NXHR; Secretary, Department of Social Services (Social services second review)
[2022] AATA 791
•14 April 2022
NXHR; Secretary, Department of Social Services (Social services second review) [2022] AATA 791 (14 April 2022)
Division:GENERAL DIVISION
File Number(s): 2019/7521
Re:Secretary, Department of Social Services
APPLICANT
NXHR And
RESPONDENT
DECISION
Tribunal:Member G Hallwood
Date: 14 April 2022
Place:Adelaide
The decision under review is remitted to the Applicant for reconsideration in accordance with the Direction that:
(a)the Respondent’s claim for disability support pension is to be reassessed on the basis that she satisfies ss 94(1)(a), (b) and (c) of the Social Security Act 1991 and has done so since the date of claim, being 18 April 2018. This means that subject to all other requirements of the Social Security Act 1991 being met, NXHR is eligible to receive the disability support pension from the date of claim.
...................................[SGND].....................................
Member G Hallwood
Catchwords
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether the Respondent has an impairment - whether Respondent’s conditions were fully diagnosed, fully treated and stabilised during the qualification period – whether Respondent’s conditions attracted an impairment rating of at least 20 points – whether Respondent had a continuing inability to work – decision under review remitted
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
Cases
Crossland v Secretary, Department of Family and Community Services [2004] AATA 864
Eid & Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2013] AATA 558 (5/8/13) (2013) 138 ALD 180.
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Hamal v Department of Social Security (1993) 18 AAR 137 (1993) 30 ALD 517
Harris v Secretary, Department of Employment & Workplace Relations [2007] FCA 404 (22 March 2007)
Hudson and Secretary Department of Family and Community Services [2000] AATA 502
Netherwood & Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 331.
Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Re Li & Secretary, Department of Employment & Workplace Relations [2007] AATA 1606; 96 ALD 769.
Re Secretary, Department of Social Security & Busstra (1997) [1997] AATA 1011; 3(2) SSR 14.
Re Tlonan and Department of Social Security (1997) 24 AAR 467
Secretary, Department of Families, Housing, Community Services & Indigenous Affairs v Harris [2010] FCA 360
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Secretary, Department of Family & Community Services v Michael [2001] FCA 1811 ; (2001) 116 FCR 500
Secretary, Department of Social Security & Pusnjak [1999] FCA 994, 56 (2000) ALD 444.
Ulukut and Secretary, Department of Social Services [2014] AATA 399
Secondary Materials
DSM-V: Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 4th and 5th eds)
REASONS FOR DECISION
Member G Hallwood
INTRODUCTION
From her late teens NXHR, who is now in her fifties, has suffered from what doctors and psychologists have generally described as anxiety and depression. Her mother, her aunt, and both of her daughters have also suffered from mental health conditions. On top of this NXHR has spinal and upper limb conditions that affect her ability to work. These conditions, she believes, if combined with her mental health conditions, disable her to the extent that she is prevented from working and qualifies her for a disability support pension (“DSP”). At some time, probably in 2018, NXHR reported to police that she had been sexually assaulted and raped by her former boyfriend. A key question in this matter is whether, at the time of her DSP application, NXHR was suffering from anxiety and depression as described for many years, or if she was suffering from undiagnosed and untreated post-traumatic stress disorder. If undiagnosed and untreated, these mental health conditions could not be assessed against the impairment criteria in relation to this DSP application.
On 18 April 2018, the Respondent, NXHR, lodged a claim for DSP.[1] NXHR’s claim included a list of conditions:
[1] Exhibit 1, pages 114-144.
a)Chronic lower back pain;
b)Bilateral sciatica;
c)Neck pain;
d)Shoulder pain;
e)Bilateral arm and hand pain with inner arm aching;
f)Depression;
g)Anxiety; and
h)Insomnia.[2]
[2] Exhibit 1, page 138.
On 2 June 2018, Centrelink rejected the DSP claim[3] and on 22 July 2019, an authorised review officer (“ARO”) affirmed that decision.[4]
[3] Exhibit 1, page 306.
[4] Exhibit 1, page 12.
On 11 October 2019, the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) set aside the decision finding that NXHR satisfied paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 (“the Act”) and that subject to all of the other requirements of the Act being met, NXHR is eligible to receive a disability support pension from the date of claim.[5]
[5] Exhibit 1, page 4.
On 11 October 2019, the Secretary, Department of Social Services lodged an application for review with the General Division of the Administrative Appeals Tribunal.[6] This application was heard on 7 May 2021. The Secretary was represented by Mr Cummings. NXHR was represented by Ms Riley. NXHR appeared before the Tribunal. Three medical witnesses appeared and gave evidence by telephone: Dr Munn, occupational physician; Dr Ewer, psychiatrist; and Dr Strobel, psychiatrist.
Prior to the hearing, the following documents were provided to the Tribunal and have been admitted as evidence: 310 pages of T-Documents (Exhibit 1); 373 pages of supplementary medical documents (Exhibit 2); 15 pages of Pharmaceutical Benefits Scheme summary for NXHR (1/1/17 to 20/1/20) (Exhibit 3); a request of (30/3/20) and report from Dr Munn (17/8/20) (Exhibit 4); a report from Dr Ewer (24/6/20) (Exhibit 5); a request for a report (27/5/20) and a report from Dr Strobel (6/4/21) (Exhibit 6); a report from Dr JW Smith dated 14/1/21 together with a Centrelink report form from Dr Smith dated 3/4/18 (Exhibit 7); and NXHR’s pain diary of April through June 2018 (Exhibit 8). The Tribunal’s decision has regard to the documented evidence as well as the oral evidence given at the hearing.
ISSUES
The issue which arises in this matter is whether NXHR was qualified for DSP when her claim was lodged, 18 April 2018, or within the following 13 weeks. This requires consideration of the requirements set out in s 94 of the Social Security Act 1991, and in particular:
a)whether NXHR has an impairment;
b)if yes, whether NXHR’s impairment attracts a rating of 20 points or more on the Impairment Tables; and
c)if yes, whether NXHR has a continuing inability to work.
[6] Exhibit 1, pages 1-2.
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.
The relevant legislation and legislative instruments are the Act, the Social Security (Administration) Act 1999 [Cth] (the Administration Act); the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 [Cth] (the Impairment Tables); and the Social Security (Active Participation for Disability Support Pension) Determination 2014 [Cth] (the POS Determination).
To medically qualify for DSP, a person must meet the qualification criteria set out in subsections 94(1)(a) to (c) of the Social Security Act 1991 (“the Act”):
94 Qualification for disability support pension
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;
ii.the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; …
To qualify for a DSP, it is necessary to meet all of these criteria, and the impairment must be present at the time of the claim or within the following 13 weeks (“the qualification period”), as set out in schedule 2 clause 4(1) of the Social Security (Administration) Act 1999.
Medical evidence, such as reports or certificates, that are produced after the qualification period are only relevant to a claim for DSP to the extent that they provide evidence or corroboration to the claimant’s condition during the qualification period.[7]
[7] Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].
Subsection 94(2) of the Act requires that to qualify for DSP, the person will have a continuing inability to work:
(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 the program of support was wholly or partly funded by the Commonwealth; 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 all 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.
Subsection 94(5) of the Act contains the definition of ‘work’ for these purposes:
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.
In cases where a person’s impairment is severe, the person is not required to have participated in a program of support. The term ‘severe impairment’ is explained in subsection 94(3B) of the Act:
(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.
Example 1: A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2: A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3: A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Determination”).
With respect to consideration of functional impact, the purpose of the Impairment Determination must be appreciated. In Ulukut and Secretary, Department of Social Services,[8] at [5], Senior Member Isenberg explained the operation of the Impairment Tables in that:
The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination
[8] [2014] AATA 399.
The Tribunal’s responsibility is to assess NXHR’s eligibility for the DSP and decide the matter afresh, as opposed to reviewing the earlier decision for error.[9]
[9] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 68.
CONSIDERATION
NXHR is 54 years of age and lives in her own house in regional South Australia. She has two daughters, both of whom live independently. NXHR completed year 11 in High School and has undertaken further training including horticulture and women’s studies. Her work history consists of manual jobs including factory work, market gardening, cleaning and leather work. She has not worked in paid work since 2008.
NXHR applied for a DSP on 18 April 2018. The qualification period in this matter is 18 April 2018 to 18 July 2018.
Issue 1 – Does NXHR have an impairment?
In order to be considered for the DSP, it is necessary to have an impairment.
An impairment is defined in section 3 of the Impairment Determination as ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition’. The impairment can be physical, intellectual, or psychiatric.
Medical reports, imaging and assessment documentation were entered into evidence, dating from 2008 through to beyond the qualification period, confirming NXHR’s long-term physical (chronic pain in lumbar and cervical spine and shoulders) and psychiatric (anxiety and depression) impairments. On 3 April 2018 Dr John Smith, GP, provided a medical certificate describing long term conditions which ‘significantly impact on [NXHR’s] capacity to work’ as: ‘chronic low back pain / arthritis’; ‘cervical neck and shoulder pain / stiffness’; and ‘depression, anxiety, insomnia’. A further certificate from Dr Smith dated 12 April 2018 adds a medical condition ‘which significantly impact[s] on [NXHR’s] capacity to work’ as left sciatica.
The Secretary does not dispute that NXHR has a physical, intellectual, or psychiatric impairment. Based on the evidence, the Tribunal is satisfied that NXHR has a “physical, intellectual and psychological impairment” that can affect a person’s ability to work.
For that reason, the Tribunal finds that NXHR satisfies the first criterion which is contained in s 94(1)(a) of the Act.
Issue 2 – Do NXHR’s impairments rate 20 points or more under the Impairment Tables?
Determining impairment ratings is a two-step process. Firstly, the condition must be considered permanent. Secondly, the functional impairment is determined by considering the relevant Impairment Table.
Subsections 6(3) and (4) of the Impairment Determination specifies that for a condition to be assigned an impairment rating under the Impairment Tables, the condition must be considered permanent. The Impairment Tables are contained in the Impairment Determination.
A condition that has been fully diagnosed, treated and stabilised is accepted as being permanent if the resulting impairment is more likely than not to persist for more than two years.[10]
[10] Subsection 6(4) of the Impairment Determination.
NXHR’s claim included a number of conditions: chronic lower back pain; bilateral sciatica; neck pain; shoulder pain; bilateral arm and hand pain with inner arm aching; depression; anxiety; and insomnia.[11] The Tribunal considered each of the conditions.
[11] Exhibit 1, page 138.
Spinal conditions
NXHR’s spinal conditions include chronic lower back pain, sciatica and neck pain.
For NXHR’s spinal conditions to be assessed against the Tables, the Tribunal must be satisfied that NXHR’s spinal conditions are fully diagnosed, fully treated and stabilised with the resulting impairment more likely than not to persist for more than two years. The parties are not in dispute regarding the permanence of NXHR’s spinal conditions; however, the background of diagnosis, treatment and prognosis are of some value in determining the functional impact of NXHR’s conditions and these are explored below.
Medical referrals and reports in evidence dating as far back as 2012 describe chronic pain, left sided back pain, and sciatica.[12] In a report dated 10 October 2014, Dr David Mah, GP, diagnosed spinal discogenic degeneration with right sided sciatica.[13] On 29 August 2016, Dr J Robinson, Radiologist, identified left posterior disc/ osteophyte complex at C6/7, mild bony narrowing of the neural exit foramen of the right C4 nerve root.[14] On 24 June 2017, Dr Mah diagnosed chronic degenerative neck and back.[15] On 10 April 2018, Dr M Reid, radiologist, in a CT scan report describes minor degenerative change at C6-7, mild left foraminal stenosis and mild canal stenosis, mild central canal & right foraminal stenosis at L4-L5, minor L5-S1 lateral recess narrowing with contact to the S1 nerves.[16]
[12] Exhibit 2 (Dr Marshall), page 195 and Exhibit 2 (Dr Kaur), page 201.
[13] Exhibit 1, page 225.
[14] Exhibit 1, page 246.
[15] Exhibit 1, page 240.
[16] Exhibit 1, page 248.
Treatment has continued over many years and has included: pain medication (panadeine forte [17] and endone[18]); chiropractic;[19] and physiotherapy.[20]
[17] Exhibit 2, page 317.
[18] Exhibit 1, page 243.
[19] Exhibit 2, page 322.
[20] Exhibit 2, page 333.
Dr John Smith’s letter to Centrelink dated 14 June 2018 describe cervical spine radiculopathy and lumbosacral sciatica as NXHR’s primary issues. The letter states:
Her conditions are all fully diagnosed, her conditions have been fully treated and are stable, expected be unchanged over the next 2+ years.[21]
[21] Exhibit 1, page 249.
The Tribunal is satisfied on the evidence available that NXHR’s spinal conditions are fully diagnosed, fully treated and stable; and that the resulting impairment is more likely than not to persist for more than two years. Therefore, the spinal condition is permanent and will be assessed against the Impairment Tables. There is no dispute about which table is most suitable for NXHR’s spinal conditions. The Introduction to Table 4 describes it as the table “to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck”.[22]
[22] Part 3 – The Tables of the Impairment Determination.
The Introduction to Table 4 states that the diagnosis of the condition must be made by an appropriately qualified medical practitioner. Various GP’s have diagnosed NXHR’s spinal conditions which have continued to affect her since 1998. These diagnoses have been supported by medical imaging reports prepared by medical radiologists. Most relevantly to this DSP claim: on 3 April 2018 Dr John Smith, MBBS GP, diagnoses chronic low back pain and chronic neck pain; on 10 April 2018 Dr M Reid, radiologist, in a computerized tomography (CT) scan report observes - minor degenerative change at C6-7- mild left foraminal stenosis and mild canal stenosis, mild central canal & right foraminal stenosis at L4-L5 minor L5-S1 lateral recess narrowing with contact to the S1 nerves; and, on 12 April 2018 Dr John Smith diagnosed left sciatica. The Tribunal is satisfied on the evidence available that the diagnosis of the spinal conditions has been made by an appropriately qualified medical practitioner.
Table 4 looks at a person’s impairment in terms of functional impact on activities involving spinal function, allocating points to various levels of functional impact. The levels of functional impact are: ‘no functional impact’; ‘mild functional impact’; ‘moderate functional impact’; ‘severe functional impact’; and ‘extreme functional impact’. Each is supported by a set of descriptors that are used to identify the level of functional impact. Below are the mild, moderate and severe functional impact descriptors which the Tribunal considers are the most relevant to this matter.
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
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 (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. 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).
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.
NXHR told the Tribunal that she no longer drives a car due to her poor eyesight. Prior to that she had a capacity to travel in a car from Gawler to Elizabeth, which is a distance of almost 17 kilometres and a time of about 20 to 30 minutes. NXHR said the physical pain limited her capacity to sit in or drive a car and that she had “pretty well stopped driving” in 2018.
NXHR told the Tribunal that everything she uses in her home is below shoulder height: “reaching up hurts”, “brushing my teeth hurts”, “I do a swinging action to put pegs on the clothes on the line, it hurts hanging them out but I do it”. NXHR also described difficulties bending forward and told the Tribunal that she has to get on her knees to vacuum the carpets.
The Tribunal found NXHR’s statements in this regard to be credible and they are consistent with medical reports and Centrelink descriptions of NXHR’s presentations since 2014. NXHR also kept a pain diary in 2018 after a friend suggested it may help her with her DSP application. On 25 April 2018, NXHR reported: “Woke at 3am with very painful persistent nagging pain in middle to lower back. It is coming consistently in waves of pain shooting through me. Taking Endone to see if it will help. Has spread down my lower back now”. On 29 April 2018, NXHR relevantly recorded: “Bent down to pick up dog bowl and a shoot of pain went across my back making it impossible to get bowl. Had to sit down to pick it up”. On 30 April NXHR reported: “Sharp pain in middle back that went all day affecting everything I attempted to do”. On 5 May 2018 NXHR recorded: “Very strong lower back pain. Can’t make bed, vacuum, all jobs that need to be done”.
The Introduction to Table 4 states that ‘Self-report of symptoms alone is insufficient’, and ‘There must be corroborating evidence of the person’s impairment’. Examples of corroborating evidence for the purposes of this table are also provided in the introduction relevantly including, but not limited to: a report from the person’s treating doctor; and 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.
On 4 July 2014, Dr David Mah, GP, described back pain with right leg sciatica and neck pain referring into right arm.[23] After physiotherapy, chiropractic treatment, psychiatric and psychological intervention; on 6 May 2016, Dr Mah in a letter to Centrelink describes NXHR’s back and neck pain recommending an application for a DSP.[24]
[23] Exhibit 1, page 216.
[24] Exhibit 1, page 235.
On 14 June 2016 in a Job Capacity Assessment (JCA) – Adriana, an exercise physiologist, describes chronic back and neck pain with limitations on capacity including an inability to tolerate physical work with repeated movements. Adriana also mentions, although related to bursitis, capsulitis and tendonitis that NXHR can’t vacuum, has difficulty mopping, lifting and overhead work.[25]
[25] Exhibit 1, page 176.
Following further treatment, on 24 June 2017, Dr Mah again writes to Centrelink describing, amongst other things, NXHR’s chronic degenerative neck and back and identifying that she is physically unable to work due to her existing physical conditions.[26] Dr Mah had been NXHR’s treating GP since September 2001.
[26] Exhibit 1, page 240.
On 3 April 2018 Dr John Smith, GP, described NXHR’s condition of chronic low back pain as causing constant severe pain and stiffness. In the same medical capacity form Dr Smith describes NXHR’s chronic neck pain (including shoulder) as resulting in constant neck and shoulder pain and stiffness. Dr Smith indicated that he had not completed a formal functional assessment, nor had he used the Tables in his consideration of the functional impact of NXHR’s spinal conditions. These functional impacts are consistent with Dr Reid’s radiologist findings from a CT scan dated 10 April 2018 including: minor degenerative change at C6-C7 - mild left foraminal stenosis and mild canal stenosis; mild central canal & right foraminal stenosis at L4-L5; and minor L5-S1 lateral recess narrowing with contact to the S1 nerves.
A JCA dated 15 February 2019 prepared, for the Department for the review of this matter, by Cheryl (qualifications not stated) describes the permanent condition as having a moderate impact on NXHR’s activities involving her spinal function and recommends a rating of 10 points under Table 4.[27] In this JCA, the detailed assessment relating to Table 4 found that NXHR:
1)is usually able to sit in or drive a car for at least 30 minutes (albeit on some days she is not able to drive due to spinal pain);
a.while unable to sustain overhead activities, because this aspect was also assessed against the upper limb rating for Table 2, did not apply the spinal condition to this aspect;
b.had stiffness in her neck that restricted moving her head to look in all directions;
c.was unable to lean forward to pick up light objects, but had to kneel on the floor to undertake tasks that would normally require bending such as vacuuming and cleaning the toilet;
d.was able to get out of a chair without assistance.
[27] Exhibit 1, pages 195-198.
A report dated 17 August 2020 (more than two years beyond the qualification period) by Dr Josh Munn, occupational physician, noted that he observed NXHR as having a normal range of movement in her cervical spine when not being formally examined. His report goes on to state that on formal examination she had forward flexion of 45o, extension of 30o, lateral flexion of 30o and rotation of 45o bilaterally noting that NXHR was much more cautious and slow with the formal examined range. Dr Munn’s report notes that at the time of his examination of NXHR, she reported most of her then limitations were due to vision problems. Dr Munn’s report provides a diagnosis of cervical spondylosis primarily at C6/7 and lumbar spondylosis with degenerative disc pathology at L4/5 and L5/S1.[28]
[28] Exhibit 4, page 5.
Dr Munn provided oral evidence at the hearing and was asked about the difference between NXHR’s range of motion when formally examined as compared to when she was just answering questions. Dr Munn told the Tribunal that NXHR had a similar range of motion, but the nature of her movement was significantly different and far more cautious. Dr Munn’s written and oral statements relating to her range of motion are consistent with NXHR having restrictions tilting her head back and turning to look over her left and right shoulders and also low back pain and sciatica limiting forward bending and lifting.
As earlier noted, NXHR’s evidence to the Tribunal is consistent with and corroborated by the evidence of her pain diaries, contemporary reports from the treating doctors, radiologists, and the capacity restrictions described in the JCA of 14 June 2016. The validity of this evidence was also the basis for the recommendations contained in the JCA dated 15 February 2019. Her evidence relating to restrictions of her spinal function is also largely consistent with the report of Dr Munn.
The Impairment Determination at 10(5) states that “where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table”. In this case, the cervical condition as well as her shoulder condition contributes to NXHR’s inability to sustain overhead activities. The Introduction to Table 4 states: “In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.” For these reasons, the Tribunal has chosen not to use the descriptor (a) relating to sustained overhead lifting in relation to Table 4 functions.
The Tribunal is satisfied based on corroborated evidence that NXHR was, at the time of her DSP application: able to sit in or drive a car for at least 30 minutes; and, had difficulty moving her head to look in all directions in particular tilting her head back, and turning her head to look over her shoulders.
For these reasons the Tribunal is satisfied there was, at the time of her application, a moderate functional impact on NXHR’s activities involving spinal function and 10 points are allocated against Table 4.
Upper limb conditions
In order to be assessed against the Tables, the Tribunal must be satisfied that NXHR’s upper limb conditions are fully diagnosed, fully treated and stabilised with the resulting impairment more likely than not to persist for more than two years.
Medical reports and imaging reports over several years have identified shoulder and upper limb conditions including bilateral carpal tunnel syndrome[29], bilateral supraspinatus and subscapularis tendinopathy[30], and chronic bilateral bursitis[31]. On 19 May 2017, in a medical certificate, Dr Mah states that NXHR has chronic bilateral shoulder bursitis which is an exacerbation of an existing condition since 2016 and that is likely to deteriorate within two years.[32] On 24 October 2017 in a medical certificate, Dr Adrian Borg describes NXHR’s chronic arm pain as temporary although goes on to say that the condition is likely to persist.[33]
[29] Exhibit 2, Dr Mah, page 224.
[30] Exhibit 1, Dr Wong, page 231.
[31] Exhibit 1, Dr Mah, page 240.
[32] Exhibit 1, page 238.
[33] Exhibit 1, page 242.
On 3 April 2018, Dr John Smith describes NXHR’s symptoms as including constant neck and shoulder pain and stiffness stating that these conditions were permanent. Dr Smith describes past and current treatment for these conditions as the same.[34] An X-ray report from Dr K Lai dated 11 February 2015 identifies degenerative changes of the AC joint bilaterally and type 2 acromion bilaterally.[35]
[34] Exhibit 1, page 244.
[35] Exhibit 1, page 245.
Investigations and treatment for neck pain radiating through NXHR’s shoulder into her arms has included: GP attendance with Dr Mah in March 2014;[36] nerve conduction referral to Dr Jannes, neurologist in March 2014; [37] five chiropractic treatments by Dr Lisa Brown between March and August 2014;[38] referral for physiotherapy by Dr Sau Peng Cheah, GP in August 2014;[39] physiotherapy treatment from November 2014 through to March 2015;[40] further physiotherapy in April 2016;[41] cortisone injection in August 2016;[42] physiotherapy treatment in October 2016;[43] referral by Dr Mah for further nerve conduction study in July 2017;[44] and review by Dr Borg in October 2017.[45]
[36] Exhibit 2, page 224 (S3)
[37] Exhibit 2, page 224 (S3).
[38] Exhibit 2, page 322 (S3).
[39] Exhibit 2, page 90 (S2).
[40] Exhibit 2, pages 89 and 91 (S2).
[41] Exhibit 2, pages 348 (S3).
[42] Exhibit 1, pages 176.
[43] Exhibit 2, pages 106 (S2).
[44] Exhibit 2, pages 266 (S3).
[45] Exhibit 1, pages 242.
A DSP medical assessment dated 25 April 2018 and performed by an unnamed occupational therapist (OT) states that NXHR’s conditions were not fully diagnosed, treated and stabilised.[46] The assessment was of medical eligibility at date of claim; 18 April 2018, including 13 weeks thereafter. The OT’s rationale was that there was no medical evidence indicating the claimant had attempted reasonable engagement in interventions that may assist in improving the impacts of the conditions. This report states that the relevant medical evidence considered by the OT was the reports of Dr Smith dated 3 and 12 April 2018, and the Radiology report of Dr Reid dated 10 April 2018. The report also notes that there was no contact with the claimant, no contact with the treating health professional, and no contact with the Health Professional Advisory Unit within the Department. The departmental form-based reports of Dr Smith, the OT referred to, diagnose cervical neck pain / arthritis as causing constant neck and shoulder pain and stiffness. Dr Smith notes the condition commenced in 1998, and, in the limited space provided on the form for past, current and planned treatment he has hand-written respectively: “Analgesia”; “Endone”; and “As Above”. Dr Reid’s report is of a CT scan he performed as a radiologist and does not contain any details in relation to treatment but provides observations in relation to the scan. It appears to the Tribunal that the OT relied on two single page forms completed by the treating GP, together with a radiologist’s single page CT scan report, all prepared within a two-week period; in order to determine that there was no evidence the claimant had attempted reasonable engagement in interventions that may assist in improving the impacts of the conditions. The Tribunal is not satisfied that a DSP medical assessment relying on such a narrow evidence base is of value in determining whether a person has attempted reasonable engagement in appropriate treatment interventions.
[46] Exhibit 1, pages 207.
In a letter to Centrelink dated 14 June 2018, Dr Smith stated that NXHR’s conditions are all fully diagnosed, fully treated and were stable and expected to be unchanged over the next two years plus.[47]
[47] Exhibit 1, page 249.
Based on the evidence of NXHR’s GP’s and radiology reports the Tribunal is satisfied that NXHR has impairments to her upper limbs that are fully diagnosed, fully treated, and fully stabilised and unlikely to improve within the next two years. Based on the medical evidence provided, the Tribunal is satisfied that these impairments were permanent within the qualification period. Therefore, the upper limb condition is permanent and will be assessed against the Impairment Tables. There is no dispute about which table is most suitable for NXHR’s upper limb conditions. The Introduction to Table 2 describes it as the table “to be used where the person has a permanent condition resulting in functional impairment when performing activities involving use of the hands or arms”.[48]
[48] Part 3 – The Tables of the Impairment Determination.
For the purpose of this matter the mild, moderate and severe functional impact descriptors are set out below:
5
There is a mild functional impact on activities using hands or arms.
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
10
There is a moderate functional impact on activities using hands or arms.
(1) The person has difficulty with most of the following:
(a) picking up a 1 litre carton full of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c) holding and using a pen or pencil;
(d) doing up buttons or tying shoelaces;
(e) using a standard computer keyboard;
(f) unscrewing a lid on a soft-drink bottle.
20
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
At the hearing, NXHR described difficulties cleaning her teeth because of pain in her arms. She said she was not able to perform activities overhead or above shoulder height. At the hearing NXHR was asked about her ability to do up buttons. She told the Tribunal that she did not wear clothes with buttons because it was her fashion choice. She said she dresses by sliding her arms in and pulling the tops over her head with difficulty. She said she struggles with smaller objects and regularly drops her mobile phone due to numbness in her hands. She finds it hard to sleep because of pain in her right arm. She has lots of trouble with pushing, pulling and lifting. She is able to wash the dishes, use her iPad to contact friends, make the bed – with difficulty because her arms ache, when changing the sheets, she has to do a bit then leave it and come back to it because of the pain. She plays games on her iPad but can’t play game after game because she gets shooting pains in her arms (inside and outside from her elbow to her shoulder). While she was able to use an iPad, she was unable to use a computer due to pain. She had to stop using gel pens for colouring (a mindfulness exercise her psychologist recommended) because of the pain. She can’t clean the bathroom as she can’t mop – she says she never has clean floors. She sweeps the floor every second or third night, but she has to do it slowly with breaks. She said the need to leave things undone became obvious when her daughter left home in 2020. When she prepares food, she usually makes vegetarian stir fry – breaking the mushrooms with her hands so that she doesn’t have to cut things.
The Introduction to Table 2 includes that:
·Self-reporting of symptoms is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oA report from the person’s treating doctor;
oA report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (eg arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of the upper limb);
oA report from an allied health practitioner (eg physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact; results of diagnostic tests (eg X-Rays or other imagery);
oResults of physical tests or assessments.
Treating doctor reports from July 2014 have described variously as NXHR’s: neck pain referring to her right arm;[49] ongoing right shoulder pain;[50] chronic severe shoulder pain[51]; right sided sub acromial bursitis;[52] chronic bilateral bursitis[53]; chronic arm pain;[54] and, chronic neck pain including shoulder.[55]
[49] Exhibit 1, Dr Mah, page 216.
[50] Exhibit 2, Dr Cheah, page 90.
[51] Exhibit 1, Dr Mah, page 235.
[52] Exhibit 2, Dr Mah, page 103.
[53] Exhibit 1, Dr Mah, page 240.
[54] Exhibit 1, Dr Borg, page 242.
[55] Exhibit 1, Dr Smith, page 243.
In a report by Dr Josh Munn, occupational physician, dated 17 August 2020 Dr Munn reports: in relation to her shoulders NXHR has bilateral subacromial impingement syndrome with rotator cuff tendinopathy and subacromial and subdeltoid bursitis; and in relation to her cervical spine, she has cervical spondylosis primarily at C6/7.[56] Dr Munn also indicated that NXHR’s pain perception and behaviours had been contributed to by her mental health issues. While well outside the qualification period which ended on 18 July 2018, this medical specialist report is in accord with the diagnosis of conditions associated with the upper limb conditions and is directed to the time of NXHR’s application. In oral evidence Dr Munn confirmed his views regarding the causes of the functional restrictions to NXHR’s upper limbs.
[56] Exhibit 4, Dr Munn’s Report, page 5.
On 12 March 2015 in a discharge letter to Dr Cheah, Mr Matthew Soinine, physiotherapist, describes NXHR’s shoulder condition as supraspinatus and subscapularis tendinopathy and indicates she has lifting limitations and has a home exercise program.[57] On 21 April 2016 Mr Alex Barricelli, physiotherapist, described NXHR’s shoulder condition as right shoulder rotator cuff tendinopathy and bursitis and saying that she had made a small amount of progress after three appointments. Mr Barricelli indicated that NXHR should avoid aggravating activities although does not specify what aggravated NXHR’s shoulder pain.[58] The Tribunal notes that these allied health reports confirm that there is a functional impact of NXHR’s shoulder conditions but are not specific in their details of that impact.
[57] Exhibit 2, page 333.
[58] Exhibit 2, page 343.
In formally assessing NXHR’s active range of movement in her shoulders, Dr Munn describes forward flexion of 170o bilaterally, abduction 90o right and 170o left, external rotation of 70o, internal rotation 70o bilaterally, and extension 45o bilaterally.[59] At the hearing Dr Munn noted that while NXHR was far more guarded with her movements when being formally assessed for her range of movement, there was little material difference in her range when she was relaxed and unaware she was being assessed.
[59] Exhibit 4, Dr Munn’s Report, page 4.
On 5 February 2012 Dr S Wong, radiologist, in an ultrasound report regarding NXHR identified bilateral supraspinatus and subscapularis tendinopathy.[60] An x-ray report by Dr K Lai, radiologist, on 5 February 2012 identified early AC joint degenerative changes.[61] On 22 August 2016, Dr WK Chong, radiologist, in an x-ray and ultrasound report described supraspinatus tendinosis, thickened echogenic overlying bursa (chronic bursitis) which impinges on abduction.[62] This observation accords with Dr Munn’s later findings.[63]
[60] Exhibit 1, page 231.
[61] Exhibit 1, page 245.
[62] Exhibit 1, page 239.
[63] Exhibit 4, Dr Munn’s Report, page 4.
In determining the functional impact of her condition on NXHR’s activities using hands or arms, the Tribunal is satisfied that her statements in relation to the descriptors in Table 2 are corroborated by the medical evidence. NXHR struggles with most daily activities requiring the use of the hands and arms including cleaning the house, personal hygiene including brushing her teeth, shopping, preparing food, hanging out washing, but did not satisfy the required four of the six descriptors necessary in order for a moderate functional impact.
NXHR’s evidence supported that she struggled picking up heavier objects, often fumbled with and dropped smaller items (eg mobile phone), and had difficulties reaching up or out to pick up objects or hang washing. NXHR’s evidence in relation to her ability to doing up buttons was that she did not have clothes with buttons because she preferred zips. The Tribunal is satisfied that NXHR function matches the “mild” functional impact descriptors (a), (b) and (d) set out in Table 2 and this is three of the four descriptors.
As NXHR meets most of the descriptors of a mild functional impact, the Tribunal is satisfied there was, at the time of her application, a mild functional impact on NXHR’s activities using her hands and arms and 5 points are allocated against Table 2.
Mental Health Conditions
The medical reports before the Tribunal confirm NXHR’s oral and written evidence, and it is not disputed by the parties, that she has suffered from mental health conditions for over twenty years.
In brief, NXHR is a 55-year-old woman with a family history of mental health issues on her mother’s side. She described a dysfunctional home with a father that was a gambler and an alcoholic. She described witnessing and experiencing traumatic events starting in her childhood. These events include witnessing her father driving his car into trees, her mother yelling and smashing things, telling NXHR she was stupid. NXHR told the Tribunal that she was terrified of her mother and father. More recently NXHR experienced assault by the father of her own daughter when she was pregnant aged 28. She also reported being raped and sexually assaulted by her ex-partner in 2018.
In order to be assessed against the Tables, the Tribunal must be satisfied that NXHR’s mental health conditions were fully diagnosed, fully treated and stabilised with the resulting impairment more likely than not to persist for more than two years.
The introduction to Table 5 – Mental Health Function requires the diagnosis of the condition to be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
The Applicant contends that NXHR’s mental health conditions were not fully diagnosed; and therefore, not fully treated and fully stabilised during the qualification period. The Applicant put to the Tribunal that there was no basis for the view contained in Dr Strobel’s letter of 24 February 2016 finding that NXHR had a ‘long standing history of anxiety and depression’ and that the AAT1 finding that “at least three psychiatrists” had made diagnoses to that effect was baseless.
If NXHR’s condition was fully diagnosed by the end of the qualification period, it also must have been fully treated appropriately for the condition and further reasonable treatment would be unlikely to lead to significant functional improvement in the next two years.
Section 6(7) of the Impairment Determination defines reasonable treatment and relevantly sets out 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; and
d)is regularly undertaken or performed; and
e)has a high success rate; and
f)carries a low cost to the person.
A JCA dated 21 July 2010 prepared by Rhina, a rehabilitation counsellor, describes NXHR’s condition as “Depression”.[64] The assessment notes that NXHR has symptoms of anxiety and depression and had been treated with medication, counselling through Headspace, and GP reviews.[65]
[64] Exhibit 1, page 152.
[65] Exhibit 1, page 154.
A JCA dated 16 August 2012 prepared by Cheryl, unstated qualification, describes NXHR as having “an evidenced depression and anxiety condition (Medical certificates from Dr Smit, 6.6.12 and 31.7.12)”. Treatment described was prescribed medication (Lovan x 3 per day and Xanax as required) and GP reviews.[66]
[66] Exhibit 1, page 161.
A Treating Doctor’s Report prepared by Dr Mah for Centrelink dated 12 August 2013 provides, under the heading ‘Diagnosis’: “adjustment disorder with background of mixed anxiety and depression”, describing the diagnosis as “Confirmed” and the date of diagnosis (if confirmed) as 21 April 2010. This report refers to a “previous diagnosis by [a] psychiatrist in 2010 and now recurring…”. Dr Mah described treatment as including regular psychologist visits, psychiatrist review, antidepressant medication and tranquilisers.[67] The Tribunal has no reason to doubt Dr Mah’s contemporaneous reporting of the psychiatrist diagnosis.
[67] Exhibit 2, pages 302-303.
On 10 February 2014 Dr Mah referred NXHR to Dr Antoinette Bearman, psychiatrist, with the diagnosis “ongoing symptoms of anxiety/depression” noting that NXHR had started taking Endep, 10mg at night.[68]
[68] Exhibit 2, page 220.
Dr Bearman’s clinical notes from 14 May 2014 describe NXHR’s condition under the heading ‘Diagnosis’ as “Anxiety and panic disorder with depression. Post alcohol abuse problems”. Dr Bearman discusses medication as including Kalma 0.5mg up to 2 per day, Panadeine Forte, Lovan 20mg 4 times per day noting a need to look at stopping Kalma – with a review appointment in 2-3 months.[69]
[69] Exhibit 2, page 312.
On 26 May 2014, Dr Bearman wrote to Dr Mah providing a history of NXHR’s condition and stating: “My impression is that she has an anxiety disorder with some panic symptoms and depression which is treated”.[70]
[70] Exhibit 2, page 318.
On 4 July 2014 Dr Mah completed a Medical Report for Mobility Allowance in relation to NXHR. Relevantly he describes NXHR’s psychiatric disabilities as “anxiety and depression, panic disorder”.[71] Further reports for mobility allowance provided by Dr Mah on 19 August 2014 and 10 October 2014 describe NXHR’s conditions as “anxiety, depression, panic attacks in a crowd, claustrophobia”, and “anxiety and depression, social anxiety” respectively.[72]
[71] Exhibit 1, page 217.
[72] Exhibit 1, pages 221 and 225.
On 24 February 2016, a letter from Dr Jörg Strobel, treating psychiatrist, to Dr Mah describes NXHR’s condition as a lifelong history of anxiety and depression. Dr Strobel stated that there was no suggestion to change medication and that NXHR had adopted practices of gratitude and appreciation in regard to herself and the world.[73]
[73] Exhibit 1, page 233.
On 15 March 2017, Dr Mah’s Mental Health Assessment and Plan diagnoses NXHR as having anxiety, major depression and severe stress; with treatment including psychotherapy and medication (Lovan and Diazepam). This plan goes on to describe NXHR’s social history and states NXHR has “Long term history of anxiety and depression”. [74]
[74] Exhibit 2, pages 275-278.
A report to Dr Mah dated 4 October 2017 from Peter Dowling, clinical social worker/ psychotherapist, sets out treatment since May 2017 as including CBT, interpersonal therapy, psycho-education, behaviour interventions, relaxation strategies, and skills training. Peter Dowling describes some success with relaxation strategies but being “unable to reduce anxiety and depression”.[75]
[75] Exhibit 2, page 348.
On 3 April 2018 Dr John Smith, GP, diagnoses depression, anxiety and insomnia and treatment as having included medication and psychologist. Dr Smith described the condition as permanent.[76]
[76] Exhibit 1, page 243.
On 14 June 2018, within the qualification period, in a letter to Centrelink Dr Smith states that NXHR’s conditions were fully diagnosed, fully treated, and stable with no expectation they would change over the next two plus years.[77]
[77] Exhibit 1, page 249.
On 29 April 2019, some 12 months after NXHR’s DSP claim, Dr Strobel wrote to Dr Deepali Pradhan, GP, with an update on NXHR’s condition. This is the first report that notes NXHR’s sexual assault: “She just ended an 18-month relationship with a partner who was sexually abusive. It took Police involvement to extricate herself from the relationship. It was awful”. In describing her condition Dr Strobel said: “NXHR suffers a chronic mental illness with predominant anxiety and depression, when particularly stressed also showing OCD features”. He also described treatment as Fluoxetine 80 mg (for 20+ years), 6 Panadeine for pain, and Diazepam at night.
On 24 June 2020 Dr Marty Ewer, psychiatrist, provided an Independent Psychiatric Evaluation of NXHR’s mental health condition. The Tribunal notes that this report is more than two years after NXHR lodged her claim for DSP. In his report, Dr Ewer diagnosed “based upon a reasonable degree of medical probability that NXHR is suffering from a post-traumatic stress disorder” (PTSD).[78] Dr Ewer goes on to state that NXHR has significant symptoms of anxiety and depression “which probably don’t require a separate diagnosis” and “she was probably also suffering from a somatic symptom disorder with predominant pain”. Dr Ewer’s report also discusses whether NXHR’s PTSD had been fully treated finding that “NXHR’s post-traumatic stress disorder had not been optimally treated prior to the qualification period” and providing that treatments which may have been appropriate and reasonable are trauma focussed therapies such as trauma focussed cognitive behaviour therapy or eye movement desensitisation reprocessing. Dr Ewer’s report also states that such treatments are likely to see NXHR’s psychiatric problems improve but not fully resolve.[79]
[78] Exhibit 5, Dr Ewer’s Report, page 24.
[79] Exhibit 5, page 25.
Dr Ewer appeared before the Tribunal to give expert evidence. He is a highly experienced and qualified psychiatrist with extensive medicolegal experience and particular expertise in the diagnosis and treatment of PTSD.
Dr Ewer stated that NXHR completed some psychiatric measuring instruments for him and that he had reviewed a number of medical and Centrelink assessments relating to NXHR as well as spending about 50 to 60 minutes interviewing NXHR. It was put to Dr Ewer that he had been the first person to diagnose NXHR with PTSD and that her current psychiatrist, had screened NXHR for PTSD and not found that she was suffering from that condition. Dr Ewer stated that he was very mindful that he was the first to diagnose PTSD but that he was very confident in that diagnosis. Dr Ewer asserted that screening instruments were not able to diagnose or rule out a disorder unless it was integrated into a total management program with a thorough examination. Dr Ewer told the Tribunal that he was not surprised that the previous treating psychiatrist, Dr Bearman, had not diagnosed PTSD as NXHR had not been raped at the time she ceased seeing Dr Bearman. Dr Ewer told the Tribunal that he was unsure when NXHR was sexually assaulted as she had been unable to recall, but that one of Dr Strobel’s reports from 2019 had indicated that it had occurred in the previous 18 months suggesting the sexual assault had occurred around the time of NXHR’s DSP claim. Dr Ewer stated that research shows that 50% of females that have been raped develop PTSD, that trauma is cumulative, and that NXHR had experienced trauma as a child, later when she was pregnant, and most recently when she was sexually assaulted and raped by her ex-partner. Dr Ewer said it would be surprising if NXHR did not have PTSD.
Dr Ewer explained to the Tribunal that, had NXHR been diagnosed with PTSD or a traumatic disorder at the time of her claim for DSP, trauma focussed therapies would have been the optimal treatments for these disorders; and with the application of those treatments there would have been a positive chance of substantial improvement in NXHR’s functional capacity.
On 9 March 2021 and almost three years after NXHR’s DSP claim was lodged, Dr Strobel provided a medico-legal report for this matter.[80] In relation to the PTSD diagnosis, Dr Strobel considers Dr Ewer’s view and asserts that when he assessed her, he found that NXHR was suffering from anxiety and depression rather than PTSD. Dr Strobel states: “If we assume that Dr Ewer picked up symptoms correctly which I could not verify, which however was at a different time point, which in turn does not necessarily mean that one of the two observations is false”.[81]
[80] Exhibit 6, Dr Strobel Report 9 March 2021.
[81] Exhibit 6, Dr Strobel Report 9 March 2021, page 5.
Dr Strobel also provided oral evidence to the Tribunal. He is a highly experienced and qualified psychiatrist with extensive clinical experience and has worked in the role of Clinical Director of Country Health.
Dr Strobel affirmed that he still agreed with all he had stated in his report of 6 April 2021. He confirmed that he believed NXHR had received reasonable treatment. When it was put to Dr Strobel that Dr Ewer was convinced NXHR needed trauma focussed treatment, Dr Strobel told the Tribunal that he believed that was a red herring and that NXHR had been traumatised was not the same as her suffering from PTSD. He said that he did not doubt his diagnosis of anxiety and depression stating that this was a long-term diagnosis at least from 2010. Dr Strobel told the Tribunal that it was only after he had seen that NXHR’s treatments were not going to succeed in improving her condition that he confirmed she was fully diagnosed, fully treated, fully stabilised in April 2018. This had not been Dr Strobel’s position in relation to her condition previously in February 2016.
The Tribunal must decide whether within the qualification period, NXHR was fully diagnosed, fully treated and fully stabilised and unable to work or train over the next two years. The question of whether NXHR was suffering from Depression and Anxiety in the qualification period or from PTSD is a consideration of material interest to this matter. Dr Ewer put forward in oral evidence that it would not have been easy to diagnose PTSD prior to NXHR’s sexual assault. It is not clear from any of the evidence when that assault occurred. NXHR could not remember either in her oral evidence to the hearing, or at the times she was interviewed by either Dr Ewer or Dr Strobel.
One thing that NXHR was clear about was that she met her ex-partner on New Year’s Eve 2017. She also told the Tribunal that she had a relationship with this partner over a period of, variously, 14 months and 18 months. NXHR lodged her DSP claim on 18 April 2018, less than four months into a relationship of somewhere between 14 and 18 months. The qualification period would take that up to seven months into the relationship which ended when NXHR went to the police to report being sexually assaulted and raped.
There are three medical reports, certificates or letters in evidence written by Dr John Smith, then treating GP, during the period from New Year’s Eve 2017 and the end of the qualification period 18 July 2018. While each of these reports describe NXHR’s mental health condition, none of these reports indicate that she had recently been sexually assaulted or raped.[82] A face-to-face Employment Services Assessment (ESA) report completed on 18 April 2018 by Cheryl (qualification not stated) does not report NXHR as having spoken of sexual assault or rape.[83] It is not until a report of Dr Strobel dated 29 April 2019 that NXHR’s sexually abusive relationship with her ex-partner is mentioned.
[82] Exhibit 1, pages 243, 244, and 249.
[83] Exhibit 1, pages 183-185.
While it is not totally clear to the Tribunal when NXHR was subjected to sexual abuse and rape, the evidence indicates that it was late in her relationship with her ex-partner and beyond the qualification period for DSP.
It is well established that access to DSP is based on the conditions as they are, and evidence as it was available, at the date of application and within 13 weeks of that date.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Member Breen said at [34]:[84]
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, 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). … 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.
[84] [2012] AATA 922.
Dr Ewer is the only psychiatrist that diagnosed NXHR as having suffered from PTSD and then almost two years after the qualification period. Dr Ewer also told the Tribunal that he was not surprised that the previous treating psychiatrist, Dr Bearman, had not diagnosed PTSD as NXHR had not been raped at the time she had ceased seeing Dr Bearman.
As it is unlikely that NXHR had been subject to sexual abuse and rape within the qualification period, and her treating psychiatrist at the time of her DSP application is confident that she was suffering from anxiety and depression, the Tribunal is satisfied the long standing and consistent held medical view that she was suffering from anxiety and depression was correct at the time of her claim and within the qualification period.
The Tribunal is satisfied on the above evidence that NXHR had a ‘long standing history of anxiety and depression’ and that “at least three psychiatrists” made diagnoses to that effect.
It was not in dispute that, had anxiety and depression been the correct mental health diagnosis in the qualification period, NXHR’s condition was fully treated and fully stabilised. For completeness, the Tribunal considered this.
On 3 April 2018 Dr John Smith, NXHR’s then treating GP, provided a Centrelink medical capacity form relevantly describing NXHR as having depression, anxiety and insomnia for which she was receiving medication (Lovan 20mg, Endep 10mg) and counselling from a psychologist. Dr Smith described the condition as permanent having persisted for 18 years and planned treatment was the same as current treatment.[85]
[85] Exhibit 1, page 243.
On 14 June 2018 Dr John Smith, GP, in a letter to Centrelink relevantly describes NXHR’s depression and dependence on pain medication. Dr Smith details current medication as including Endep 10mg x 2 per day before bed and Lovan 20mg x 4 per day. Dr Smith states in relation to NXHR:
“Her conditions are all fully diagnosed, her conditions have been fully treated and are stable now and expected to be unchanged over the next 2+ years.
Given the nature of her current treatment with narcotic analgesics and the side effects associated she cannot undertake employment, education or other activities over the next 2+ years.
All reasonable avenues of treatment have exhausted and it is unlikely that any further treatment will produce any functional improvement.”
As previously reported, Dr Strobel in his oral evidence confirmed that he believed NXHR had received reasonable treatment and, only after he had seen that NXHR’s treatments were not going to succeed in improving her condition, he confirmed she was fully diagnosed, fully treated, fully stabilised in April 2018. Dr Strobel was advising NXHR’s GP on her mental health conditions at the time of her DSP claim.
The ESA report dated 18 April 2018 describes NXHR’s depression as permanent with a date of onset as 18+ years ago.
On 25 April 2018, an Occupational Therapist provided a Disability Support Pension Medical Assessment Recommendation stating that NXHR’s depression was not fully treated or stabilised as the medical evidence does not indicate reasonable engagement in interventions.[86] The Tribunal notes that this report states that the relevant medical evidence considered was: Verification of Medical Conditions form; Dr Smith’s Centrelink Medical Capacity form of 12 April 2018 which only describes treatment for NXHR’s left sciatica; Dr Smith’s Centrelink Medical Capacity form dated 3 April 2018 which states that NXHR’s depression is permanent (likely to persist for two years or more), has a date of onset of 18 years, and has a treatment regime consisting of Lovan 20mg and psychologist, but does not mention whether NXHR has engaged in interventions or not; and, a Radiology (CT) report by Dr Reid from 10 April 2018 which considers NXHR’s spinal condition. The Tribunal also notes that neither NXHR nor treating health professionals were contacted in preparing this medical assessment recommendation which the Tribunal considers of little or no value in identifying whether the mental health conditions were fully treated and fully stabilised.
[86] Exhibit 1, pages 206-207.
The Tribunal favours the medical evidence of Dr Strobel and Dr Smith as NXHR’s treating psychiatrist and GP during the qualification period in terms of the contemporaneous diagnosis of anxiety and depression. Dr Ewer’s diagnosis of PTSD was based on an assessment some two years later and probably at least partially as a result of a sexual assault and rape that occurred after the qualification period.
On the basis of the medical evidence of Dr Strobel and Dr Smith, the Tribunal is satisfied that at the time of her DSP claim NXHR’s mental health conditions were fully diagnosed, fully treated and fully stabilised and unlikely to improve within the next two years. The Tribunal is satisfied that these impairments were permanent within the qualification period. Therefore, the mental health conditions are permanent and will be assessed against the Impairment Tables. The Introduction to Table 5 states: “Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment)”. The Tribunal considers this is the correct table to use in this matter.
While all of the descriptors were compared and considered by the Tribunal, for the purpose of these reasons the mild, moderate and severe impact descriptors in Table 5 are set out below.
5
There is a mild functional impact on activities involving mental health function.
(1) The person has mild difficulties with most of the following:
(a) self-care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b) social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d) concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e) behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f) work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
10
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a) self-care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b) social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c) interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d) concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e) behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f) work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
20
There is a severe functional impact on activities involving mental health function.
1. The person has severe difficulties with most of the following:
(a) self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b) social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c) interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d) concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e) behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f) work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
The Introduction to Table 5 instructs: In using Table 5 evidence from a variety of sources should be considered in determining which rating applies to the person being assessed.
NXHR described to the Tribunal having lost her friends along the way. She said she would take things the wrong way and push them away. When thinking back to 2018, NXHR said she may have had one night out a month with her then boyfriend. He didn’t live with her but did come over to her house. NXHR said she doesn’t get together with family. In 2018 she didn’t celebrate birthdays, Christmas or Mothers’ Day as she was always arguing with family. She said the last friend she had would have a coffee with her until they had a falling out. NXHR believes the conflict is a lot to do with her mental health issues. She describes being so stressed out she would smash her head against the wooden doorframes. She told the Tribunal that she still does this sometimes. She said, “I’ve had so many suicidal thoughts”.
When NXHR was asked how hard it was to go to unfamiliar places, she replied that she used to go with a friend to a beach house but would not do a lot of things on her own. She said walking her dogs helps her to talk to people.
The Introduction to Table 5 also relevantly sets out:
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
A Mental Health Assessment and Plan prepared by Dr Estelle Smit, GP, on 8 March 2012 considers NXHR’s mental status and finds relevantly: Thinking - jumps from one subject to another; Sleep – bad; Attention/Concentration – not good, easily distracted and feels apathetic; Memory – short term memory terrible, long term memory good; Anxiety Symptoms – shaky, palpitations, gets snappy, smashed head against wall because of frustration and pulling hair; Suicidal Ideation – yes; Suicidal Intent – no.[87]
[87] Exhibit 2, pages 207-208.
In a report dated 19 August 2014, Dr Mah described NXHR as having severely limited social skills due to significant panic attacks in the past when using public transport.[88]
[88] Exhibit 1, page 220.
On 19 September 2014, Dr Bearman described NXHR’s concentration as variable.[89]
[89] Exhibit 2, page 331.
On 15 March 2017, Dr Mah provided a Mental Health Assessment Plan describing NXHR’s anxiety and depression symptoms as including: Mood – very down; Sleep – initial insomnia; Appetite – poor; Motivation/Energy – low; Attention/Concentration – not good, Memory – short term memory terrible, long term good; Anxiety Symptoms – shaky, palpitations, need for tranquilisers, going over previous events in her mind; Suicidal Ideation – recurrent ideation with stressors but thinks about her protective factors; Suicidal Intent – nil.[90]
[90] Exhibit 2, page 276.
Dr Ewer’s report of 24 June 2020 (almost two years outside the qualification period) responds to a question seeking Dr Ewer’s view of the extent to which NXHR would have experienced difficulties caused by her mental health condition in relation to the descriptors in Table 5. Dr Ewer’s response was:
“During the qualification period NXHR had mild difficulties of self-care and independent living due to her psychiatric problems.
During the qualification period NXHR had moderate functional impact of social and recreational activities. NXHR was rarely socialising. She actively avoided people.
NXHR had moderate functional impact on interpersonal relationships during the qualification period. She had difficulty making and keeping friends.
NXHR had moderate functional impact on her concentration during the relevant period.
NXHR’s behaviour, planning and decision making were significantly and frequently disturbed and this is consistent with a severe functional impact in this area. She was preoccupied with her physical problems.
NXHR was unfit for paid employment during the relevant period and this equates to a severe functional impact on work.”[91]
[91] Exhibit 5, pages 29-30.
Dr Ewer’s oral evidence did not conflict with the evidence in his report.
Dr Strobel’s report of 9 March 2021 responded to questions about the impact of NXHR’s mental health conditions on her ability to function during the period 18 April 2018 to 18 July 2018:
“In relation to the impairment purely associated with her mental health I consider that she is in the moderate range with challenges to make friends and sustain relationships, lacking concentration with rapidly declining coping skills as pressures are applied leading to escalating anxiety, sleep disturbance and resultant lack of energy, e.g. creating vicious cycles. The negative loops as discussed above are amplified by her physical health limitations.”[92]
[92] Exhibit 6, Dr Strobel report 9 March 2021, page 5.
Dr Strobel’s oral evidence did not conflict with the evidence contained in his report.
Based on the evidence of NXHR corroborated by the evidence of appropriately qualified medical practitioners directed specifically to her condition at the time she lodged her application, and within the qualification period, the Tribunal is satisfied that NXHR had, as a minimum, moderate difficulties with:
b)Social/recreational activities and travel;
c)Interpersonal relationships;
d)Concentration and task completion;
e)Behaviour, planning and decision making; and
f)Work/training capacity.
This represents five of the six of the moderate descriptors which is most of them. NXHR may have had severe difficulties with the last two of the descriptors but two does not represent most of the severe descriptors as would be required for the Tribunal to find there is a severe functional impact on NXHR’s activities involving mental health function.
For the reasons above the Tribunal is satisfied there was, at the time of her application, a moderate functional impact on NXHR’s activities involving her mental health function and 10 points are allocated against Table 5 – Mental Health Function.
Overall rating against the Impairment Tables
The Tribunal is satisfied that, at the time she lodged her application and within the qualification period: NXHR’s spinal conditions had a moderate functional impact on activities involving spinal function and is allocated 10 points against Table 4; her upper limb conditions had a mild impact on her activities involving the use of her hands or arms and is allocated 5 points against Table 2; and, her mental health conditions had a moderate functional impact on activities involving her mental health function and is allocated 10 points against Table 5.
NXHR is allocated a total of 25 points against the Impairment Tables. As NXHR’s impairment is of 20 points or more under the Impairment Tables, she meets the qualification criteria set out in subsections 94(1)(b) of the Act.
Issue 3 – Does NXHR have a continuing inability to work?
Subsection 94(3B) of the Act sets out that 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. NXHR does not have a “severe impairment” because she does not receive 20 points or more against a single Impairment Table. As NXHR does not have a severe impairment, she must satisfy the requirements of paragraphs (aa), (a) and (b) of subsection 94(2) of the Act:
(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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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 all 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.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination) sets out at section 7 that a person has actively participated in a program of support if they have participated in and complied with the requirements of the program within the relevant period – described by section 5 as the period of 36 months ending immediately before the day on which the person claimed DSP – and the person has participated for at least 18 months (547 days) in the relevant period.
NXHR is dealing with impairments related to her spine, her upper limbs, and her mental health. The Applicant submitted that any impairments that have not been assigned a rating under the Impairment Tables should not be brought into account when determining whether NXHR has a continuing inability to work. As only the impact of impairments that have been assigned an impairment rating have been taken into account by the Tribunal in considering NXHR’s capacity to undertake work or training activities during the qualification period, the Tribunal will not consider this contention further.
The Applicant has provided evidence in relation to NXHR’s participation in a program of support totalling 1,201 days between 17 April 2014 and 17 April 2018.[93] While the relevant period is between 17 April 2015 and 17 April 2018, there is no dispute between the parties and the Tribunal is satisfied that NXHR met the participation requirements set out in paragraph 94(2)(aa).
[93] Exhibit 1, page 210.
Having completed a program of support, in order to succeed with her claim, NXHR must have impairments sufficient to prevent her from doing any work or undertaking training activities that are likely to enable her to work within two years of making her DSP claim.
A number of NXHR’s medical reports from mid-May 2016 indicate she was unable to work.
On 6 May 2016, Dr Mah wrote to Centrelink thanking them for considering NXHR for DSP and stating: “She has chronic severe shoulder pain, back and neck pain where she is unable to tolerate physical work or work requiring repeated movements…”. [94]
[94] Exhibit 1, page 235.
On 24 June 2017, Dr Mah again wrote to Centrelink reiterating that NXHR was unable to perform physical work and had not been trained for sedentary work. [95]
[95] Exhibit 1, page 240.
On 24 October 2017, Dr Borg provided a Centrelink Medical Certificate that stated NXHR’s chronic arm pain, her stress, and depression were temporary conditions and also that her symptoms were likely to persist. That certificate provided that NXHR was then unable to work or study for the next week.
On 3 April 2018, Dr Smith’s medical certificate assesses that NXHR’s chronic low back pain, cervical neck pain, and depression were all permanent.[96] On 12 April 2018, Dr Smith stated that NXHR’s left sciatica was permanent.[97] On 14 June 2018, Dr Smith wrote to Centrelink detailing NXHR’s condition and relevantly her functional prognosis: “Given the nature of her current treatment with narcotic analgesics and the side effects associated she cannot undertake employment, education or other activities over the next 2+ years. All reasonable avenues of treatment have exhausted and it is unlikely that any further treatment will produce any functional improvement.”.
[96] Exhibit 1, page 243.
[97] Exhibit 1, page 244.
Dr Ewer’s independent psychiatric assessment of 24 June 2020 which the Tribunal has noted is almost two years after the DSP application considers the question “As at the qualification period, did NXHR’s functional impairments arising solely from her mental health condition prevent her from: undertaking work at least 15 hours per week or undertaking training activity within the next 2 years?”. Dr Ewer’s responses included:
“NXHR was totally incapacitated for work and she could not have worked. With treatment, she may have been able to return to work within 2 years.
NXHR would not have been well enough to have undertaken training during the qualification period. She probably would have been able to participate in training with the above treatment.
If NXHR responded well to treatment and if she then did some training, this would probably allow her to participate in a graduated return to work program. She may have reached working 15 hours per week within 2 years.” [98]
[98] Exhibit 5, page 31.
Dr Ewer’s oral evidence was in accord with his written evidence and the Tribunal notes that the treatment to which he refers is trauma focussed therapy.
Dr Munn told the Tribunal that based on her anatomical features, and not taking into account her more recent vision impairment which did not impact NXHR’s functioning until after the qualification period, NXHR could work 15 hours a week at the time of her DSP claim. Dr Munn told the Tribunal that commenting on NXHR’s mental health issues was outside his area of expertise. The Tribunal notes that Dr Munn, an experienced occupational physician, saw NXHR for an independent assessment on 17 August 2020. The only material difference in Dr Munn’s oral evidence and the evidence contained in his report of 17 August 2020 related to the calculation of the functional impact of NXHR’s conditions on activities using hands or arms.
At the hearing, in response to a question about NXHR’s capacity to work or train in April 2018, Dr Strobel told the Tribunal: “At that point I felt the chance of her getting back to employment was very close to zero”.
Subsection 94(5) defines “work” as any work that is for at least 15 hours per week at award wages or above and that exists in Australia, even if not within the person's locally accessible labour market.
On 15 February 2019, (several months after the DSP claim) a JCA was prepared by Cheryl (qualification not identified) and Kelly, a registered psychologist. As well as providing a total recommended impairment rating of 20 points, work capacity was assessed for NXHR as 8-14 hours per week baseline and 8-14 hours per week in two years.[99] The Tribunal notes that Cheryl appears to have been involved in at least three face to face assessments of NXHR since 2012 and Kelly similarly has been involved in three assessments of NXHR since 2008.
[99] Exhibit 1, pages 198-200.
On 2 October 2019, Dr Matthew Williams, NXHR’s GP since July 2019 a year after her DSP claim, answered some questions in relation to NXHR’s capacity. He stated that he was unable to look back to April 2018 but that he considered NXHR was currently unable to work or study for 15 hours per week due to the persistence and severity of her symptoms, and the likelihood of work or study creating another stressor which is likely to worsen her mental state. Dr Williams also considered it unlikely NXHR’s condition would significantly improve over the next two years.
NXHR’s treating GP at the time of her DSP claim, her treating psychiatrist at the time of her DSP claim, and two JCA assessors that have assessed NXHR over many years, all indicate that NXHR was unable to work or study for two years.
Dr Ewer also indicated that at the time of her DSP claim NXHR was unable to work or study and put that with treatment and a graduated return to work program she may have reached working 15 hours per week within 2 years. In this case NXHR’s capacity to work was dependent on treatment that had not been identified for her at the time of her claim for DSP. The Tribunal notes that even if treatment for traumatic conditions such as PTSD had been undertaken, Dr Ewer indicates that training leading to a capacity to work would be reliant on a further program of support in the form of a graduated return to work program.
The Tribunal notes that NXHR had not worked except for a brief stint of voluntary work during the decade prior to her claim despite participating in a program of support over four years. She had also managed to complete a Certificate III in Horticulture during that time. Given the evidence of her treating medical experts and long-term assessors in finding NXHR was unable to work or study at the time of her claim and over the ensuing two years, the Tribunal is satisfied that she had a continuing inability to work and met the requirements of paragraphs 94(2)(c) of the Act.
CONCLUSION
NXHR has a loss of functional capacity affecting her ability to work resulting from her physical (spinal and upper limb) and psychiatric (mental health) conditions, and, for that reason she meets the requirement contained in s 94(1)(a) of the Act.
NXHR’s spinal conditions are long standing and at the time of her application were permanent, that is, the impairment resulting from her spinal conditions was more likely than not, in the light of available evidence, to persist for more than two years. For this reason, NXHR meets subsection 6(3) of the Impairment Determination and the Tribunal has assessed NXHR’s spinal conditions as having a moderate functional impact on her activities involving spinal function and 10 points are allocated against Table 4 – Spinal Function. The Tribunal also finds that NXHR’s upper limb conditions were permanent at the time of her DSP application and allocates 5 points against Table 2 – Upper Limb Function. NXHR’s mental health conditions at the time of her DSP application were anxiety and depression which were also permanent and allocated 10 points against Table 5 – Mental Health Function. As NXHR’s impairment is 20 points or more against the Impairment Tables, she meets the requirements of s 94(1)(b).
NXHR’s impairment was not a severe impairment within the meaning of subsection (3B) and the Tribunal is satisfied that she actively participated in a program of support within the meaning of subsection (3C), and that program of support was wholly or partly funded by the Commonwealth, therefore, meeting the requirements of s 94(2)(aa). NXHR’s assessed impairment based on information available at the time of her application was, of itself, sufficient to prevent her from doing any work independently of a program of support within two years, therefore, the requirements of s 94(2)(a) are met. Her assessed impairments were also sufficient to prevent her from undertaking training activity during the next two years, and for that reason s 94(2)(b) is met. Therefore, NXHR has a continuing inability to work because of her impairment and for that reason, meets the requirements of s94(1)(c).
The Tribunal is satisfied that NXHR satisfies ss 94(1)(a)-(c) of the Act and that the decision under review should be set aside.
DECISION
The decision under review is remitted to the Applicant for reconsideration in accordance with the Direction that:
a)the Respondent’s claim for disability support pension is to be reassessed on the basis that she satisfies ss 94(1)(a), (b) and (c) of the Social Security Act 1991 and has done so since the date of claim, being 18 April 2018. This means that subject to all other requirements of the Social Security Act 1991 being met, NXHR is eligible to receive the disability support pension from the date of claim.
8. I certify that the preceding one hundred and fifty-six (156) paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood
.......................[SGND].........................
Associate
Dated: 14 April 2022
Dates of hearing: 10 May 2021
Advocate for the Applicant: Sam Cummings, Sparke Helmore Lawyers
Advocate for the Respondent: Margaret Riley, Margaret Riley Lawyers
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