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

[2020] AATA 8

Morrow and Secretary, Department of Social Services (Social services second review) [2020] AATA 8 (2 January 2020)

Division:GENERAL DIVISION

File Number(s):      2019/3633

Re:John Morrow

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:02 January 2020

Place:Canberra

The decision under review is affirmed.

........................................................................

Mark Hyman, Member

Catchwords

SOCIAL SECURITY – disability support pension – cancellation - spinal condition – bilateral ankle injuries – mental health – fixed flexion finger deformity – whether conditions fully diagnosed, fully treated and fully stabilised – assignment of ratings – unhelpful report from general practitioner - decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 33, 37
Social Security Act 1991, ss 26, 27, 94
Social Security (Administration) Act 1999, ss 37, 42, 80, Schedule 2

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

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

REASONS FOR DECISION

Mark Hyman, Member

02 January 2020

1. This decision is about whether the applicant, Mr John Morrow, qualifies for disability support pension (DSP). Mr Morrow was granted DSP from June 2015 and was receiving that benefit until January 2018 when the Department of Human Services – Centrelink (the Department) undertook a random sample survey review. The Department cancelled Mr Morrow’s DSP on 18 January 2018 on the basis that his impairments did not meet the relevant criteria under the Social Security Act 1991 (the Act). Mr Morrow applied for review of that decision, and the cancellation was affirmed by an authorised review officer of the Department on 22 March 2018. Mr Morrow applied to this tribunal for review of the authorised review officer’s decision; the Social Services and Child Support Division of this tribunal set aside that decision on 31 August 2018 and remitted the matter to the Department with the direction that Mr Morrow’s impairments were to be reassessed, if possible by a face-to-face Job Capacity Assessment. During this period Mr Morrow’s DSP was restored.

2. A Job Capacity Assessment was undertaken on 16 October 2018, and on 15 November 2018 the Department again cancelled Mr Morrow’s DSP. Following a request for review, an authorised review officer affirmed the cancellation decision on 8 March 2019. Mr Morrow sought further review, and the Social Services and Child Support Division of this tribunal affirmed the authorised review officer’s decision on 17 May 2019. On 19 June 2019 Mr Morrow applied to this tribunal for further review of that decision.

3. The tribunal held a hearing on 2 December 2019. Mr Morrow appeared by telephone and gave evidence. Ms Laura Hinwood, an assigned departmental advocate, represented the Secretary, Department of Social Services, the respondent in this matter.

4. The documentary evidence before the tribunal comprised documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”); three documents tendered before the hearing by Mr Morrow, namely a health summary sheet signed by Dr David Gibson, a general practitioner, dated 5 August 2019 (Exhibit A1), a copy of a prescription for Tramal dated 5 August 2019, signed by Dr Gibson (Exhibit A2) and a medical certificate of the same date, again signed by Dr Gibson (Exhibit A3); and two documents tendered before the hearing by the Secretary, namely a report by Mr Tony Chen, a clinical psychology registrar, dated 27 July 2019 (Exhibit R1) and a Medicare summary for Mr Morrow dated 5 August 2018 (Exhibit R2).

   LEGISLATION

5. The grant of DSP is governed by section 94 of the Social Security Act 1991 (the Act). Section 94 reads in part as follows:

   94(1)  A person is qualified for disability support pension if:
   (a)      the person has a physical, intellectual or psychiatric impairment; and
   (b)      the person's impairment is of 20 points or more under the Impairment Tables; and
   (c)      one of the following applies:

   (i)  the person has a continuing inability to work;

   …

6. The conjunctive drafting of the above provision means that a person must meet all of paragraphs 94(1)(a), (b) and (c) in order to qualify for DSP.

7. The “Impairment Tables” referred to in paragraph 94(1)(b) are contained in a legislative instrument authorised by subsection 26(1) of the Act: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 and made a mandatory consideration in the decision process under paragraph 94(1)(b) by section 27 of the Act. The Impairment Tables set out tests of permanence and severity of impairment. In order to rate a person’s impairment under the Impairment Tables a decision-maker must first determine that the impairment in question is permanent. The Impairment Tables are preceded by some preliminary material, including in Part 2 of the Determination a set of Rules for Applying the Impairment Tables (the Rules). Subsection 6(4) of the Rules provides that an impairment is permanent if it has been fully diagnosed, fully treated and fully stabilised, and is likely to persist for more than two years. Further subsections elaborate in particular on the meaning of ‘fully treated’ and ‘fully stabilised’.

8. Each of the specific Impairment Tables that follow the Rules relates to an area of impairment (e.g. Table 4 – Spinal Function or Table 10 – Digestive and Reproductive Function) and each table is preceded by additional Rules governing how the table is to be used. The tables themselves rate impairments not according to diagnosis of a particular condition, but according to functional impact, that is, according to the degree to which the impairment being assessed affects the kinds of things a person might be expected to do in the workplace.

9. Assessing whether a particular person qualifies for DSP therefore requires first, establishing that each impairment is fully diagnosed, fully treated and fully stabilised. Once the person satisfies that test, each permanent impairment can be rated for severity under the Impairment Tables. These tests are to be applied at the time of cancellation; that is, if Mr Morrow is to qualify for DSP, I must be satisfied that he met the relevant tests on 15 November 2018: Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 (at 675).

10. Section 80 of the Social Security (Administration) Act 1999 (the Administration Act) provides, relevantly, that if the Secretary is satisfied that a payment is being paid to a person who is not qualified for it, the payment is to be suspended or cancelled.

ISSUES

1. The issues before the tribunal in this matter are:

   ·whether Mr Morrow has one or more physical, intellectual or psychiatric impairments;

   ·if so, whether those impairments together are of at least 20 points under the Impairment Tables; and

   ·if so, whether he has a continuing inability to work; and

   ·whether his DSP should be suspended or cancelled.

   THE EVIDENCE

2. Whether Mr Morrow meets the criteria required to qualify for DSP depends in particular on the medical evidence. Mr Morrow suffers from a number of medical conditions: a mental health condition; bilateral osteoarthritis of the ankles; chronic low back pain; and a fixed flexion deformity of the right middle finger. The decision deals with each of the conditions in turn.

3. A difficulty in respect of all of Mr Morrow’s conditions is that Dr Gibson, who has been Mr Morrow’s general practitioner for many years, has made a casual and somewhat dismissive assessment at a late stage of the process which does not help Mr Morrow’s case and appears to be at odds with some of the other evidence. It was that assessment that prompted the Social Services and Child Support Division of this tribunal on first reviewing the matter to set the cancellation decision aside and remit it for further consideration by the Department. In what follows, that assessment by Dr Gibson has been viewed with a degree of scepticism unless corroborated by other evidence

   Chronic low back pain

4. There is a long history of Mr Morrow suffering from back problems, with them appearing as early as 2000. A lumbar spine scan dated 5 January 2000 (T4) reports mild scoliosis, loss of disc height at L1/2, wedging of the vertebral body at L2, an osteophyte at L4 with mild loss of disc height at L3/4 and a Schmorl’s node at T11. In a treating doctor’s report dated 6 January 2000 (T5), Dr Dan Tucker, a general practitioner, noted that Mr Morrow suffered from chronic low back pain and had mild lumbar osteoarthritis. In a Centrelink medical assessment dated (apparently) 30 March 2000 (T14), Dr M Tabart, apparently a general practitioner, noted changes in the lumbar spine showing on scans; and recorded Mr Morrow’s limitations on bending, sitting, driving, lifting, and undertaking heavy work such as pouring concrete.

5. On 28 August 2007 Dr Andrew Kam, a spinal surgeon, wrote a letter supporting the early release of superannuation funds (T10). The basis for the letter was Mr Morrow’s chronic back pain, which he described as “quite severe”. A report dated 15 October 2007 from Dr Peter Burgess, an orthopaedic surgeon (T11), was plainly done for compensation reasons. It recounts how Mr Morrow came to injure his back while working as a shed erector at an airfield. The date of injury was 1 August 2006. Mr Morrow was apparently more severely troubled by his back from that date, and Dr Burgess notes that the injury limited the kind of work that he could do from that time onwards. Dr Burgess states that the injury made Mr Morrow susceptible to further injury and he was likely to suffer an increased rate of “wear and tear” on his back. Mr Morrow explained in oral evidence that he received workers’ compensation for the back injury, but that this stopped in 2013, leaving him in difficult financial circumstances.

6. A management plan for Mr Morrow dated 25 June 2013, signed by Dr Irene Rosul, a general practitioner acting for Dr Gibson, who was away at the time (T12), assessed Mr Morrow as able to work 5 days a week, 8 hours a day, provided he refrained from lifting and pushing. In a DSP medical report dated 3 July 2013 (T13), Dr Gibson identified Mr Morrow as suffering from “dysfunctional lumbar spine”, with onset at 9 October 2007 (“injured lifting steel beam”), with symptoms consisting of chronic low back pain, and functional impacts comprising loss of endurance and an inability to push, pull or lift heavy items. Treatment was analgesia (Tramal), NSAIDs (Mobic) and physiotherapy.

7. A CT scan of the lumbar spine, dated 2 December 2013 (T16), reported endplate changes at L1/2, L2/3 and L3/4 with Schmorl’s nodes and disc height narrowing, associated possibly with previous Scheuermann’s disease, and posterior disc bulges at L2/3, L3/4 and L4/5, with impression on the theca at all three levels but no definite involvement of the exiting nerve roots. In a DSP medical report dated 3 December 2013 (T17), Dr Gibson repeated much of his earlier assessment at T13, with updates for the results of the CT scan (and an amendment to the date of onset, now listed as 2006). Dr Gibson completed and signed a further DSP medical report on 7 January 2015 (T21), and included some of the same information about Mr Morrow’s lower back condition. He provided much the same information in a DSP medical report dated 12 June 2015 (T26).

8. During the period 2013-2015 Mr Morrow was assessed by the Department on a number of occasions in a Job Capacity Assessment. On each occasion he was assigned a rating of 10 points under the Impairment Tables (Table 4 – Spinal Function) (T19, dated 8 January 2014; T24, dated 2 March 2015; T27, dated 28 July 2015). A further assessment on 7 November 2016 (in the course of reviews in relation to his application of 18 June 2015) had the same result (T37). As part of the review that led to cancellation of Mr Morrow’s DSP, Dr Gibson completed a further DSP medical report, dated 1 December 2017 (T43). In that report Dr Gibson listed low back pain as a condition that was generally well managed and caused minimal or limited impact on functionality. Departmental staff contacted Dr Gibson and the report of the conversation about Mr Morrow’s back (T45, dated 10 January 2018) is as follows: “chronic low back pain – reported on the 1/12/17 in report provided as no impact on functional ability, still agrees with this as far as he is aware and can recall”. A job capacity assessment dated 11 January 2018 (T46) assigned zero points for Mr Morrow’s back condition, apparently on the basis of the conversation with Dr Gibson; Mr Morrow did not attend the assessment and the rating was completed on the papers.

9. Following the remittal after review by the Social Services and Child Support Division of this tribunal (T54, dated 31 August 2018), a further job capacity assessment was conducted,  and Mr Morrow’s spinal condition was assigned 5 points under Table 4. The report of that assessment (T56) noted that Mr Morrow had been able to mobilise independently; to stand and sit unaided, sitting for 20 minutes and then standing for a further 10 minutes; to bend forward while sitting to obtain medication from his bag; while standing to bend forward to place items in his bag and then to pick it up from the floor; and to leave the assessment unaided.

10. In oral evidence Mr Morrow said that his back is sore all the time, and worse at times. He lies down a lot. He can manage activities over his head, and he can turn his head and raise himself from a chair. He has limits to being able to bend forward to pick up an object.

    Bilateral ankle injuries

11. It is common ground that in the course of his life Mr Morrow has sustained injuries to both ankles and to his right heel. A treating doctor’s report dated 4 May 2000 (T6 and T7 - received by the Department on 12 May 2000) notes a broken right ankle from 5 February 2000. Mr Binns, the treating surgeon, noted that the condition was a temporary one, and that Mr Morrow would recover in a further 6-8 weeks. In a medical assessment report done for the Department (T14, dated 30 March 2000) Dr M Tabart noted a left ankle injury from having the ankle trapped under a wheel in 1975 and a broken right ankle from February 2000. The 1975 injury had been operated on and pinned, and Mr Morrow only experienced pain if the pin was knocked. The broken right ankle had been treated by Mr Binns in three operations, a plate and screws had been inserted, and Mr Morrow could now start to put limited weight on the ankle.

12. When assessed in a job capacity assessment in 2013 (T15) Mr Morrow was reporting osteoarthritic pain in both ankles. The CT scan dated 2 December 2013 (T16) confirms early osteoarthritis on the right, and the DSP medical report completed by Dr Gibson on 3 December 2013 (T17) lists “minor OA right ankle” as a condition that was well managed and caused little functional impact. Dr Gibson’s further DSP medical report dated 7 January 2015 (T21) lists “OA right ankle” as part of his primary disabling condition, along with low back pain, giving a motor vehicle accident at the age of 17 as the onset (without identifying which of the two conditions that incident related to). Job capacity assessments on 8 January 2014 (T19) and 2 March 2015 (T24) assigned zero points to the condition under the Impairment Tables (Table 3 – Lower limb Function); in the latter case the assessor noted that Mr Morrow reported walking to the interview (a distance given as 2.6 km) and standing unassisted for an hour. Dr Gibson’s DSP medical report dated 12 June 2015 (T26) listed “arthralgia ankles” as part of the second disabling condition (again, in partnership with Mr Morrow’s back condition). A job capacity assessment completed on 28 July 2015 (T27) repeated the information in the previous assessment and arrived at the same rating.

13. In the job capacity assessment undertaken on 7 November 2016 (T37) the assessor relied entirely on earlier assessments by others, assigning zero points and noting that no further information was to hand. In the DSP medical report dated 1 December 2017, done as part of the review leading to cancellation of the benefit (T43), Dr Gibson listed “bilateral ankles ORIF [scilicet; open reduction with internal fixation] with early OA” as the condition most affecting Mr Morrow. Treatment was given as “nil” and current symptoms as “pain ankles esp R”. When contacted for further information on 10 January 2018 (T45), Dr Gibson advised that Mr Morrow mobilises independently, unaided and could stand for at least 10 minutes; Dr Gibson was not aware of any limitations on his mobility and so far as he could recall, thought Mr Morrow could walk up steps. The job capacity assessment (T46) done on the basis of this information concluded that the condition should once again be assigned zero points. In the later job capacity assessment done after remittal and dated 8 November 2018 (T56), the assessor noted Mr Morrow’s standing, walking and climbing capacity as demonstrated at the assessment, and from that and information from Mr Morrow himself, assigned zero points.

14. In oral evidence Mr Morrow said that he broke his left ankle when he was 16, and then his right ankle about 20 years ago. He also shattered his heel in January 2017. He now uses a walking stick to ease the impact on the ground. With his walking stick he can walk about 1 km, and using the stick and a handrail he can still walk up steps. Mr Morrow reported having lost his walking stick at one point, and having managed without for a period (including at the time he was assessed following the remittal).

    Mental health condition

15. The onset of mental health problems for Mr Morrow appears to be about the middle of 2014. A medical certificate dated 28 July 2014 (T20) signed by Dr Gibson, lists “insomnia, depressed mood” as one of his conditions, and the DSP medical report by Dr Gibson dated 7 January 2015 includes depression and anxiety as a condition with little functional impact. From shortly before that time Mr Morrow started seeing a psychologist, Ms Jo Krause, who wrote open letters on 20 January 2015 (T23) and again on 16 June 2015 supporting his DSP application, noting that she had been treating Mr Morrow; that he had begun sessions with her in September 2014; that he presented with depression and anxiety; and that he was significantly affected by chronic pain. In the DSP medical report that he completed on 12 June 2016 (T26) Dr Gibson listed depression as the condition most affecting Mr Morrow, noting chronic pain and separation from his wife as relevant factors.

16. A DSP medical report completed by Dr Mitzi-Jane Liddle (T28), a clinical psychologist, received by the Department on 21 August 2015, records a diagnosis of ‘adjustment disorder with depressed mood”, describes current treatment as cognitive behaviour therapy, interpersonal therapy and antidepressants (Luvox) and attaches a letter from Dr Liddle, of the same date (T29). In the letter Dr Liddle explains her diagnosis; sets out Mr Morrow’s symptoms at the time; explains some of the context and background to his mental health issues; and notes that Ms Krause’s treatment was having some success and had produced improvements in his mood and stability. A further note from Ms Krause, dated 15 September 2016 (T35) details Mr Morrow’s continuing issues with depression. On 28 October 2016 the Department sought further information from Ms Krause (T36), who described Mr Morrow’s difficulties with activities of daily living – with self-care, social interactions, concentration, organisation and in the workplace. The job capacity assessment made on 7 November 2016 (T37) assigned a rating of 10 points under Table 5 – Mental Health Function, largely on the basis of the information Ms Krause had provided.

1. In the DSP medical report issued in the context of the review of Mr Morrow’s DSP (T43, dated 1 December 2017), Dr Gibson listed depression as a condition that was well controlled and of minimal functional impact and noted that he had prescribed no medication. The Department contacted Ms Krause to gather further information, but she had moved away and had not seen Mr Morrow for a year; she thought that his condition would have been unchanged. In the job capacity assessment that followed (T46, dated 11 January 2018) a zero rating was assigned, based on the information provided by Dr Gibson. In the job capacity assessment following remittal (T56, dated 8 November 2018) the assessor noted that the only reliable information was more than two years old. It was not possible to assign a rating above zero because there was not enough information available to do so with any certainty. A zero rating was made.

2. Mr Morrow has more recently taken up sessions once again with a clinical psychologist, Mr Tony Chen. Mr Chen wrote a report dated 27 July 2019 (Exhibit R1) noting that he had seen Mr Morrow for six sessions, that he had “psychosocial distress” in the context of family and financial issues and limited functional capacity, but did not suffer from an acute depressive disorder. The note focuses most on efforts to limit Mr Morrow’s intake of alcohol.

3. In oral evidence Mr Morrow said that he became depressed when he separated from his wife and when his workers’ compensation came to an end and his income dropped sharply. After their separation his wife remarried and moved away, making it more difficult for him to see his daughters. He developed a good relationship with Ms Krause, but she moved away. He spoke to her a few times afterwards by telephone, but there was a substantial gap before he started seeing Mr Chen. Mr Morrow said he lives alone, presently in a tent at the caravan park; he has a few friends at the caravan park and a few elsewhere in Dubbo; he has difficulty concentrating sometimes, for example on a movie, and is conscious of the poor treatment he has received from the government. He said he is not given to loss of temper and the like. He has not taken medication since 2014 for his mental health issues (Luvox gave him nausea). What Mr Chen said about him he described as accurate but not reflecting how he is every day. Ms Krause’s report is a more accurate reflection of how life is for him.

   Fixed flexion deformity of right finger

4. The documentary record includes mention of a problem in Mr Morrow’s hand: Dr Gibson’s DSP medical report dated 3 December 2013 notes “fixed flexion deformity R middle finger” as condition which is well managed and of little functional impact; Ms Krause refers to visible problems with Mr Morrow’s hands; in a handwritten letter dated 17 November 2015 (T30) Mr Morrow mentions a broken finger, which he said hampered his ability to write. In a summary medical report dated 5 September 2016 (T35) Dr Gibson included a reference to “fracture; finger(s) – fixed flexion deformity R middle finger”. Later documents such as job capacity assessments refer to the condition, but without assigning a rating or else assigning a rating of zero points.

5. In oral evidence, Mr Morrow said that his finger was fused in a curve, making it hard for him to pick things up or to write. He often uses his left hand to carry things.

   CONSIDERATION

6. To succeed in his application for DSP, Mr Morrow must meet the tests set by the three paragraphs in subsection 94(1) of the Act.

   Does Mr Morrow have one or more impairments?

7. It is common ground that Mr Morrow has impairments. I find that he meets paragraph 94(1)(a) of the Act.

   Are Mr Morrow’s impairments of 20 points or more under the Impairment Tables?

8. To be given any rating for severity, each of Mr Morrow’s impairments must meet the permanence criteria under the Impairment Tables, that is, at the time of cancellation, each must have been fully diagnosed, fully treated and fully stabilised, and expected to continue for at least two years. Mr Morrow’s conditions are considered below in turn.

   Chronic low back pain

9. Mr Morrow’s back condition is well understood. It is established through medical reports and scans that he has an injury at the L2/3, L3/4 and L4/5 vertebrae. The injury has continued in the current condition over an extended period. It is common ground that it is fully diagnosed, fully treated and fully stabilised, and I so find.

10. In a number of assessments Mr Morrow was assigned a rating of 10 points for his spinal condition under Table 4 – Spinal Function (T15, T19, T27, T37), including in a First Review by this tribunal (T31). More recently, the condition was assigned zero points (T46) or 5 points (T56). I am not willing to rely on the report of Dr Gibson from 1 December 2017 (T43), as it is clear that he completed the report in the most cursory fashion, gave assessments at odds with earlier evidence, and generally showed minimal familiarity with Mr Morrow. But the job capacity assessment at T56 is another matter. That assessment, conducted by an occupational therapist and a psychologist, cannot easily be disregarded. Neither assessor is a medical specialist, but the Rules for applying the Impairment Tables provide guidance on how a rating is to be arrived at. Subsection 7(1) requires that information from health professionals and other work capacity information is to be taken into account, and subsection 7(2) further states that a person may be asked to demonstrate abilities described in the Tables. Mr Morrow was present in person at the assessment recorded in T56, and two people trained in relevant professional fields recorded his capacities as they observed them. For my purposes that is evidence at one remove but the tribunal is not bound by the rules of evidence (paragraph 33(1)(c) of the AAT Act), and I did not have the opportunity to gather the evidence at first hand because Mr Morrow appeared by telephone. The evidence of the assessors is therefore the best corroborative evidence available to me.

11. It is also the case that in oral evidence at the hearing Mr Morrow largely confirmed the evidence of the assessors. Table 4 assigns a rating of 5 points where a person has (relevantly) difficulty bending to knee level and straightening up, and 10 points where a person (relevantly) is unable to bend forward to pick up a light object at knee height. From his own description, Mr Morrow fits the 5 point rating better than he fits the 10 point rating. That is confirmed by the assessors, who watched him lean down to place an object in his bag on the floor and to retrieve the bag from the floor.

12. I assign Mr Morrow a rating of 5 points under Table 4.

    Bilateral ankle injuries

13. Once again, Mr Morrow’s ankle and heel injuries are clearly set out in the documentary record. He has had the appropriate treatment, and must now cope with the long-term effects of those injuries. It is common ground that these lower limb conditions are fully diagnosed, fully treated and fully stabilised, and I so find.

14. Mr Morrow attested to being able to walk with the help of a walking stick for about 1 km and to be able to walk up steps, with the help of the stick and a handrail. Table 3 – Lower Limb Function assigns 5 points to a person who is unable to stand for more than 10 minutes but can mobilise effectively with the aid of a walking stick or prosthesis. The documentary record includes no mention of a stick, which Mr Morrow explained by noting that he had lost his stick at the time he was assessed in November 2018. But that means that his use of a stick to help walk is without the corroboration that the Tables require; and in any case, the assessors in T56 noted that his standing tolerance was more than the limit of 10 minutes set in the descriptor. The assessors also noted that he walked to his appointments, and that he was able to leave the interview and walk down the steps without assistance.

15. On the best information I have available, Mr Morrow does not meet the 5 point rating under Table 3. I assign him zero points under that Table.

    Mental health

16. Dr Liddle mad a formal diagnosis of Mr Morrow’s mental health condition in August 2015, and that might have been expected to remain of continued relevance. Ms Krause’s account of her treatment of Mr Morrow, and her summary of his difficulties in coping with ordinary activities of daily living, would encourage the conclusion that his condition was permanent and should receive perhaps a moderate disability rating. But Mr Chen’s report at Exhibit R1 is much more recent, and comes two years after Ms Krause last saw Mr Morrow. I cannot disregard it, even if it suggests a significant discontinuity between Mr Morrow’s mental health in early 2017, when Ms Krause left, and mid-2019, when Mr Chen prepared his report. Mr Chen’s report is significantly after the date of cancellation (15 November 2018), but it reflects six sessions of treatment - and therefore more than a fleeting encounter - and it relates to a period extending back towards the cancellation date. It is the best evidence available to me.

17. It is notable that Mr Chen, contrary to the view of Ms Krause and Dr Liddle, declines to make a diagnosis of a mental health condition of any clinical significance, saying that Mr Morrow “did not present as having an acute depressive disorder”, being bright in mood more often than not, being without sleeping problems, being motivated and able to enjoy life. That is at odds with earlier evidence (which reports insomnia, mood disturbances and feelings of hopelessness), but, once again, it is recent evidence from an allied health professional, and all I can go on if I am to follow the requirements of the Tables, which demand that evidence regarding a condition be corroborated by a suitable health professional. Mr Morrow told a story different from that of Mr Chen, but it was not markedly different and the differences were without recent corroboration.

18. Despite Dr Liddle’s 2015 diagnosis, I cannot arrive at a finding that Mr Morrow’s mental health condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation. That means that I cannot assign a rating under Table 5 – Mental Health Function.

    Fixed flexion deformity of right finger

19. It is again common ground that Mr Morrow’s finger injury was fully diagnosed, fully treated and fully stabilised at the time of cancellation of his DSP. The condition has been well understood for an extended period, and I find that it met the permanence criteria in the Impairment Tables.

20. Table 2 – Upper Limb Function assigns a rating where a person has various levels of difficulty with “most of” a range of activities, such as picking up or carrying heavy objects, handling small objects, using a pen or pencil and the like. On Mr Morrow’s own evidence he has some difficulty with writing, and by implication he may have similar difficulties with other activities requiring fine motor control from his right hand; but his left hand and arm are unaffected, and I could not conclude, on the available evidence, that he has difficulties with “most of” the listed activities, even at the 5-point level.

21. I assign Mr Morrow zero points under Table 2.

    CONCLUSION

22. Mr Morrow has a total of 5 points under the Impairment Tables. He does not meet paragraph 94(1)(b) of the Act, and he is therefore not qualified for DSP.

23. Under section 80 of the Administration Act where a person is not qualified for a benefit, or the benefit is not payable, the benefit is to be suspended or cancelled. Suspension is the usual action where a person’s lack of qualification or payability is likely to be temporary; where, as here, the lack is likely to last for a protracted period or even indefinitely, cancellation is the appropriate course. Mr Morrow’s DSP is accordingly cancelled.

24. Mr Morrow’s case has not been assisted by some of the medical evidence, which at times has been cursory or contradictory or inconsistent. Mr Morrow may wish to assemble a more complete and consistent body of medical evidence if he chooses to apply for DSP once again.

51.      

52.      

53.      

54.      

55.      

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member M Hyman.

........................................................................

Associate

Dated: 2 January 2020

Date(s) of hearing:	2 December 2019
Applicant:	By telephone
Solicitors for Respondent:	Ms Laura Hinwood, Department of Human Services