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

[2020] AATA 1418

Rowe and Secretary, Department of Social Services (Social services second review) [2020] AATA 1418 (18 May 2020)

Division:GENERAL DIVISION

File Number:          2018/6681

Re:Mr Robert Rowe

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms Anna Burke AO, Member

Date:18 May 2020  

Place:Melbourne

The Tribunal affirms the decision under review.

....................[sgd]...............................................

Ms Anna Burke AO, Member

Catchwords

SOCIAL SECURITY – application for disability support pension – whether qualified –chronic fatigue syndrome (CFS), Right knee dysfunction, spinal and left shoulder dysfunction, and a mental health condition – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review affirmed

Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Secondary Materials
Guide to Social Security Law, Department of Social Services (version, release date?)

REASONS FOR DECISION

Ms Anna Burke AO Member

18 May 2020

INTRODUCTION

1. Mr Rowe (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to section 94 of the Social Security Act 1991 (the Act).

2. On 28 December 2017, Centrelink found that Mr Rowe was not entitled to the DSP, as he did not meet the requirements of the Act. Centrelink is the service provider for the then Department of Human Services, now Services Australia.

3. The application was heard on 30 March 2020. Mr Rowe was self-represented and Ms Cailin Farrell, of Sparke Helmore Lawyers, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Farrell. At the conclusion of the hearing, the Tribunal requested additional information from Mr Rowe and allowed the Respondent to comment on the additional material.

   THE ISSUES IN CONTENTION

4. The issues in contention are whether Mr Rowe:

   (a)has a physical, intellectual or psychiatric impairment;

   (b)has a condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;

   (c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (d)has a continuing inability to work.

   BACKGROUND

5. Mr Rowe is 66 years of age, divorced with three adult children and currently lives on his own. Mr Rowe completed year 11 and then commenced working in a bank for a short period before working in a partnership in his father’s cleaning business until 1994. He then commenced work as a gardener, which ended in 1996 after he suffered an injury to his knee. Mr Rowe has been effectively unemployed since 1996, although he reported he worked casually reading gas metres for three months in 2000 but could not continue due to exhaustion. In 1996 Mr Rowe commenced Bible studies and attained a certificate of Bible and Christian Ministry. Mr Rowe had previously been on the DSP before his leg injury as he was working less than eight hours per week. After his work injury he made a successful WorkCover claim, remaining on this until 2017, when he again applied for the DSP

6. On 10 November 2017, Mr Rowe made an application for DSP, citing his medical conditions as chronic fatigue syndrome (CFS), osteoarthritis right knee, back pain, irritable bladder and bowel, chronic bronchitis, anxiety, and high blood pressure.

7. On 27 November 2017 Centrelink conducted a file assessment of Mr Rowe’s DSP application and formed a view that there was insufficient evidence to assess medical eligibility, determining that Mr Rowe conditions were not fully diagnosed, treated or stabilised. This led to a decision of 28 December 2017, denying the Applicant’s claim.

8. On 7 July 2018, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink finding. The ARO awarded a total impairment rating of 5 points, stating the following:

   I have found your conditions of chronic fatigue and right knee damage are permanent and can be assigned a rating under the impairment tables.

   I have decided that a rating of five points can be assigned under impairment table 1 – functions requiring physical exertion and stamina.

   I have decided that a rating of zero points can be assigned under impairment table 3 – lower limb functions

   I have found your conditions of back pain and emphysema cannot be considered permanent.

9. On 17 July 2018 a job capacity assessment (JCA) was undertaken by Centrelink and assessed Mr Rowe’s impairments as attracting 5 points under table 1 for his chronic fatigue syndrome and nil points for his lower limb function. The JCA determined Mr Rowe had a temporary reduced work capacity of 0 – 7 hours a week while he was getting his emphysema under control and a baseline work capacity of 15 – 22 hours per week was recommended, based on mild impacts of his chronic fatigue syndrome. The JCA reported that, with disability specific intervention, Mr Rowe could build his work capacity to 23 – 29 hours a week.

10. On 3 October 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Mr Rowe’s DSP claim. The AAT Tier 1 awarded Mr Rowe an impairment rating of 10 points finding:

    Having taken all the information before it into consideration, the tribunal accepts that Mr Rowe has longstanding chronic fatigue syndrome, irritable bladder and anxiety. Mr Rowe told the tribunal that he is chronically fatigued. He lives alone and is able to manage all the activities of daily living including his own self-care on his own albeit slowly. He is able to drive for up to four hours as long as has some breaks, he is able to use public transport unassisted and he is able to walk at least 500 meters if not further depending on how he is feeling each day…The tribunal is satisfied that at the date of claim during the weeks following lodgement of the current claim Mr Rowe’s bladder irritability difficulties and psychological disorder were not fully diagnosed, treated or stabilised and so concluded that it was unable to assign any impairment points to these conditions at this time. The tribunal is satisfied that the chronic fatigue syndrome is fully diagnosed, treated and stabilised for the purposes of assessing qualification for the disability support pension and concluded that this condition rated 5 points under Table 1 – Functions requiring Physical Exertion and Stamina.

    …

    The Tribunal accepts that Mr Rowe has longstanding osteoarthritis in his right knee which has been investigated and treated; no further treatment is being considered for this condition currently...The tribunal finds that this condition is fully diagnosed, treated and stabilised for the purposes of assessing qualification for the disability support pension. The tribunal decided that at the time of lodgement of this claim for the pension there was a mild functional impact on activities using the lower limbs and concluded that this condition rated five points under table 3 – Lower Limb Function.

    …

    [T]he tribunal did not address the issue of whether Mr Rowe has a continuing inability to work as required by paragraph 94 (1)(c) of the Act.

11. On 5 November 2018, Mr Rowe sought a review of the AAT Tier 1 decision by this division of the Tribunal, stating in his application: “My medical reports are being ignored. ‘NO CAPACITY FOR WORK’ has been my diagnosis for 18 years! Mainly due to severe CFS (chronic fatigue syndrome) (Resulting, from 100 weeks of double chemotherapy in 2000 + 2003 for Hep C Virus)".

12. On 16 September 2019 Mr Rowe lodged a new DSP claim which was granted on the basis of his mental health condition and CFS being fully diagnosed, treated and stabilised. Additionally, he had been assessed as commencing a Program of Support (POS) from which he was officially exited.

13. In accordance with Schedule 2, section 4(1) of the Social Security (Administration) Act 1999 Mr Rowe’s qualification for DSP is to be determined from the date of his claim to a date 13 weeks thereafter, that being 20 November 2017 to 19 February 2018 (the qualifying period).

    RELEVANT LEGISLATION AND ISSUES

14. Section 94(1) of the Act provides that a person is qualified for a DSP if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person's impairment is of 20 points or more under the Impairment Tables; and

    (c)one of the following applies:

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

    …

15. The Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.[1]

    [1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) s 6(3)(a).

16. Section 6(4) of the Impairment Tables states that a condition is “permanent” if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    (c)the condition has been fully stabilised; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

17. The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.

18. Section 6(5) of the Impairment Tables states:

    In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (a)     whether there is corroborating evidence of the condition; and

    (b)     what treatment or rehabilitation has occurred in relation to the condition; and

    (c)     whether treatment is continuing or is planned in the next 2 years.

19. Section 6(6) of the Impairment Tables states:

    For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:

    (a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)       the person has not undertaken reasonable treatment for the condition and:

    (i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.

20. For the purposes of section 6(7), reasonable treatment is treatment that:

    (a)      is available at a location reasonably accessible to the person; and

    (b)      is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional   capacity; and

    (d)      is regularly undertaken or performed; and

    (e)      has a high success rate; and

    (f)       carries a low risk to the person.

21. The determinative issue in this review is whether, during the qualifying period of 20 November 2017 to 19 February 2018, Mr Rowe suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.

22. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.[2]

    [2] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) Part B, s 5(2).

23. Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.

24. Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.

25. It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.

26. When assessing whether someone has a continuing inability to work, Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) sets out a number of exemptions to the general requirements that a person must participate in a POS for at least 18 months in cases where a person does not have a severe impairment. A person’s impairment is considered severe if their impairment is of 20 points or more under a single impairment table.

27. A person can, on limited grounds, be exempted from the requirement to participate in a POS. The act relevantly provides:

    Part 2—Requirements for active participation

    7 Requirements for active participation

    …

    (4)    This subsection is satisfied in relation to a person and a program of support if:

    (a)The program of support was terminated before the end of the relevant period; and

    (b)        The program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.

    (5)    This subsection is satisfied in relation to a person and a program of support if:

    (a)At the end of the relevant period, the person is participating in the program of support; and

    (b)The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.

    THE TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

28. The evidence before the Tribunal included documents provided by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and supplementary T documents, as well as additional medical reports and a witness statement provided by Mr Rowe. Following the hearing, Mr Rowe provided the Tribunal with additional medical certificates and information from his disability employment service provider.

    Does Mr Rowe have a physical, intellectual or psychiatric impairment?

29. Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must have an impairment.

30. The Respondent accepts that Mr Rowe suffers from CFS, right knee dysfunction, spinal and left shoulder dysfunction, and a mental health condition. The Tribunal finds that Mr Rowe was living with impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.

31. As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.

    Does Mr Rowe have medical conditions that can be rated at 20 points or more under the Impairment Tables?

    Chronic fatigue syndrome (CFS)

32. Dr Michael Oldmeadow, physician, in a medical report dated 19 September 2011 reported that Mr Rowe developed CFS in association with interferon therapy for hepatitis C infection in 2000. He reported that Mr Rowe’s symptoms were extreme fatigue and exhaustion following limited physical or mental effort, that his sleep is unrefreshing, and concentration is difficult at all times. He also noted generalised muscle and joint discomfort and associated irritable bladder and bowel symptoms. He opined that Mr Rowe’s symptoms exacerbate with extra physical or mental activity and continue to limit his capacity for work and social pursuits.

33. Dr Oldmeadow in a report 24 January 2018 confirmed Mr Rowe has been his patient since September 2011, presented with complex symptoms consistent with a diagnosis of CFS and associated right knee related chronic regional pain syndrome. He reported that Mr Rowe had undertaken a structured graded exercise program working on pacing activities and management of anxiety issues. He noted attention had been paid to Mr Rowe’s sleep hygiene as his sleep had been complicated by the existence of a well-established irritable bladder syndrome. Dr Oldmeadow observed that Mr Rowe’s bladder condition had not responded, to any significant extent, to appropriate management options and remains an active issue at times of heightened anxiety in particular. Dr Oldmeadow stated: At this stage no further management strategies are available that would in any way assist Robert in an endeavour to have him return to paid part time employment.

34. Dr Oldmeadow, in a report dated 16 January 2019, stated that his comments in respect of Mr Rowe’s CFS were applicable to the time of Mr Rowe’s application on 20 November 2017 and considered that he would assess Mr Rowe’s CFS as attracting 10 points under table 1 of the Impairment Tables. Dr Oldmeadow opined that, as a consequence of Mr Rowe’s CFS, he would at best be able to perform work related tasks of ‘a routine nature, clerical and sedentary’, but anything more demanding in terms of work commitment would be well beyond his physical, as well as cognitive capacity for some years. He observed that Mr Rowe was unable to walk far outside his home and has difficulty performing day-to-day household tasks.

35. Mr Rowe advised the Tribunal that he had been diagnosed with hepatitis C in 1999 and he had commenced a year-long period of treatment including, chemotherapy and interferon medications. After this course of treatment, he became very fatigued after any physical exercise; could not concentrate for lengthy periods of time; struggled socially; struggled to do shopping and cleaning without rest breaks; and began to suffer greatly from anxiety and excess worry. He advised he was diagnosed with CFS in 2011 and since that time had been under the care of Dr Oldmeadow at the head fatigue assessment unit at the Alfred Hospital, a man Mr Rowe described as a leading expert in CFS.

36. Mr Rowe advised the Tribunal that he had commenced a structured, graded exercise program and started several medications, but eventually Dr Oldmeadow believed his condition was intolerant and resistant to all treatments. Mr Rowe subsequently discontinued medication, several because of their severe adverse side effects. Mr Rowe advised the Tribunal that this was a permanent debilitating condition which continues to affect him greatly.

37. Mr Rowe advised the Tribunal that he experiences symptoms of tiredness, poor concentration, lethargy and is easily irritable. He stated:

    ·he takes his dog to the park which is about eight houses from his home, but he has to drive there and they walked down the block. In total it is about 1 to 2 km a day ⁠(around 30 minutes) and that he needs to take breaks and he is able to sit and let the dog run around;

    ·that he lives independently, that he is able to look after himself, but he does everything slowly, vacuuming once a month, that the washing piles up, that he cooks a large meal and freezes portions, only eating one meal a day plus a banana, that he does shopping two to three times a week;

    ·that he can use public transport, but this is difficult because of his irritable bladder syndrome, as he often has to get off the train to find a toilet;

    ·that he can drive at most for four hours and again this is greatly limited because of his irritable bladder and has experienced difficulties in traffic jams.

1. The Respondent accepts that Mr Rowe’s CFS was fully diagnosed, treated and stabilised during the qualification period, relying upon the corroborating medical evidence from Dr Oldmeadow.

2. Mr Rowe contended that the opinion of Dr Oldmeadow should be preferred as he has an intimate, long-standing knowledge of his condition. Dr Oldmeadow had awarded 10 points under table 1, as he opined Mr Rowe was limited to a single task on most days and required extensive periods of rest after any physical or mental effort.

3. The Respondent contended that a five point rating at most under table 1 could be awarded for this condition. This was based upon the medical evidence and Mr Rowe’s reporting to the ARO and AAT1 that he walked his dog daily approximately 1 to 2 km per day, lived independently, did his own washing, cooking and cleaning, was able to use public transport and could drive up to four hours if he rests.

4. Having considered all the evidence before it, the Tribunal is satisfied that Mr Rowe’s long-standing condition of CFS was fully diagnosed, treated and stabilised at the date of qualification, noting he had been under the care of a consultant physician for many years.

5. The Tribunal finds that Mr Rowe’s condition of CFS was having a moderate impact on his functionality during the qualifying period, as he self-reported and as corroborated by his treating medical practitioners. His constant fatigue and pain restricted his ability to perform household activities; undertake personnel care; walk great distances; or undertake any strenuous activity.

6. The Tribunal assigns 10 points under Table 1 – Functions Requiring Physical Exertion and Stamina for this condition, as the impact of this condition was causing Mr Rowe moderate difficulty with walking and performing day to day, household activities.

   Right knee dysfunction 

7. Dr Bob Dempster, radiologist, verified an MRI of Mr Rowe’s right knee on 27 October 2010 concluding: Early osteoarthritic change involving the medial compartment of the knee is confirmed. In comparison the lateral compartment and post patello-femoral joint are well preserved.

8. Dr RP Hain, general practitioner, in a medical report for DSP claim dated 1 March 2011, diagnosed Mr Rowe as suffering arthritis of the right knee, observing current symptoms were recurrent pain with limited walking capability.

9. Dr Oldmeadow, in 15 September 2011, reported that Mr Rowe had suffered a knee injury in 1999 and had received surgery to repair his tendon in 2009, observing that Mr Rowe suffered persistent pain following the surgery. He reported Mr Rowe had undergone recurrent arthroscopies on four occasions, the last being in November 2010.

10. Mr Nigel Broughton, orthopaedic surgeon, in a medical report dated 4 September 2012 recommended a non-operative approach to Mr Rowe’s early osteoarthritis of the knee.

11. Mr Peter Brydon, orthopaedic surgeon, in a medical report dated 6 February 2018, stated that he had reviewed Mr Rowe, finding he currently has degenerative change in the knee which is beyond any arthroscopic surgery.  Mr Boyden opined the next operation available to Mr Rowe would be a total joint replacement, observing that it was uncertain when this  would occur as degeneration in the joint is always unpredictable. He observed that currently there was no future treatment available for Mr Rowe.

12. Mr Rowe advised the Tribunal that he had injured his knee while employed as a gardener, suffering meniscal damage requiring several operations, eventually making a successful WorkCover claim which he remained on until 2017. He related that he had undertaken intensive physiotherapy and a rehabilitation course, but nothing seemed to fix the pain in his knee, other than rest. Mr Rowe advised he had regularly consulted Dr Brydon and his view was that it would be only a matter of time until he would require a knee replacement, but that had been advised he should manage the pain for as long as possible to put off such surgery. Mr Rowe advised the Tribunal he had been diagnosed with osteoarthritis in his right knee.

13. Mr Rowe advised the Tribunal that this injury continues to affect him to this day; he cannot walk fast, he must rest frequently, his knees seize up on him, and he has difficulty climbing stairs andwalking up hills or on uneven ground.

14. The Respondent accepted that Mr Rowe’s long-standing right knee dysfunction was fully diagnosed, treated and stabilised during the qualification period, relying upon MRI findings and reports from his treating medical specialists including an orthopaedic surgeon.

15. Mr Rowe agreed with the finding of the AAT Tier 1 that he has a lower limb functional impairment of five points.

16. The Respondent contended that a five point rating at most under Table 3 – Lower Limb Function could be awarded for this condition based upon the medical evidence and Mr Rowe’s reporting to the JCA and ARO that he was able to walk about 1 km before he felt pain, had difficulties with stairs and uneven terrain, had difficulties with standing for longer than 10 minutes, could utilise public transport and had his own car and could go to the shops on his own.

17. Having considered all the evidence before it, the Tribunal is satisfied that Mr Rowe’s long-standing condition of right knee dysfunction was fully diagnosed, treated and stabilised at the date of qualification, noting he had undergone numerous surgical procedures for the condition.

18. The Tribunal finds that Mr Rowe’s condition of right knee dysfunction was having a mild impact on his functionality during the qualifying period as he self-reported and as corroborated by his treating medical practitioners; he experience recurrent pain in his knees, had limited walking capacity and difficulty climbing stairs.

19. The Tribunal assigns 5 points under Table 3 – Lower Limb Function for this condition, as the impact of this condition was causing Mr Rowe mild difficulty with walking and climbing stairs.

    Spinal and left shoulder dysfunction

20. Dr Chian Chang, radiologist, reported on an x-ray of Mr Rowe’s cervical and lumbosacral spine on 20 October 2017, finding mild sclerosis of the L4/5 and L5/S1 facet joints.

21. Dr Kerrin Tarburton, chiropractor, in a medicolegal report for these proceedings dated 14 February 2018 noted that Mr Rowe had been his patient since 2016 and on initial examination found significant spinal dysfunction in the cervical and upper thoracic spine, as well as global loss of range of motion in the left shoulder joint. An x-ray undertaken in October 2017 showed moderate osteoarthritis of the cervical spine. Dr Tarburton observed that Mr Rowe suffers neck pain and stiffness, shoulder pain and stiffness, and neck, back and leg muscle cramps; observing these vary in severity over time but never seem to entirely abate.        Dr Tarburton opined that the was not aware of any treatment available that would benefit Mr Rowe's condition significantly, observing: I do not know of any other treatment that would likely improve his osteoarthritis, it tends to be a chronic slowly progressing, degenerative condition. Dr Tarburton was of the view Mr Rowe warranted 5 points under Table 4 – Spinal Function, in that he has some difficulty turning his trunk and moving his head.

22. Mr Rowe advised the Tribunal that he also suffered from spinal, back and shoulder pain which was first diagnosed in 2011 and for which he had been receiving treatments, including cortisone injections and consulting a chiropractor. Mr Rowe gave evidence that his chiropractor had advised that there were no other treatments available which would give any benefit to his spinal/neck condition

23. Mr Rowe advised the Tribunal that he has restricted neck movement and has difficulty turning his head, which his chiropractor often cracks to loosen it up, which provides momentary relief to his pain.

24. The Respondent accepted that Mr Rowe’s spinal and left shoulder dysfunction was fully diagnosed, treated and stabilised during the qualification period, relying upon MRI findings and reports from his treating medical specialists, including his chiropractor.

25. Mr Rowe contended that the opinion of Dr Tarburton, his treating specialist, should be preferred, who had assigned a 5-point impairment rating for this condition under Table 4.

26. The Respondent contended that a 5-point rating, at most, under Table 4 – Spinal Function could be awarded for this condition, based upon the medical evidence from Mr Rowe’s chiropractor that Mr Rowe has some difficulty turning his trunk or moving his head.

27. Having considered all the evidence before it, the Tribunal is satisfied that Mr Rowe’s condition of spinal and left shoulder dysfunction was fully diagnosed, treated and stabilised at the date of qualification, noting medical imaging of the condition and ongoing treatment to manage pain.

28. The Tribunal finds that Mr Rowe’s condition of spinal and left shoulder dysfunction was having a mild impact on his functionality during the qualifying period as he self-reported and as corroborated by his treating medical practitioners. He experienced recurrent pain in his back, neck and shoulder, which restricted his ability to move his neck and trunk.

29. The Tribunal assigns 5 points under Table 4 – Spinal Function for this condition, as the impact of this condition was causing Mr Rowe mild difficulty with turning his trunk and moving his head.   

    Mental health condition

30. Dr Michael Oldmeadow, in Mr Rowe’s medical report for DSP dated 9 October 2012, reported that Mr Rowe had:

    Ongoing fatigue exacerbated by limited physical or mental effort. Poor focus and concentration. Chronic left knee pain most likely due to regional pain syndrome which has become established over the last 12 months. Continuing anxiety and distress related to unresolved family and financial issues. This in turn exacerbates his fatigue.

31. Dr Anthony Cidoni, consultant psychiatrist, in a medico-legal report for these proceedings dated 28 May 2019, reported he had not been treating Mr Rowe but had assessed him for these proceedings. He opined that Mr Rowe’s condition met the criteria for a chronic adjustment disorder with anxious and depressed mood; additionally, noting Mr Rowe’s chronic pain would meet the criteria for a somatic system disorder diagnosis. He assessed that, based on the medical evidence provided to him, Mr Rowe’s depression and anxiety had been diagnosed in 2001. He noted that, in terms of symptoms, Mr Rowe has significant chronic fatigue, insomnia, poor concentration, feelings of anxiety, low self-esteem and chronic pain which occurred daily. In his report he stated:

    Mr Rowe’s anxiety and depression related to his chronic fatigue and are difficult to separate, but for the purposes of the assessment tables, fall under table 5 – mental health function. In my opinion, his anxiety and depression cause a mild impairment in self-care, moderate impairment in social activities including church, severe impairment in his interpersonal relationships, moderate impairment in his concentration, mild impairment in his behaviour and planning and moderate impairment in his work training capacity for an overall rating of 10 – moderate.

32. Dr Cidoni, provided a supplementary report dated 23 August 2019 addressing the issue of whether some of the symptoms of Mr Rowe’s chronic fatigue syndrome assessed under Table 1 may also fall under Table 5 for mental health conditions. After a lengthy discussion on the literature in respect of the interplay between chronic fatigue syndrome and psychiatric disorders he made the following assertion:

    … the distinction between chronic fatigue syndrome as it currently is constructed and a somatic symptom disorder as defined by DSM-V, is fairly arbitrary and applying the strict criteria of the somatic symptom disorder would require consideration of Mr Rowe’s level of preoccupation with his fatigue and concern with this fatigue which I think is high.

    If the DSM-V diagnosis of somatic symptom disorder is applied to the chronic fatigue, it could potentially be viewed as primarily a mental health condition and therefore incorporated into the overall rating of under table 5 – mental health function which would result in an overall rating of 20 within the domain rather than a separate rating of 10 in the fatigue domain and 10 in the mental health disorder domain.

33. Mr Rowe advised the Tribunal that since his diagnosis of chronic fatigue he had also suffered debilitating anxiety. That over the years he had seen many specialists for this condition, including psychologists, and had tried medication but nothing helped to cure his condition.

34. Mr Rowe advised the Tribunal that his mental health condition impacted his life greatly, particularly his social life; he generally stays at home, avoiding friends and family. He stated that he struggled to go to unfamiliar places and found it difficult to find his way around. He is embarrassed to talk to people about his condition and did not want to explain why he was living alone in a one-bedroom unit. Since his marriage breakdown, he had one long term relationship but that had also ended. He now feels uncomfortable socially, not wanting to embark on any new relationship as he did not want to explain his medical history. He had no ability to concentrate, struggled to complete training courses, was constantly tired, anxious and was distressed most days about his condition.

35. The Respondent contends that Mr Rowe’s mental health condition was not fully diagnosed, treated and stabilised during the qualification period as the condition had not been diagnosed by a clinical psychologist or psychiatrist as required by the introduction to Table 5 of the Impairment tables. Additionally, the Respondent contented Mr Rowe had not engaged in any appropriate treatment for this condition during the qualification period, including medication or psychological therapy. Further, there was no corroborating medical evidence of any functional impairment.

36. Mr Rowe contented that the opinion of Dr Cidoni should be preferred as he had provided an expert opinion diagnosing him with somatic symptom disorder, combined with his chronic adjustment disorder with anxious and depressed mood. He contended that Dr Cidoni had attested this chronic condition would attract an impairment rating of 20 points under Table 5 – Mental Health Function.

37. Having considered all the evidence before it, the Tribunal was not satisfied that Mr Rowe’s mental health condition described as depression and anxiety was fully diagnosed, treated and stabilised at the date of qualification, noting his condition had not been diagnosed by an appropriately qualified medical practitioner until after the qualification period. The Tribunal did note Dr Oldmeadow had made numerous refences to Mr Rowe’s continued anxiety and distress associated with his CFS, family and financial issues which the Tribunal finds to be a completely understandable diagnosis given Mr Rowe’s complex medical history. However, this diagnosis cannot be relied upon, as Dr Oldmeadow, while undoubtably an expert in CFS, is not a clinical psychologist or psychiatrist. Additionally, there was little evidence before the Tribunal that Mr Rowe had engaged with any treatment for his mental health function or any medical evidence of the impact of this condition on his functionality during the qualification period; noting the opinion of Dr Oldmeadow who had stated: Psychological therapy has been unhelpful for Robert and it would be appropriate to state that, as an individual, although intelligent, he is not what may be termed psychologically minded. This would limit any ongoing input with psychological therapy and strategies.

38. The Tribunal therefore did not assign any points under Table 5 – Mental Health Function for this condition.

    Impairment rating

39. The Tribunal has found that Mr Rowe has an overall impairment rating of 20 points, with 10 points allocated under Table 1 (Functions Requiring Physical Exertion and Stamina), 5 points under Table 3 (Lower Limb Functions) and5 points under Table 4 (Spinal Function) Therefore, Mr Rowe satisfies section 94(1)(b) of the Act.

    DOES MR ROWE HAVE A CONTINUING INABILITY TO WORK?

40. To qualify for the DSP, Mr Rowe must not only have an impairment with a rating of 20 points or more under the Impairment Tables; he must also demonstrate he has a continuing inability to work. Mr Rowe would be considered to have a continuing inability to work if he has actively participated in a POS within the meaning of section 94(3C) of the Act prior to his claim for DSP, and his impairment is of itself sufficient to prevent him from doing any work independently of a POS. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a POS; a person’s impairment is a severe impairment if it attracts 20 points or more under a single table.

41. The Tribunal has strictly applied the program of support requirement, finding that no power exists to dispense with the operation of section 94(2)(aa) of the Act, and it is irrelevant whether an applicant was aware of the requirement or not.

42. Mr Rowe has not been found to have a severe impairment of 20 points under a single table. Therefore, he must have participated in a POS for the requisite 18 months prior to his claim. The Respondent provided evidence which indicated that Mr Rowe had not participated at all in the relevant period in a POS, arguing he did not satisfy section 7(1) of the Social Security (Active Participation for Disability Support Pension) Determination 2014. The Tribunal accordingly finds that Mr Rowe has not completed a POS and therefore does satisfy section 94(3C) of the Act.

43. Mr Rowe contented firstly that his mental health condition was severe and therefore he was not required to complete a POS. Additionally, he argued he had been officially exited from the POS by his employment service provider WCNjobs, providing a copy of an exit letter dated 10 December 2019.

44. The Secretary contended that Mr Rowe did not satisfy section 94(2) of the Act and did not have a continuing inability to work during the qualification period. On that basis, the Secretary contends that the Applicant did not satisfy paragraph 94(1)(c) of the Act during the qualification period.

45. The Secretary contended that Mr Rowe cannot be exempted from the POS requirements, specifically under subsection 7(4) of the POS Determination, on the basis that he was not participating in a POS that was terminated prior to him claiming DSP on 20 November 2017. The Secretary argued that Mr Rowe was exempted from the POS requirements for his DSP claim made on 16 September 2019 as he was exited from the POS program on incapacity grounds on the basis that his conditions prevented him from improving work capacity, noting Mr Rowe’s 16 September 2019 claim was granted on this basis. The Secretary submitted that as Mr Rowe had not actively participated in a POS at all during the relevant POS period for his DSP claim made on 20 November 2017, he was not eligible for an exemption under subsections 7(3)–(5) of the POS Determination.

46. The Tribunal finds that Mr Rowe could not be exempted from the POS requirements in accordance with section 7(4) of the POS determination as at the date of his claim as he had not commenced in such a program. This is despite the Tribunal’s conclusion Mr Rowe would have been prevented solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program.

47. The Respondent contended that Mr Rowe had a continuing ability to work. The Respondent relied upon the JCA of 17 July 2018 which determined that Mr Rowe had a capacity for work within two years with intervention of 23 to 29 hours per week.

48. Mr Rowe contented he had no capacity as he had been assessed by his WorkCover insurer GIO as having no capacity for work since 2010 and had been exempted from job searches – tendering a letter to verify this fact. He also relied upon medical evidence from Dr Oldmeadow and Dr Tarburton who opined he had no work capacity.

1. Dr Oldmeadow in his report of 24 January 2018 observed:

   Overall I anticipate Robert’s condition will not further improve in the foreseeable future. This would encompass at least the next two year period. He will therefore remain impaired in relation to his energy capacity, being limited to a single task on most days and requiring extensive periods of rest after any physical or mental effort. Concentration and ability to hold his focus for reasonably simple tasks beyond a full half hour will also continue to be significantly compromised. Symptoms, although variable on a day-to-day basis, will continue to be active daily and it will remain difficult to predict when better or worse days are likely to occur. This limits any capacity for regular part time employment.

2. Dr Tarburton, in his report of 14 February 2019 observed:  I believe Mr Rowe is unable to work at least 15 hours for 2 years from the pension qualification period due to his overall impairment.

3. The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred, for the purpose of assessing a continuing inability to work. This Tribunal does not think an absolute preference should be expressed for either report; rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report, the writer’s relationship with the person who is the subject of the report, and the reliability and depth of the analysis within the report.

4. Based upon the medical evidence the Tribunal is satisfied that Mr Rowe’s impairments were sufficient to prevent him from undertaking work independent of a POS or a training activity within two years, however as he had not actively participated in a POS (as defined by section 94(3C) of the Act and section 7 of the POS Determination) the Tribunal has to find that he did not have a continuing inability to work.

   CONCLUSION

5. Having carefully considered all the evidence, the Tribunal finds that at the time of his DSP application of 21 November 2017, Mr Rowe had the required 20 impairment points to satisfy section 94(1)(b) of the Act but had not commenced a POS. Without having a severe impairment, Mr Rowe cannot have met all the requirements to be eligible for the DSP and therefore the application cannot succeed.

   DECISION

   The Tribunal affirms the decision under review.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

.........................[sgd].............................................

Associate

Dated: 18 May 2020

Date of hearing:	10 March 2020
Submission of additional material:	8 April 2020
Applicant:	In person
Advocate for the Respondent:	Ms Cailin Farrell
Solicitors for the Respondent:	Sparke Helmore Lawyers