social Security Act 1991 (Cth) and qualified for Disability Support Pension on 7 April 2015.
.............................[sgd].................................
Senior Member T. Tavoularis
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – Accepted Applicant had/has a chronic back pain condition - whether Applicant’s condition(s) rated 20 impairments points – Applicant’s condition rated 20 impairment points under Table 4 – had continuing inability to work – decision under review set aside and substituted
Legislation
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Secondary Materials
The Guide to Social Security Law
REASONS FOR DECISION
Senior Member T. Tavoularis
13 April 2017
INTRODUCTION

On 7 April 2015, Mr Brett Morgan (the “Applicant”) lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as: “chronic lower back pain shooting up to my neck and shoulders”.[1]
[1] See Exhibit 7, T Documents, T4, p 40.
The issue before the Tribunal is whether the Applicant qualified for DSP at the date of his claim (7 April 2015), or within 13 weeks thereafter, that being up until 7 July 2015 (“the Relevant Period”).
HISTORY OF THE MATTER
On 7 April 2015 the Applicant lodged a claim for DSP with Centrelink in writing.[2] Accompanying that claim was a pro-forma medical report by Dr Nicolae Mohanu dated

3 April 2015.[3] Dr Mohanu recorded “severe back pain” with a date of onset in 2010 as the primary diagnosis. He further opined that in addition to the Applicant’s past treatment consisting of physiotherapy/massage and “narcotics” (which had been administered to him since 2010) future treatment would most likely comprise additional physiotherapy.

Dr Mohanu recorded “not able to do much walking and physical work because of severe restriction” as the Applicant’s current symptoms. In terms of the impact of the condition on the Applicant’s ability to function, Dr Mohanu thought the primary areas of impact were

(1) low endurance, and (2) severe impairment of the Applicant’s mobility.
[2] See Exhibit 7, T4.
[3] See Exhibit 7, T Documents, T14, pp 72 – 82.
A Job Capacity Assessment (“JCA”) report was prepared on 10 June 2015 and in respect of the Applicant’s several conditions, the JCA report writer concluded as follows:[4]
(a)with reference to the Applicant’s chronic (back) pain condition, the JCA report writer considered the condition fully diagnosed but not fully treated and stabilised because, according to the JCA report writer, further treatment was available to the Applicant which may have improved the functional impact of the condition. The JCA report further concluded that the Applicant could benefit from further specialist review and pain management to reduce and control the symptoms of this condition. Accordingly, no impairment points were allocated to this condition;
(b)with reference to the Applicant’s drug dependence, the JCA report writer thought this condition was fully diagnosed but did not consider it fully treated and stabilised because the Applicant had not yet engaged in treatment for this condition. Again, no impairment points were allocated to it;
(c)the JCA report writer thought the Applicant had a base line work capacity of between 8 – 14 hours per week rising to 15 – 22 hours per week within 2 years provided appropriate treatment interventions were administered. Further, as at the date of this JCA report, the report writer expressed the view that the Applicant’s fully diagnosed, treated and stabilised work capacities were 30+ hours per week because none of his conditions could be rated.
[4] See Exhibit 7, T Documents, T19, pp 106 - 109.
On 11 June 2015, Centrelink wrote to the Applicant notifying him that his claim for DSP had been rejected on the basis he did not have 20 or more impairment points.[5]
[5] See Exhibit 7, T Documents, T5, pp 43 - 44.
On 20 July 2015, at the request of the Applicant, an Authorised Review Officer (“ARO”) reviewed that decision and found it was correct.[6] The ARO reviewed the evidence provided and made the following findings of fact:
“Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·     Your conditions of severe back pain and drug addictions are not accepted as being permanent as they have not been fully treated and stabilised.
·     No impairment rating can be assigned for your conditions.
·     You do not have an impairment rating of 20 points or more.
·     You do not have a continuing inability to work 15 hours per week or more because of your impairment.” [7]
[6] See Exhibit 7, T Documents, T6, p 45.
[7] See Exhibit 7, T Documents, T6, p 46.
The Applicant applied for review of this decision by the Social Services and Child Support Division of this Tribunal (“AAT1”). In support of his application for review the Applicant produced additional medical reports. These included reports from Dr Mohanu,[8] Dr Balin,[9] and Dr Sachdev.[10]
[8] See Exhibit 7, T Documents: T15, pages 83 – 87 (dated 6 May 2015); T17, pages 94 – 99 (dated 2 June 2015); T21, pages 114 – 119 (dated 18 October 2015); T22, page 120 (dated 29 October 2015).
[9] See Exhibit 7, T Documents: T18, pages 100 – 105 (dated 5 June 2015).
[10] See Exhibit 7, T Documents: T20, p 110 – 113 (dated 5 August 2015).
On 2 December 2015, the AAT1 affirmed the decision under review, finding the Applicant did not qualify for DSP during the Relevant Period.[11]
[11] See Exhibit 7, T Documents, T2, pp 3 - 7.
On 29 December 2015, the Applicant filed an Application for Second Review of Decision with the General Division of the Administrative Appeals Tribunal (“this Tribunal”).
The Applicant has provided this Tribunal with statements and additional medical evidence, including a report by Dr McEntee dated 14 June 2016.

LEGISLATIVE FRAMEWORK

Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 7 April 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[12] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 7 April 2015 and 7 July 2015.
[12] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:
“the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
[my underlining]
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[13] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[14] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[15]
[13] See s 26(1) of the Act.
[14] See s 5(2) of the Determination.
[15] See s 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[16] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[17]
[16] See s 6(3) of the Determination.
[17] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[18]
[18] See s 6(5) of the Determination.
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 two 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 two 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.[19]
[19] See s 6(6) of the Determination.
“Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[20]
[20] See s 6(7) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[21]
[21] See s 11(1) of the Determination.
Even where an applicant does meet the requirements for 20 impairment points to be given, they must meet the requirements in subsection 94(1)(c)(i) of the Act, namely that they have a continuing inability to work.[22] In respect of this requirement, all the criteria in subsection 94(2) of the Act need to be satisfied.
[22] See s 94(1)(c)(i) of the Act.
ISSUES FOR THE TRIBUNAL
The issues that arose in this review were:
(a)was the Applicant’s back injury condition fully diagnosed, treated and stabilised at the time of his claim for DSP (7 April 2015) or within 13 weeks of that date?
(b)if so, was any impairment that resulted from his back injury more likely than not, in light of available evidence, to persist for more than two years?
(c)if so, did his back injury cause a functional impairment that attracted an impairment rating of 20 points or more under the Impairment Tables?
(d)if so, did he have a continuing inability to work?
For the reasons outlined below, I am of the view that each of these issues should be answered in the affirmative and that the decision under review should be set aside and substituted with a decision that the Applicant satisfies the criteria appearing in section 94 of the Act.
CONSIDERATION
Does the Applicant have a physical, intellectual or psychiatric impairment pursuant to subsection 94(1)(a) of the Act?
The Respondent has made a helpful concession with reference to subsection 94(1)(a) of the Act in that it accepts the Applicant’s chronic lower back pain condition constitutes a physical impairment for the purposes of that section.
This means the remaining issues in dispute between the parties are relatively narrow. Specifically a determination is required as to:
(i)whether the Applicant’s chronic back pain condition attracts 20 points or more as required by subsection 94(1)(b) of the Act and, if so;
(ii)whether the Applicant has a continuing inability to work pursuant to subsection 94(1)(c) of the Act.
Is the Applicant’s impairment of 20 points or more under the Impairment Tables pursuant to subsection 94(1)(b) of the Act?
A further initial point to note is that the Respondent has conceded that the chronic back pain condition is fully diagnosed and that it is likely to persist for more than two (2) years. The remaining and critical questions are whether that condition is, for the purposes of this review, to be regarded as fully treated and stabilised.
Section 6 of the Determination has application to the issue of whether a condition is to be regarded as permanent. In particular, subsection 6(4) stipulates the requirements for a condition to be regarded as permanent:
“(4) For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(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.”
For present purposes, it is paragraphs (b) and (c) that are primarily in dispute.
Subsection 6(5) of the Determination regulates the consideration as to whether a condition can be regarded as fully diagnosed and fully treated. Subsection 6(6) of the Determination addresses the question of whether a condition is fully stabilised.
Subsection 6(5) of the Determination requires consideration of three elements before a condition can be regarded as fully diagnosed and fully treated. Those elements comprise:
(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 two years.
Is the Applicant’s condition fully diagnosed, treated and stabilised as at the date of the claim and for the relevant period thereafter?
As I understood the evidence, there did not seem to be any contest about corroborating evidence regarding the lower back pain condition. However, there was contest about the nature of the treatment or rehabilitation that had occurred and whether the treatment is continuing, including treatment(s) planned for the next two years.
The primary focus of the Respondent’s contention on the “fully diagnosed and fully treated” point related to treatment undertaken by this Applicant for pain management and, related to that, his use of alcohol.
I should at this point say that I agree with the submission put on behalf of the Applicant that the question of the Applicant’s participation in pain management therapy and his alcohol use more relevantly applies to the following question of whether his condition is “fully stabilised” as opposed to “fully treated”. This is because the treatment he has received to date has indeed occurred up to and including the relevant period and, thus, I think the Applicant’s submission that the subject condition has been fully treated is fairly and validly made.
Subsection 6(6) of the Determination relates to whether a condition can be regarded as “fully stabilised”. The first component of subsection 6(6) (paragraph (a)) asks whether a person has undertaken reasonable treatment for the condition and whether any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years (from the date of the claim).
The second component of subsection 6(6) of the Determination (paragraph (b)) provides, in the alternative, that even if an applicant has not undertaken reasonable treatment for the condition, it can still be regarded as fully stabilised if significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes treatment or there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The concept of “reasonable treatment” thus becomes an issue of considerable significance in ascertaining whether the requirements of subsection 6(6) of the Determination are met. The concept of “reasonable treatment” is specifically defined in subsection 6(7) that relevantly provides, inter alia, that “reasonable treatment” must be available at a location reasonably accessible to the person, it must be at a reasonable cost and, most relevantly for present purposes, can reliably be expected to result in a substantial improvement in functional capacity.
As I understood the Respondent’s case, it’s primary concern was whether the Applicant had completed pain management therapy to the extent that such therapy could be regarded as “reasonable treatment” for the purposes of subsection 6(7) of the Determination. Intertwined in this is the Applicant’s use of alcohol.
The Applicant’s representative proffered two responses to that issue. First, he submitted that the Applicant had in fact undertaken/completed the pain management program that had been prescribed to him. He referred to paragraph 32 of the Applicant’s statutory declaration wherein the Applicant said:
“I did a pain management clinic down in Nowra before I went to Thailand. They were trying to work out what medications to put me on - they were trying different things and I had to tell them what ones were working. They were trying to work out the best cocktail of drugs for the pain I had. They were trying to avoid the narcotics. I did this for about 3 months. It was a clinic which was in an old converted house, but I can’t remember the name of it. I went there about once a week for those three months. They asked a lot of personal questions about my lifestyle, drinking, and the pain and what I could and couldn’t do. They tried to teach me how to manage pain with minimal drugs.” [23]
[23] Exhibit 6, Statutory Declaration of Brett Morgan dated 22 July 2016, at [32].

At the hearing, the Applicant was not evasive when questioned about his participation in the pain management program. He gave evidence about making a genuine attempt to locate documentary proof about his participation in the program but said a new provider had taken over the clinic and that his original records were no longer available. It is therefore, to my mind, incorrect for the Respondent to contend that the Applicant’s evidence about participation in the pain management clinic is not corroborated. Unlike the assessment of a condition pursuant to a given Impairment Table may require corroboration of a person’s symptoms, there is no legislative requirement for similar corroboration with regard to participation in treatment sought to be qualified as “reasonable treatment”. Be that as it may, the Applicant’s representative put forward the valid point that there is some corroboration of the Applicant’s evidence in this regard because there is reference to pain management therapy in the earlier medical material.
The Applicant’s representative also made reference to the decision of the Full Federal Court decision of Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130. In Harris, the Applicant had received a recommendation from the contemporary equivalent of a “Job Capacity Assessor” to the effect that she ought to participate in a pain management program. In that case, reliance was sought to be placed upon the Applicant’s apparent lack of demonstrable proof of participation in a pain management program. The Full Court said: “Whatever that meant, it was not inconsistent with the proposition conveyed in plain terms in all the medical evidence that the chronic pain from Ms Harris suffered had been diagnosed, treated and stabilised”.[24]
[24] Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 at [39] per French, Tamberlin and Rares JJ.
The compelling point made on behalf of the Applicant is that it is therefore not enough for the Respondent to simply refer to some type of recommendation made to an applicant to participate in a given therapeutic program. Applied to the circumstances of this case, simply because the JCA and Dr Minogue have recommended that this Applicant participate in a pain management clinic is not in itself sufficient to conclude that a given condition which, on all of the historical evidence, is thus not fully treated and not fully stabilised.
The Applicant’s representative then referred to a series of the Applicant’s medical records,[25] which, to my mind, more than adequately demonstrate that the Applicant’s chronic back pain has been fully diagnosed, treated and stabilised:
a)with reference to the letter dated 18 October 2011 from the surgeon, Dr Peter Moloney, addressed to the Applicant’s then local medical officer (Dr Khanam). In the final paragraph of that letter, Dr Moloney says “I have recommended that Brett [the Applicant] should have some hydrotherapy and once the situation is beginning to settle could graduate this to some land based exercises and in particular once the pain has settled attention to some weight loss and core strengthening to endeavour to decrease the likelihood of further recurrences”.[26] In his abovementioned statutory declaration, the Applicant complements this evidence, stating: “I also did hydrotherapy (before I went to the pain management clinic) for about 6 months. The hydrotherapy was really relaxing when I was in the water but when I got out it was really painful.” [27]
b)with reference to a further letter from Dr Moloney dated 26 March 2012, confirming that the Applicant has in fact been under his care “….. for his low back problem since October 2011.” Later in this letter, Dr Moloney adds “He [the Applicant] suffers from acute back pain and needs his car to get to his various medical appointments and ongoing physiotherapy sessions.” [28]
c)with reference to another letter from Dr Moloney dated 2 May 2012. In this letter, Dr Moloney confirms to Dr Khanam that “On 24 April 2012, I performed an epidural injection of Fentanyl, Kenacort A40 and Marcain for Mr Brett Morgan at the Figtree Private Hospital. There were no problems with the performance of the procedure. Hopefully, there will be benefit from the procedure.” [29]
[25] Exhibit 8: Applicant’s Medical Records.
[26] Exhibit 8, Tab 2, p 21.
[27] Exhibit 6, Applicant’s Statutory Declaration dated 22 July 2016, at [33].
[28] Exhibit 8, Tab 2, p 16.
[29] Exhibit 8, Tab 2, p13.
I therefore agree with the contention made on behalf of the Applicant that there is extensive and demonstrable treatment of this Applicant’s chronic pain condition through the period October 2011 and well into May 2012.
The Applicant’s representative then referred to the report of the consultant orthopaedic surgeon, Dr Alan Searle dated 15 July 2012.[30] Although this report was prepared for a previous worker’s compensation claim, a component of which involved funding for ongoing treatment, Dr Searle’s report makes three significant points for the purposes of the present case:
(i) on the specific issue of ongoing treatment, Dr Searle says “With regard to treatment it does not seem that surgical treatment would offer any reasonable chance of improvement, unless he developed significant neurological deficit. There is no evidence of that at present. His treatment therefore will continue to be conservative and it would probably be best for this to be supervised at a Pain Management Clinic. These costs vary but an estimate of $7,000 would not be unreasonable”. As was contended, validly in my view, by the Applicant’s representative, this recommendation of Dr Searle’s, given as it was during the currency of the worker’s compensation claim (including funding for treatment) is surely corroborative of the Applicant’s own evidence when he says that he did participate in and complete the pain management program at the nominated clinic;
(ii) on the specific issue of the nature of the chronic back pain symptoms,
Dr Searle’s opined that “The ongoing symptoms from this injury are persistent and permanent and cause a severe degree of disability. He is unfit for all forms of gainful employment and this work incapacity is permanent. With regard to prognosis, I cannot see that he is likely to improve, and it must be accepted that the ongoing symptoms are permanent.” As was also contended, validly in my view, this Applicant had, by mid July 2012, reached maximum medical improvement and, further, that on any fair reading of Dr Searle’s report, there is not, as at July 2012, going to be any significant improvement in the Applicant’s condition even with his attendance at the pain management clinic;
(iii) as to the “reasonableness of treatment”, Dr Searle has recommended (in 2012) participation in the pain management clinic as conservative treatment and has given an estimated costing of $7,000 which in his view “…. would not be unreasonable”.
[30] Exhibit 7, T documents, T11, pp 60 – 64.
In a letter dated 5 September 2012, from Dr Moloney to the Applicant’s then local medical officer (Dr Khanam),[31] Dr Moloney confirms:
(i)he prescribed certain analgesic medication (Oxycontin) as well as Endone for management of pain;
(ii)the Applicant had been recently suffering from vertigo;
(iii)the Applicant was to undergo a colonoscopy for bleeding from the rectal area;
(iv)the Applicant continued to experience pain in his back and that an epidural injection of cortisone performed on him in April 2012 had not resulted in any lasting relief;
(v)the Applicant “… is booked in to be assessed by a Specialist in Pain Management in the next week or so and I have suggested to him that he carry through with this before allowing me to review him to decide what further avenue should be taken.”[32]
[31] Exhibit 8, Tab 2, p 9.
[32] Exhibit 8, Tab 2, p 9.
The “Specialist in Pain Management” referred to by Dr Moloney is Emeritus Professor
Dr Ian Webster.[33] In a letter dated 7 September 2012 from Dr Webster to the Applicant’s then local medical officer (Dr Khanam), [34] Dr Webster confirms he examined the Applicant and made the following recommendations for continued treatment by way of medication:
“Recommendations:
……
4. Continue sustained release oxycodene (OxyContin) 40mg twice per day.
5. Change from sertraline to duloxetine 30 mg per day – more effective in chronic pain.
6. Continue paracetamol 1.0 gm three to four times per day.
7. Continue pantoprazole.
8. Continue irbesartan.” [35]
[33] Consultant Physician.
[34] Exhibit 8, Tab 1, pp18 - 19.
[35] See Exhibit 8, Tab 1, p19.
Dr Webster makes no recommendation for any other treatment at that time. I agree with the contention put on behalf of the Applicant that Dr Searle’s recommendation of no requirement for any other treatment at this time is (1) clearly consistent with Dr Searle’s recommendations from earlier in 2012 and (2) confirms that by the end of 2012 the Applicant’s condition was fully treated and stabilised.
There is a gap in the treatment history because the Applicant departed Australia to go and live in Thailand for approximately two years from March 2013 until March 2015.[36] The Applicant was forthcoming about the time he spent in Thailand and his reasons for going there:
“[8]      This period in my life was really a nightmare. I was injured and in constant pain. I could not get back to work and my back was not getting any better, despite going to doctors, and physios. I had no income or savings. There was financial stress for my family as I couldn’t bring money in to support my wife and two girls as I had done in the past. My wife and I started to fight because there was no money. I felt useless and worthless. I was very emotional at the time. Basically everything went to shit after the work accident. My wife and I eventually had a property settlement, but we never got divorced (we never lived together after that time). I signed over the house to my wife and she stayed living in the house with the children.
[9]       So then I had nowhere to live. And I was precluded from claiming Centrelink for 3 years. I went to Thailand so I could make my remaining compo money last and because I needed to get away from everything – I was very emotional and down. My wife and two daughters remained in our house and I signed it over to her. I had no financial interest in the house since that time.
[10]     I then lived in Thailand for two and a half or three years. When I got to Thailand, I was unable to work because of my back. I couldn’t do anything, I couldn’t lift anything…
……….
[14]     I came back to Australia in March 2015 because I ran out of money. I had enough to pay my fare home but arrived back with no money at all.   I moved into my brother’s place in Tweed Heads West. My brother was renting there in ---- and his 17 year old son was living with him there. I have been living there with my brother and his son since returning to Australia.” [37]
[36] See Exhibit 3, Respondent’s SFIC, Attachment B: “Immigration Advised Movements”.
[37] Exhibit 6: Statutory Declaration of Brett Morgan dated 22 July 2016.
Upon his return to Australia, he immediately reported his ongoing chronic back pain symptoms to his local medical officer(s). On 2 June 2015, Dr Mohanu, in support of the Applicant’s successful application for early release of superannuation on compassionate grounds, noted the Applicant “has chronic acute back pain; cannot walk, stand or sit for long periods best suited to driving a motor vehicle to acess [sic] medical treatment which is ongoing a permanent condition.”[38]
[38] Exhibit 7, T documents, T17, p 99.
In a further report for the Applicant’s claim for early release of superannuation entitlements, Dr Balin, on 5 June 2015, noted the Applicant to be suffering from “chronic lower spine pain, severe L/spine … Injuries”.[39] Dr Balin thought it was a long term chronic condition and that the Applicant required the early release of superannuation money “to allow him to access medical consultations, investigations and intensive ongoing chiropractic treatment and physiotherapy.”[40]
[39] Exhibit 7, T documents, T18, p 103.
[40] Ibid, p 105.
In terms of a chronological sequence, the next person to observe and record a finding on the Applicant’s chronic back pain condition was the JCA report writer as part of the Applicant’s application for DSP. As mentioned earlier in these reasons, the JCA report writer was in no doubt that the Applicant was suffering from a permanent chronic and severe back pain condition.
There is, therefore, little or no room for doubt that the Applicant’s chronic back pain condition was present and clearly affecting his functional capacity upon his return from Thailand in March 2015 to the same, if not greater, extent than before he went overseas some two years earlier.
This brings me to an analysis of the primary medical evidence proffered by each side relevant to determination of the subject application for DSP. Dr Christopher Minogue (Specialist Occupational Physician), upon instructions from the Respondent’s Health Professional Advisory Unit, furnished a report dated 2 June 2016.[41]
[41] See Exhibit 4.
Following conclusion of the hearing, and with an opportunity to reflect on Dr Minogue’s oral evidence, I formed the view that his evidence was given on a reactive basis with a tendency to draw inferences of fact that were simply not borne out in the evidence. The Applicant’s representative pointed to two examples of this. First, in relation to the Applicant’s evidence of using a “noodle” floatation device to assist with his buoyancy when trying to reproduce therapeutic techniques he had learnt in previous hydrotherapy sessions, Dr Minogue sought to equate or relate this evidence to some tone of active involvement of the Applicant in swimming or other propulsion through the water. To my mind, this was a surprising and unsustainable hypothesis in circumstances where the Applicant’s clear evidence was that after carefully crawling on all fours across the sand to get to the water’s edge, he would try to stand in the water and then thread the “noodle” device in front of one of his upper limbs, across the shoulder blade part of his back and then across the front of his other upper limbs. The Applicant said this was his primary means of floatation when using the “noodle”. Absent the obvious and probably impossible restriction of any form of effective swimming or other propulsion through water by anyone so restrained, let alone someone with the Applicant’s symptoms and resulting restrictions,
Dr Minogue’s readiness to draw a conclusion of the Applicant being able to swim does, I think, betray his approach to the matter.
Second, when questioned about the bending descriptors appearing in Impairment Table 4 as they may apply to the Applicant, Dr Minogue assumed a position that the Applicant could bend to a certain level or extent simply because other opinions did not explicitly say the Applicant could not do so. Again, Dr Minogue’s willingness to draw inferences not apparent from the evidence leads me to agree with the contention of the Applicant’s representative that his tendency undermines the reliability of Dr Minogue’s opinions.
The main thrust of Dr Minogue’s evidence was that the Applicant’s chronic back pain condition could not be regarded as fully treated and stabilised due to an apparent lack of sufficient participation in pain management clinics.[42] He thought participation in pain management clinics would have the additional effect of addressing certain psychosocial factors which, according to Dr Minogue, are relevant to the Applicant’s ongoing complaints of pain:
“Psychosocial factors appear likely to have been relevant to Mr Morgan’s ongoing complaints of pain when assessed by the orthopaedic surgeon Dr A Searle in July 2012 (11 months post-injury), in light of the examination findings suggestive of abnormal pain behaviour, the patient’s opioid use and his report of marital separation with no access to his children. ...
Despite these indicators Dr Searle appears to have accepted Mr Morgan’s complaints at face value. In my opinion his report is likely to provide only a partial and perhaps insufficiently analytical perspective on the claimant’s medical presentation at the time. I consider Dr Searle’s opinion that maximum medical improvement had been reached, to have not been very solidly based in view of his recommendation for pain clinic supervision of ongoing conservative management. Specialist pain management clinics follow a multidisciplinary model, including attention to psychosocial factors if indicated.
I therefore consider it reasonable, on present evidence, for Mr Morgan’s back pain condition to be deemed not fully diagnosed, treated and stabilised (FDTS) during the relevant DSP application period from April 2015. …”[43]
[42] See Exhibit 4, HPAU Report, at p 5, Dr Minogue noted: “reasonable interventions would have included clinical psychologist assessment and management, referral to a drug and alcohol service…, and perhaps referral to a multi-disciplinary pain management clinic.”
[43] Exhibit 4, HPAU Report, at p 5.
During cross-examination, Dr Minogue was referred to the concept of reasonable treatment for the purposes of subsection 6(7) of the Determination. In particular, it was pointed out to him that 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.
In terms of availability of the treatment he proposed, Dr Minogue could only provide second hand information about what may have been available at the Gold Coast Hospital. I have difficulty in attributing any weight to that evidence in circumstances where (1) it is unsubstantiated and (2) the Applicant does not have an opportunity to cross-examine the original provider of that information.
With reference to the reasonable (or otherwise) cost of that treatment, Dr Minogue said the treatment would be available to the Applicant under the public system at the Gold Coast Hospital free of charge. He told the hearing about a six month waiting list for such treatment on the Gold Coast and even longer in Brisbane.
As for the requirement that such treatment should result in substantial improvement in the Applicant’s functional capacity, he opined that the level of improvement is a patient by patient measurement, but that for the purposes of this Applicant’s symptomatology, he thought, at best, there might be some improvement.
Taken in its totality, Dr Minogue’s evidence does not meet the stipulated requirements of “reasonable treatment” contained in subsection 6(7) of the Determination. There is insufficient evidence to establish the pain management treatment methodology proposed by Dr Minogue is (1) available to the Applicant in his local area; (2) at a reasonable cost; and (3) that it could be reliably expected to substantially improve his functional capacity.
Upon instructions received from the Applicant’s representatives, Dr Laurence McEntee, Orthopaedic Surgeon (Spine) furnished a report dated 14 June 2016.[44] Some initial observations should be made about the comparative expertise and experience of
Dr McEntee compared to Dr Minogue:
(i)Dr McEntee is an orthopaedic surgeon specialising in spinal conditions;
(ii)Dr Minogue is a Specialist Occupational Physician and described himself as a specialist in work-related injuries;
(iii)Dr McEntee conducted a clinical examination of the Applicant and, in addition, actually viewed the relevant MRI images and CT scans first hand;
(iv)Dr Minogue prepared his assessment and report, as it were, “on the papers” without examining or otherwise communicating with the Applicant nor did he view any of the accompanying MRI or CT scan imaging.
[44] Exhibit 5.

While none of the immediately preceding factors are necessarily determinative of any preference of one doctor’s evidence over the other, it is difficult to ignore the perhaps more tangibly derived findings of Dr McEntee. All of the impressions gleaned from the material of Dr Minogue are not complemented by any examination of the Applicant or viewing of the images of his spine. Dr Minogue says “Psychosocial factors appear likely to have been relevant to [the Applicant’s] ongoing complaints of pain when assessed by …… Dr Searle in July 2012”.[45] I have misgivings about the veracity of this finding about how the Applicant may have presented to Dr Searle in 2012 in circumstances where
[45] See Exhibit 4, HPAU Report, at p 5
Dr Minogue does not examine the Applicant in 2016 (his report is dated 2 June 2016) to assess the presence or otherwise of the psychological factors about which he opined.
To my mind, the veracity of Dr Minogue’s oral and written evidence would have been almost certainly augmented by a contemporaneous examination of the Applicant. This would have given greater weight to findings such as, for example:
(i)he noted possible psychosocial factors from the report of Dr Searle in 2012 and that these were still apparent in 2016 and would almost certainly have been present during the relevant period in 2015; and
(ii)following review of the Applicant’s medical records in 2016, he recommended a referral to a multi-disciplinary pain management clinic (and other methodology) to manage what Dr Minogue thought the totality of the symptoms were and whether that course of treatment would be such as to satisfy the “fully treated and stabilised” requirement of subsections 6(6) and (7) of the Determination.
Dr McEntee’s evidence was clear and unequivocal about the specific issue of any additional requirement for the Applicant to participate in a pain management program such as to meet the “fully treated” and “fully stabilised” requirements of subsections 6(5) and (6) of the Determination.
His evidence was that having regard to the chronic five year history of pain and its undisputed presence and severity both during the relevant period right up to the date of this hearing, any further participation in such a program is simply not going to result in any great improvement to the Applicant’s symptomatology. Dr McEntee refined this point in terms of the Applicant’s prospects of returning to his former mode of work. He told the hearing that no pain management or similar program undertaken by this Applicant now (or at any time in the two years prior to, during or post the relevant period) would facilitate this Applicant’s return to his former work as a chef in any commercially derived food business or undertaking.
Dr McEntee said that in his experience, after about the first two years or so following the date of an injury like this, the effectiveness of these types of treatments is such as to make it unlikely that there will be any improvement to an applicant’s functional capacity.
Much was sought to be made by the Respondent and Dr Minogue about the apparently unresolved nature of the Applicant’s use of alcohol and how that consumption needed to be addressed by the Applicant’s participation in a further pain management clinic or similar program.
I think that argument goes nowhere having regard to the context of severity and chronicity of the Applicant’s conditions. In contrast, Dr McEntee’s evidence was that even if the Applicant’s use of alcohol were to be reduced, it was unlikely to lead to much, if any, improvement in the management of his chronic lower back pain. Dr McEntee made it clear that this Applicant’s lower back pain, when viewed in isolation, was chronic, was severe, and would remain severe even if the element of the alcohol could somehow be extracted from the factual matrix of this case.
During his evidence, I posed a question to Dr McEntee along the lines of whether it was his unequivocal opinion that the Applicant’s back condition was fully treated and stabilised even though the alcohol had, perhaps, not been successfully addressed. Dr McEntee’s clear answer was “Yes – we have gone as far as we can go in terms of treatment.”
The Respondent fairly makes the point that a claim for DSP must be assessed as at the date of claim and within 13 weeks of that time.[46] Citing the authority of Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, the Respondent contended that if there is any worsening of the condition after that time, the Tribunal cannot rely on that worsening upon which to base a qualification for the DSP. As the Tribunal said in Bobera “…..If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”[47]
[46] Exhibit 3, Respondent’s SFIC, at [13].
[47] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].
Although accepting the immediately preceding proposition, the Applicant’s representative nevertheless made the submission that this Application is indeed a chronic condition that first arose on 15 August 2011 that has been fully treated and stabilised by the end of 2012. In other words, the end point of the “worsening” of the Applicant’s condition had been reached by the end of 2012. This submission finds favour with me and is, in my view, enhanced by circumstances surrounding the application: (1) there seems to be consensus about a chronic pain condition affecting the Applicant; (2) although not a factor for determining this Application, the Applicant was originally awarded the DSP on
7 September 2012 which was then cancelled with effect from 5 April 2013 due to a compensation preclusion period; (3) Dr McEntee’s evidence that beyond the first two years of the injury in August 2011, any program or course of treatment undertaken by the Applicant would be unlikely to improve functional capacity; and (4) Dr McEntee’s unequivocal evidence that even though the alcohol consumption may not have been successfully addressed, the Applicant had gone as far as he could go in terms of treating and stabilising his condition.
Mention should also be made of the orientation of Dr McEntee’s report. He was specifically asked these questions (in bold) and responded as follows:
“1.       Whether in your opinion, our client’s spinal condition was fully diagnosed, treated and stabilised as at 7 April – 7 July 2015 (the 13 week period after the date when our client lodged his claim for the DSP with Centrelink), and if not, whether the condition has been fully diagnosed treated and stabilised since that date (please state when)?
… I would consider that his spinal condition was fully diagnosed and was treated and stabilised at a time between 7 April 2015 and 7 July 2015 and has remained that way since that date.
3.        Whether in your opinion, any further reasonable treatment would have been unlikely to result in significant functional improvement to a level enabling our client to undertake work in the 2 years following 7 April 2015?
It is also my opinion that any further treatment, at this stage, (and also as of 7 April 2015), medical, surgical or otherwise, is unlikely to lead to any significant functional improvement for Mr Morgan, given the severity and chronicity of his symptoms…” [48]
[48] Exhibit 5, p 3.
This theme of consistency of pain referred to by Dr McEntee is consistent with the Applicant’s evidence at the hearing. He was asked in cross-examination whether he had experienced any change to his condition over the five (plus) years since August 2011. His response was in the negative, adding that he has experienced this pain consistently and incessantly since August 2011. He was frank enough to say that some days are worse than others and there can be fluctuation in the intensity of pain he experiences but the overriding impression I took from his evidence was one of constancy of pain.
I am inclined not to accept the evidence of Dr Minogue who makes a recommendation that the Applicant should participate in a pain management program before it could be concluded that the condition is fully treated and stabilised. The decision of the Full Court of the Federal Court in Harris,[49] to my mind, makes it clear that a mere recommendation to do or not do something is not sufficient to conclude that a chronic and long standing condition is neither fully treated nor fully stabilised.
[49] Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130.
Therefore, having regard to the totality of the evidence and submissions made, I find that the Applicant’s chronic back pain condition was fully diagnosed, treated and stabilised at the date of claim (being 7 April 2015).
Impairment rating for the Applicant’s condition
The further question to be met pursuant to subsection 94(1)(b) of the Act is whether the Applicant’s chronic back pain condition can be rated at 20 points or more under the relevant Table, in this case, Table 4 (Spinal Function). The introductory notes to Table 4 deal with the issue of self-reporting. During the hearing, questions were put to Dr McEntee about the Applicant’s self-reporting of his own pain symptoms. I understood Dr McEntee’s evidence to be along these lines: pain is not as tangible a medical phenomenon as, for example, a tumour, lesion, fracture or muscle tear. Pain is, by its very nature, subjective. It is difficult, perhaps impossible, to measure by externally administered methods. In the final analysis, a medical professional treating or assessing a pain condition is ultimately informed by a description of that pain by the person experiencing that pain.
That said, any proper application of the descriptors in Table 4 compels the Applicant to do better than simply self-reporting his symptoms to a medical professional. Self-reporting of symptoms alone is insufficient. There must be corroborating evidence of the Applicant’s impairment. Specifically, such corroborating evidence can include:
“ - a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment…;
- a 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.” [50]
[50] See Determination, Introduction to Table 4.
I do not recall any submission from the Respondent to this effect but there can surely be no cavilling with the suggestion that this Applicant has assembled a suite of reports from both treating doctors and medical specialists each of whom significantly corroborate the symptoms constituting his lower back pain condition. Notably, some of those medical reports comprise: `
(1)20 September 2011: an MRI report disclosing “Disc protrusions L4/5 and L5/S1 and facet joint arthropathy”[51];
(2)15 July 2012: an assessment and report by Dr Alan Searle, Consultant Orthopaedic Surgeon.[52] As discussed earlier in these Reasons;
(3)27 March 2015: a CT scan disclosing a mild disc bulge at L4/5 and mild impingement of exiting L4 nerve roots within the neural foramina;[53]
(4)3 April 2015: a report from Dr Nicolae Mohanu listing severe back pain as the diagnosis with a summary of past, current and future or planned treatments. Dr Mohanu also noted a five year history of back pain and thought the condition was expected to persist for more than 24 months and to deteriorate over that time;[54]
(5)2 June 2015: a further report from Dr Mohanu relating to early release of superannuation in which he described the Applicant’s condition as “disc damage lumbar spine” and identified treatment at a chiropractic centre and physiotherapy centre;[55]
(6)5 June 2015: a further report from Dr Paul Balin for early release of superannuation, which notes the Applicant is suffering from “chronic lower spine pain, severe L/5 spine disc injuries”. Dr Balin also thought the Applicant’s symptoms comprised a “long term chronic condition”;[56]
(7)14 June 2016: a report of Dr Laurence McEntee, Orthopaedic Surgeon. As discussed earlier in these Reasons.[57]
[51] Exhibit 8, Tab 2, p 25.
[52] Exhibit 7, T Documents, T11, pp 60-64.
[53] Exhibit 7, T Documents, T12, p 65.
[54] Exhibit 7, T Documents, T14, pp 72 - 82.
[55] Exhibit 7, T Documents, T17, pp 94 - 99.
[56] Exhibit 7, T Documents, T18, pp 100 - 105.
[57] Exhibit 5.
Before embarking on the exercise of applying impairment point descriptors, regard must be had to section 11 of the Determination that deals with “Assigning an impairment rating”. I was taken to subsection 11(3) that deals with “Descriptors involving performing activities”. That subsection provides that:
“When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely”.
I was also taken to subsection 11(4) of the Determination relating to “Episodic and fluctuating conditions”. That subsection provides that:
“When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.”
The resulting submission put on behalf of the Applicant (which I accept) is that application of a given descriptor is not isolated to the Applicant’s circumstances on his “good” days, it also involves taking into account his “bad” days as well.
Application of the descriptors in Table 4 relating to Spinal Function
The 20 point descriptors in Table 4 are as follows:
“20      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.”
The 10 point descriptors in Table 4 are as follows:
“10 There is a moderate functional impact on activities involving spinal function:
(1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (eg. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (eg. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).”
The Respondent’s primary contention is that the Applicant’s condition is not fully treated and stabilised and therefore cannot attract an impairment rating.[58] In the event the condition was to be considered fully diagnosed, treated and stabilised, the Respondent contends that the Applicant’s condition only attracts 10 points under Impairment Table 4.[59]
[58] See Exhibit 3, Respondent’s SFIC, at [41].
[59]See Exhibit 3, Respondent’s SFIC, at [42].
I have found the Applicant’s condition was fully diagnosed, treated and stabilised and accordingly reject the Respondent’s contention that the condition is not capable of being rated.
The Respondent contends that the criteria for a rating of 20 points has not been met due primarily to the following factors:[60]
·according to Dr Mohanu’s report dated 18 October 2015, the Applicant can sit for at least 20 minutes;
·a GP management plan dated 6 May 2015 suggests the Applicant can walk for 30 minutes per day, for 5 days or more per week;
·an early release superannuation form dated 5 June 2015 discloses that one of the reasons the Applicant was seeking early release of funds was to purchase a vehicle;
·there are Centrelink-immigration records which disclose overseas travel by the Applicant between 2012 and 2016.[61]
[60] See Exhibit 3, Respondent’s SFIC, at [43].
[61] See Exhibit 3, Respondent’s SFIC, Attachment B.
The Respondent further contended that Dr McEntee’s opinion that the subject condition attracted 20 points because the Applicant (1) could not bend forward to pick up a light object from a desk or table and (2) is unable to remain seated for 10 minutes; was at odds with the available evidence as particularized in the immediately preceding paragraph.
According to the Respondent, the Applicant’s condition attracts 10 points (at most) under Table 4 and he thus does not satisfy subsection 94(1)(b) of the Act.
The Applicant contends there is a severe functional impairment on his activities involving spinal function such as to attract 20 impairment points. This contention is propounded primarily on the basis of the findings of Dr McEntee. In his report, Dr McEntee was specifically asked these questions (in bold) and responded as follows:
“2. In your professional opinion, how do you rate our client’s functional impairment in relation to the descriptors set out in the relevant table contained in the Impairment Tables: for instance, would you rate his functional impairment as mild (5 points), moderate (10 points) or severe (20 points) according to the descriptors contained in Table 4 – Spinal function of the Impairment Tables? Please expressly refer to the descriptors in the relevant part of the Table when providing your rating of our client’s impairment.
I consider Mr Morgan’s functional impairment to be severe (20 points) according to the descriptors in Table 4. Specifically, he is unable to bend forward to pick up a light object from a desk or table and is unable to remain seated for 10 minutes as both these activities cause a significant amount of lower back pain.
4. Whether in your opinion, any further reasonable treatment would be unlikely to result in significant functional improvement to a level enabling our client to undertake work in the 2 years following the present time?
In my opinion, as a result of his injury and his chronic spinal condition, Mr Morgan will be unable to undertake any work in the 2 years from the present time.” [62]
[62] See Exhibit 5, Report of Dr McEntee dated 14 June 2016, p 3.
As outlined in the immediately preceding paragraph, Dr McEntee opines that this Applicant meets items (c) and (d) of the 20 point descriptor section of Table 4. That is, the Applicant was unable to bend forward to pick up a light object from a desk or table (c) and that he is unable to remain seated for at least 10 minutes (d).
At this point, it is necessary to have regard to subsection 5(3)(b) of the Determination. That subsection makes it clear that the allocation of impairment points is to be approached on the basis that:
·the first line of each descriptor, which is formatted in italics, is to be taken as a description of the level of impact of the impairment – that is, whether it is mild, moderate, severe or extreme;
·that level of impact can then be referenced to the particular examples of functional activities, abilities, symptoms and limitations contained in the numbered paragraphs below it … [my underlining]
Therefore, items (c) and (d) of the 20 point descriptor as identified by Dr McEntee are just examples of how, in his view, the Applicant fits within this 20 point descriptor section of Table 4. On this premise, item (c) of the 20 point descriptor does not just relate to “pick up a light object from a desk or table”, it also relates to “bend forward” to perform that function. I thus agree with the contention put on behalf of the Applicant that it is the bending that is of particular relevance to an assessment of this Applicant’s impairment rating for the purposes of item (c).

Based on his written report and his evidence at the hearing, I accept Dr McEntee’s opinion that the Applicant is unable to bend forward within the requirements of item (c) of the 20 point descriptors. My acceptance of this component of Dr McEntee’s opinion is consistent with the provisions of subsection 11(3) of the Determination such that although the Applicant might be able to meet the requirements of item (c) once or twice, he cannot do so “… normally and on a repetitive or habitual basis…” but can only do so “… only once or rarely”. This finding is clear from the Applicant’s self-reported symptoms but, more importantly, from Dr McEntee’s answers to a specifically directed question on this point. There is no such evidence from Dr Minogue who, as mentioned, did not perform an examination on the Applicant.
The submission that the Applicant simply cannot regularly and habitually bend forward with sufficient spinal movement in order to pick things up should be accepted particularly having regard to Dr McEntee’s evidence at the hearing that even if the Applicant could “grin and bear it” and force himself to perform the function a few times, there is no doubt he will be left with residual exacerbated pain from which he will need a deal of time to recover. In a similar vein, there can, to my mind, be little or no argument with the suggestion that he cannot perform this kind of function regularly and habitually.
Item (d) of the 20 point descriptor section of Table 4 refers to an applicant’s inability to remain seated for at least 10 minutes. The act of sitting and remaining seated is surely as subjective and personal a function as “bending forward to pick up” something. As part of its contentions on this point, the Respondent (1) made reference to a certain medical report suggesting the Applicant can sit for at least 20 minutes and (2) sought to make much of the Applicant’s travel overseas.
Turning firstly to the length of any sitting period, I consider it a somewhat hollow and perhaps absurd exercise to scour the material to try and find which doctor or other expert gives the shortest or longest sitting time for a particular applicant. I have difficulty in regarding as serious any submission that there is some kind of clearly delineable threshold between someone with a condition sitting for 10 or 20 or more minutes. To my mind, the more appropriate and relevant question to determine any application of item (d) of the 20 point descriptors is to ask whether the Applicant can regularly and habitually remain seated for at least 10 minutes. More particularly, the question is whether he can do so “without pain” – that is, without restrictions that are imposed by his condition. Here, Dr McEntee’s evidence was that he may sometimes be able to remain seated for up to 20 minutes but, by then, he will be in a position of having to most definitely get up from his seated position otherwise a significant level of pain will affect him.
Turning secondly to the Respondent’s contention about the Applicant’s overseas travel was squarely met by the frank and open evidence of the Applicant at the hearing. Any suggestion of untoward frequency of travel overseas can be explained by the Applicant’s evidence that a number of the trips involved travel to and from Thailand to secure the necessary visa for his partner. As I also recall his evidence, a couple of the trips were recreational in nature and it is not beyond the realms of possibility to expect this Applicant, who had a previously active and full life, to embark on some kind of recreational trip.
The most recent trip involved travel to Vietnam to celebrate the 50^th birthday of his brother. This trip is explainable on two grounds. First, regard must be had to the very important, perhaps critical, role played by the Applicant’s brother when the Applicant returned to Australia from Thailand in 2015. It was the brother that took in the Applicant otherwise the Applicant would have virtually nowhere else to stay. Second, it was a third party that organised travel and who presented the requirement to go on the trip to the Applicant as a fait accompli. The Applicant did not conceive of the trip, did not pay for the trip and did not choose to make the trip of his own volition. He felt compelled to go for the sake of his brother and thought he would be displeasing and letting down his brother if he did not go. It was only the involvement of the brother in this trip that made him feel compelled to go.
The Applicant certainly paid a price for making the trip. Even though the trip was of relatively short duration for only two weeks, the travel to Vietnam involved a two-stage process consisting of an initial lengthy flight of 6 – 7 hours to Kuala Lumpur followed by an hour and a half hour flight to Vietnam. His clear evidence was that he would not have been able to make the trip unless he had (1) “loaded up with medication” beforehand and (2) had the opportunity to lie down at the back of the plain for most of the trip. The exacerbation of pain resulting from the trip resulted in the Applicant spending two days in one of the local hospitals in order to have that pain addressed.
For the sake of completeness, I mention that the word “or” appears between each of the four items of the 20 point descriptor section of Table 4. The obvious requirement is that the Applicant does not have to satisfy all of the four items but only one. Also, during the hearing, I was referred to paragraph 3.6.3.40 of the Guide to Social Security Law with particular reference to the question of determining a descriptor that best fits a person’s impairment level. That paragraph relevantly provides:
“Determination of the descriptor that best fits the person’s impairment level must be based on the available medical evidence including the person’s medical history, investigation results and clinical findings. A person’s self-reported symptoms must not solely be relied on. It would be inappropriate to apply an impairment rating based solely on a person’s self-reported functional history if this level of functional impairment is not consistent with the medical evidence available.”
[my underlining]
For reasons already outlined, I accept the evidence of Dr McEntee in determining the descriptor(s) in Table 4 that best fits this Applicant’s impairment level. I prefer the report of Dr McEntee over that of Dr Minogue with particular reference to its investigation results and clinical findings based, as they were, on Dr McEntee’s actual examination of the Applicant. Although the Guide advises caution about solely relying upon the self-reporting of applicants in determining an applicable descriptor, as can be seen from the evidence, most, if not all, of the Applicant’s self-reporting and evidence at the hearing is consistent with the findings of Dr McEntee.
Having regard to the totality of the evidence adduced on behalf of the Applicant, I find that his symptoms comprising his chronic lower back pain fall squarely within the scope of a severe functional impact on his activities involving spinal function. Accordingly, I find that his condition attracts 20 impairment points pursuant to Table 4.
Does the Applicant have a continuing inability to work pursuant to subsections 94(1)(c) and 94(2) of the Act?
The next element to be satisfied by the Applicant involves demonstrating that he has a continuing inability to work.
Section 94(1)(c) of the Act provides that:
“(1)     A person is qualified for disability support pension if:
           ….
(c)       one of the following applies:
(i)        the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;”
As I recall the evidence, there was no mention that the Applicant was a person participating in the Commonwealth supported wage system for the purposes of subsection 94(1)(c)(ii) of the Act. Therefore I must find that the Applicant has a continuing inability to work as per subsection 94(1)(c)(i) of the Act.
Section 94(2) of the Act defines the concept of a ‘continuing inability to work’. It provides that:
“(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) …..- the person has actively participated in a program of support within the meaning of subsection (3C)…; and
(a) in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in a cases – either:
i.the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
ii.if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years”.
Looking at the first of those requirements, the concept of a “severe impairment” is defined in subsection 94(3B) of the Act. It relevantly provides as follows:
“Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.”
The immediately preceding definition means that an applicant who achieves 20 impairment points under a single Impairment Table and thus has a “severe impairment”, is not under any requirement to undertake a program of support, as required by subsection 94(2)(aa) and 94(3C). Conversely, if an applicant’s impairment is not a severe impairment, there is a requirement to have actively participated in a program of support.
I have found this Applicant should be assigned 20 points under a single Table (being Table 4). In accordance with subsections 94(2)(aa) and 94(3B), he does not have to meet any requirement of participating in a program of support.
Turning to the second requirement of a continuing inability to work, pursuant to subsection 94(2)(a), it is necessary to ascertain whether the impairment is of itself sufficient to prevent the applicant from doing any work independently of a program of support within the next two years.
Subsection 94(4) of the Act is relevant to considering whether the Applicant could do work independently of a program of support. It provides as follows:
“Doing work independently of a program of support
(4) A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.”
The relevant definition for “work” appears in subsection 94(5) of the Act which provides: “work” means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
As I understood the evidence, the only suggestion of the Applicant being able to work at a level of at least 15 hours per week derives from the findings of the JCA (who thought the Applicant had a capacity for work of 15 – 22 hours per week within two years with intervention.[63] The listed interventions comprised “pain management program”, “driving/mobility assessment/ assistance” and “further diagnostic/ medical investigation”. To my mind, the great difficulty with the JCA’s position is that it is based on the assumption that introduction of and adherence to the pain management program and the other two interventions will somehow increase the Applicant’s work capacity. The evidence before me during this hearing and, in particular, from both Doctors Minogue and McEntee is that any such pain management program (or other “intervention”) is not likely to achieve any such thing.
[63] Exhibit 7, T Documents, p108.
This Applicant has spent the majority of his working life in the retail food industry as a chef, both in commercial restaurants and as a contract chef with a labour hire company responsible for food preparation on Australian naval bases. It is, in my view, validly contended on behalf of the Applicant that (1) the Applicant’s skills and experience are limited to that field of work and (2) given that he has been out of the workforce since 2012 his work skills are not only limited but also mostly likely out of date.
In addition, the evidence does, in my view, support a finding that the Applicant’s impairment itself prevents him from undertaking any relevant work, with or without a program of support. The JCA thought his baseline work capacity was from 8 – 14 hours per week.[64] Dr Searle thought the Applicant’s back injury resulted in a permanent incapacity to work and that he was “unfit for all forms of gainful employment and this work incapacity is permanent”.[65] Dr McEntee thought the back injury precluded the Applicant from working more than 15 hours per week for at least the two years from 7 April 2015 being the date of the claim for DSP.[66]
[64] See Exhibit 7, T Documents, T19, p108.
[65] Exhibit 7, T Documents, T11, p64.
[66] See Exhibit 5, p 4, Q 5 & 6.
I therefore agree with the contention put on behalf of the Applicant that once a decision is made that this Applicant’s impairment attracts 20 points under a single Table, the evidence all pointed one way.
The final requirement for a continuing inability to work appears in subsection 94(2)(b) of the Act. In terms of the Applicant undertaking some type of “training activity” as defined in subsection 94(5) of the Act, I endorse the findings of Dr McEntee such that the Applicant was and is “prevented from undertaking a job readiness training activity”.[67] Any such “training activity” undertaken by the Applicant would most probably amount to nothing because the evidence makes it clear that such training would not likely result in any return of the Applicant to work within the period of two years following his claim for DSP on 7 April 2015. I therefore find that the Applicant’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years.
[67] See Exhibit 5, p 4, Q 7.
In conclusion I find that the Applicant has satisfied all the requirements in subsection 94(2) of the Act for a ‘continuing inability to work’.
SUMMARY OF FINDINGS
In summary, I have found that:
(a)it was accepted the Applicant has a physical impairment;
(b)the Applicant’s chronic back injury condition was fully diagnosed, treated and stabilised at the time of his claim for DSP (7 April 2015);
(c)the Applicant’s chronic back injury condition caused a severe functional impairment on his activities involving spinal function and thus attracted an impairment rating of 20 points under Impairment Table 4;
(d)any impairment that resulted from his back injury was more likely than not, in light of available evidence, to persist for more than two years;
(e)the Applicant had (during the relevant period) and still has a continuing inability to work.
I note it was not disputed that the Applicant satisfied the remaining requirements in subsection 94(1) relating to age and Australian residency.[68]
[68] See subsection 94(1) (d), (e), and (ea) of the Act.
DECISION
I set aside the decision under review.
I substitute that decision in terms that the Applicant satisfied the requirements in section 94 of the Social Security Act 1991 (Cth) and qualified for Disability Support Pension at the date of his claim, on 7 April 2015.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

........................[sgd].................................
Associate
Dated: 13 April 2017

Dates of hearing: Friday, 4 November 2016

Counsel for the Applicant: Matt Black

Solicitors for the Applicant: Legal Aid Queensland

Solicitors for the Respondent: R. McQuinlan, DHS - FOI and Litigation Team

Dates of hearing:	Friday, 4 November 2016
Counsel for the Applicant:	Matt Black
Solicitors for the Applicant:	Legal Aid Queensland
Solicitors for the Respondent:	R. McQuinlan, DHS - FOI and Litigation Team