Schurmann and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1247

Schurmann and Secretary, Department of Social Services (Social services second review) [2020] AATA 1247 (8 May 2020)
Division:GENERAL DIVISION
File Number: 2019/3343
Re:Gary Schurmann
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:8 May 2020
Place:Brisbane

The Administrative Appeals Tribunal sets aside the decision of the Social Services and Child Support Division of the Tribunal dated 27 May 2019 and substitutes a decision that the Applicant met the requirements of section 94(1) of the Social Security Act 1991 (Cth) and was qualified for Disability Support Pension at the date of his claim on 18 June 2018.
...........................[SGD]...........................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – continuing inability to work – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALDA 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Mongan and Secretary, Department of Social Services [2016] AATA 344
REASONS FOR DECISION
Member D Mitchell
8 May 2020
INTRODUCTION

On 18 June 2018, Mr Gary Schurmann (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1] On the Applicant’s claim for DSP form, he lists his disabilities or medical conditions that significantly affect his ability to work to include: “severe osteoarthritis, wedge compression fractures of spine, recurrent prostate cancer and chronic pain”.[2]
[1] Exhibit 1, T Documents, T27, pages 119-149, Claim for DSP.
[2] Exhibit 1, T Documents, T27, page 143, Claim for DSP.
The claim was rejected on 15 August 2018, on the basis that the Applicant did not have an impairment rating of 20 points or more.[3]
[3] Exhibit 1, T Documents, T29, pages 152-153, Centrelink Notice: Rejection of your claim for DSP.
On 4 February 2019, a Job Capacity Assessment (JCA) report was completed by an Assessor whose professional discipline is listed as a registered nurse, with the contribution from an Assessor whose professional discipline is listed as a registered occupational therapist.[4] The JCA report concluded that the Applicant’s:[5]
·Mental health conditions (anxiety, depression and adjustment disorder) were not fully diagnosed. They were not fully treated and fully stabilised and could not be assigned any impairment rating.
·Prostate cancer was fully diagnosed, fully treated and fully stabilised at the date of claim, but could only be assigned zero points under Table 1 of the Impairment Tables.
·Spinal conditions (wedge compression fractures of thoracic spine, degenerative spondylosis of L1/2) were fully diagnosed, fully treated and fully stabilised at the date of claim and could be assigned 10 points under Table 4 of the Impairment Tables.
·Lower limb conditions (osteoarthritis of both knees) were fully diagnosed, fully treated and fully stabilised at the date of claim and could be assigned 5 points under Table 3 of the Impairment Tables.
[4] Exhibit 1, T Documents, T41, pages 176-188, JCA Report.
[5] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 2, paragraph 14.
On 7 February 2019, an Authorised Review Officer (ARO) affirmed the decision to reject the Applicant’s claim for DSP. The ARO agreed with the conclusions of the JCA finding that the Applicant’s fully diagnosed, fully treated and fully stabilised conditions resulted in a total impairment rating of 15 points.[6]
[6] Exhibit 1, T Documents, T42, pages 189-196, Decision and Notes of ARO.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision to reject the Applicant’s claim for DSP on 27 May 2019.[7]
[7] Exhibit 1, T Documents, T2, pages 5-12, Decision of the Social Services and Child Support Division.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal by way of an application dated 13 June 2019.[8]
[8] Exhibit 1, T Documents, T1, pages 1-4, Application for Review of Decision.
At the Hearing, the Applicant was self-represented, appeared by telephone and gave evidence under affirmation. The Tribunal considers that the Applicant openly responded to questions from the Tribunal and cross-examination from the Respondent and gave honest answers to the questions he was asked.
At the Hearing, Dr Harold McIntosh, the Applicant’s general practitioner, gave evidence under affirmation, by telephone.
At the end of the Hearing, the Tribunal requested that the Respondent provide submissions in relation to the requirements of section 94(1)(c) of the Act and the Applicant’s continuing inability to work. The Respondent provided their submission on 19 December 2019. The Applicant provided a response on 10 January 2020.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), Social Security (Administration) Act 1999 (Cth) (the Administration Act), Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (Active Participation Determination). The following is a summary of the key requirements which relate to the Applicant.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[9]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[10] and
3.Does the Applicant have a continuing inability to work?[11]
[9] Section 94(1)(a) of the Act.
[10] Section 94(1)(b) of the Act.
[11] Section 94(1)(c) of the Act.
Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”; and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[12]
[12] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP, the condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[13] As such, a condition could be considered permanent from the perspective of being life-long, but still not meet the definition under the DSP requirements.
[13] Sections 6(3) and (4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered:
(a)Whether there is corroborating evidence of the condition;
(b)What treatment or rehabilitation has occurred in relation to the condition; and
(c)Whether treatment is continuing or planned in the next 2 years.[14]
[14] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[15]
(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.
[15] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16]
[16] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[17] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[18]
[17] Section 6(2) of the Determination.
[18] Section 8(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or 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 POS within the next 2 years.
A person’s impairment is considered to be 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.[19]
[19] Section 94(3B) of the Act.
The requirements that must be met for a person to be considered to have actively participated in a POS[20] are set out in the Active Participation Determination.
[20] Section 94(3C) of the Act.
The Active Participation Determination sets out that a person has actively participated in a POS if the person has complied with the requirements of the POS and participated in a POS during the relevant period,[21] provided the required information regarding the applicable POS[22] and one of the following applies:[23]
·The person participated in the POS for at least 18 months during the relevant period;[24] or
·The duration of the POS was less than 18 months and the person completed the entire program during the relevant period;[25] or
·The POS was terminated before the end of the relevant period because the person was unable, solely because of his or her impairment, to improve his or her capability to prepare for, find or maintain work through continued participation in the program;[26] or
·At the end of the relevant period, the person is participating in the POS and 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.[27]
[21] Section 7(1)(a) of the Active Participation Determination.
[22] Sections 7(1)(c) and 7(6) of the Active Participation Determination.
[23] Section 7(1)(b) of the Active Participation Determination.
[24] Section 7(2) of the Active Participation Determination.
[25] Section 7(3) of the Active Participation Determination.
[26] Section 7(4) of the Active Participation Determination.
[27] Section 7(5) of the Active Participation Determination.
The relevant period (POS Period) in relation to the requirements set out in the Active Participation Determination in relation to a person whose impairment is not a severe impairment is the 3 years prior to the day on which the claim for DSP is made or is taken to have been made by the person.[28]
[28] Section 5 of the Active Participation Determination.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[29]
[29] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[30]
[30] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 18 June 2018, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 17 September 2018. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[31]
[31] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 42.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
Mental Health Condition
There is evidence before the Tribunal that during the Relevant Period the Applicant’s general practitioner Dr McIntosh[32] and psychologist, Mr Norm Feeney[33] made a diagnosis of adjustment disorder and depression and a treatment plan was recommended.
[32] Exhibit 1, T Documents, T31, page 156, Medical Certificate provided by Dr McIntosh.
[33] Exhibit 1, T Documents, T33, page 158, Report provided by Mr Norm Feeney.
The Responded contended that there was no evidence before the Tribunal that the Applicant’s adjustment disorder and depression had been diagnosed by a psychiatrist or clinical psychologist either before or during the Relevant Period.[34]
[34] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 46-57.
To be considered fully diagnosed, Table 5 of the Impairment Tables, which relates to mental health, requires that the diagnosis of a mental health condition 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).[35]
[35] Impairment Table 5 – Mental Health Function, Part 3 of the Determination.
At the Hearing, the Applicant told the Tribunal that he had not seen a psychiatrist or clinical psychologist. However, he thought that Mr Feeney was a clinical psychologist. He said that Mr Feeney said the way he was feeling was understandable given his physical conditions and that there was not much they could do to help him until his physical conditions settled down. The Applicant told the Tribunal he could not afford to continue to see Mr Feeney. The Applicant confirmed he understood the DSP requirements now in relation to mental health conditions and the requirements relating to diagnosis.
While the Tribunal accepts that the Applicant does have an adjustment disorder and depression, based on the evidence before it, the Tribunal finds that this condition was not fully diagnosed during the Relevant Period. There is no corroborating evidence that this condition was diagnosed by a psychiatrist or clinical psychologist during the Relevant Period.
As such, the Applicant’s mental health condition cannot be considered permanent for the purposes of applying the Impairment Tables and the Tribunal is unable to assign impairment points for the condition.
Prostate Cancer Condition
Based on the evidence before the Tribunal, it is clear that the Applicant had been diagnosed with prostate cancer in 2015 and that the prostate cancer has reoccurred since. The Applicant underwent surgery and radiation therapy. By 2018 he was having regular six-monthly check-ups.
The Respondent contended that the Applicant’s prostate cancer condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period, causing the Applicant minimal or no functional impairment and could be assigned an impairment rating of zero under Table 1 of the Impairment Tables.[36]
[36] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 12-13, paragraphs 49-52.
At the Hearing, the Applicant confirmed the medical evidence before the Tribunal that his prostate cancer condition was not causing him any functional impairment during the Relevant Period. The Applicant said it was his focus on treatment for his prostate cancer that led to the delay in having his other conditions seen to and making a claim for Centrelink assistance.
Based on the evidence before it, the Tribunal finds that the Applicant’s prostate cancer condition was fully diagnosed, fully treated and full stabilised during the Relevant Period and can be assigned an impairment rating of zero under Table 1 of the Impairment Tables.
Spinal Condition
The Respondent contended that the Applicant suffers from advanced osteoarthritis of his lumbar spine and multiple wedge compression factures of his thoracic spine. The Respondent contended that these conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned an impairment rating.[37]
[37] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 44-45.
The Respondent contended that the medical evidence indicates that the Applicant’s spinal condition causes a moderate functional impairment and can be assigned 10 points on Table 4 of the Impairment Tables. The Respondent relied on the following evidence:[38]
[38] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-11, paragraphs 46-48.
a.    The report by Dr Harold McIntosh dated 14 June 2018 (T25, f116) containing the following comments:
He has a functional capacity of 30 minutes for standing, walking and sitting and is unable to bend to the floor or chair (but can bend to a table). Unable to bend knees, crouch or carry any weights. He also struggles to get up out of a chair. His knees are also unstable and cause him to collapse regularly, especially going up stairs.
b.    The further report by Dr McIntosh dated 15 November 2018, Dr McIntosh (T39, f134-135) containing the following comments:
He achieves the criteria listed in the 10 point criteria 1 a-c (unable to work overhead, can't look over his shoulders and unable to bend forward to pick up item at knee height) and in item (d) he needs to be assisted out of chairs from a person or uses other furniture to lever himself up.
c.     The JCA report dated 4 February 2019 (T41, at f182) containing the following comments:
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); Dr McIntosh, 15.11.2018 indicated [the Applicant] is unable to work overhead and is unable to look over his shoulders.
(c) the person is unable to bend forward to pick up a light object placed at knee height; or GP, Dr Harold McIntosh, 14.6.2018 and 11.6.2018 indicated [the Applicant] was unable to lift / bend or crouch repeatedly. He was unable to bend to the floor or chair, but can bend to a table. He reported chronic pain and reduced function of the back and knees.
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair). Dr McIntosh reported [the Applicant] struggled to get up out of a chair. Physiotherapy report from Mr Matthew Rigby, 30.5.2018 did not reference the spinal function. Dr McIntosh reported sitting limited to 30 minutes and with Dr McIntosh having reviewed the impairment tables, he supported a functional limitation equal to ten impairment points. Dr Schneider indicated impaired function reducing mobility and standing tolerance. Dr Schneider reported narcotic analgesia may impact negatively on driving capacity and return a positive result if drug tested. Dr Schneider indicated [the Applicant] is unfit to return to his former employment (physical roles in the mining industry) as a result of his combined conditions and he is unlikely to be able to return to any form of paid employment without access to comprehensive rehabilitation including vocational assessment and training. From previous assessment, 3.5.2018 "[the Applicant] reported reduced tolerance for prolonged sitting (2 hours), reduced capacity for lifting and carrying, and difficulty rising to stand from a seated position".
d.    The Applicant's evidence at the AAT1, which was recorded as:
17. At hearing, the Tribunal sought information from [the Applicant] regarding the impact of his condition in about June 2018. He informed that he could drive a car specially fitted with lumbar supports to a local supermarket in Sirana where he would shop for his basic requirements, always using a supermarket trolley for support. He would avoid items on higher shelves. He confirmed that he could bend forward with some difficulty to e.g. pick up a magazine from a coffee table at knee height needing to support himself on one arm.
18. [the Applicant] told the Tribunal that his lumbar pain was different from day to day and, while he was in constant pain, if he performed an unusual task requiring greater exertion, the pain would immediately become extreme. He also reported that his ability to sit for extended periods of time and to walk distances has worsened considerably since the date of his claim...

In a letter received by the Tribunal on 25 June 2019, the Applicant relevantly wrote:[39]
The pain in my knees back and neck is a constant ache which turns to sharp jolting pain when moving around or trying to do anything. Quite often just being upright sitting or standing my neck can not bear the weight of my head without causing me headaches and severe pain in my shoulders and left arm and I need to lie down.
…
I qualify under table1 and do not know why I have not been assessed using that table.
[39] Exhibit 5, Applicant’s letter to the Tribunal, received on 25 June 2019.
At the Hearing, in relation to his spinal condition, the Applicant told the Tribunal:[40]
·He cannot work overhead. As soon as his elbows get up to his shoulder height, that is as far as he can go and sometimes not even that far.
·The initial report from his doctor was confused about 10 points, but that was corrected in the more recent report.
·To wash his hair he leans forward and brings his arms up straight in front of him and his hand can reach the top of his head, with elbows still way below shoulder height.
·When asked how he checks his mirrors when driving, that he said he does not look over his shoulder unless he can turn around and turn his whole body, but that is a bit difficult when sitting down. He can move his shoulders while he is sitting down and it is quite easy to look in the left hand reversing mirror, front mirror and right hand side mirror. He does that without turning his head or bending his neck. He said he had to be very careful with his neck movements.
·He does the cooking and dishes and stuff like that.
·He can sit down from more than 10 minutes and does so when driving to the shops, but that is with pain and he is moving around a lot.
[40] Transcript, pages 18-20.
In cross-examination, the Applicant told the Tribunal:[41]
·He does his own cooking and cleaning at home.
·He has cupboards above the stove and most of the time he gets his son to get the things out of them.
·He does not hang his washing out on the washing line. He has a clothes dryer which is on a trolley at his chest height.
·He can prepare food at bench height.
·He cannot pick a magazine up off a coffee table if the coffee table is in the middle of the room. If it is up against a wall, he would be able to lean on the wall and bend down and use the wall to grab it if he had to.
·If something falls on the floor, it stays there until he can talk his son into picking it up for him.
[41] Transcript, pages 25-26.
In a report dated 14 November 2019, Dr McIntosh provided the following:[42]
Clarification of Ability to Work Overhead:
In the letter of 15/11/18, I stated that he is unfit to work overhead and this is due to the fact that he is unable to extend his neck (look upwards) and movements in this direction cause blinding pain in his forehead and eyes. Additionally, abducting his elbows outwards also aggravates his neck and head pain so all arm use has to be performed shoulder level.
He is able to wash his hair by flexing his head forwards and flexing his arm forwards with elbow bent to allow the rubbing of his head. This fact seems to have be used to dispute the fact that he is unable to work overhead but in my opinion, his ability to wash his hair in this manner does not mean that he can work overhead. The inability to extend his neck or abduct his elbows completely prevents overhead work.
[42] Exhibit 3, Report of Dr McIntosh, dated 14 November 2019.
At the Hearing, Dr McIntosh told the Tribunal:[43]
[43] Transcript, pages 41-44.
·When asked to explain his report (as set out in paragraph 43 above) in relation to his focus on working overhead, he was talking about functioning overhead. The Applicant was unable to wipe down or lift things off shelves, clean windows or lift things up into high cupboards. He was unable to perform any activities or work. He was using the term “work” loosely, he did not mean paid employment.
·The Applicant is unable to perform simple household activities overhead.
·His reference to blinding pain was in relation to looking upwards.
·The Applicant is not prevented from driving a car, because he could not turn or bend his neck without moving his trunk. Some people with neck fusion still drive.
·The Applicant’s motions of turning his head or bending his neck are very limited.
·The Applicant could pick up a light object from a table, because that does not require neck movement.
·The Applicant could remain seated for more than 10 minutes, however he would be constantly changing positions.
·When asked why he had changed his view in relation to the Applicant’s rating on Table 4 of the Impairment Tables from 10 points in his report dated 15 November 2018 to 20 points in his report dated 14 November 2019 and how did the report dated 14 November 2019 relate to the Relevant Period:[44]
So, I think - I mean – yes, I mean, throughout the times he has been unable to perform those activities. You know, they could be – probably his walking has deteriorated – but his neck has always been exceptionally bad. So, clearly, even back in those times he – so clearly the criteria – I mean from a practical sense, I don’t think he’s ability has changed. It’s more my trying to work my way through the criteria on the descriptors that has changed – my understanding of those descriptors may well have changed. But his functional ability has been atrocious all the way through. So, I mean, clearly he was unable to perform activities overhead in November and not it is just the same.
·That he confirmed that his letter written in November 2019 was correcting the letter of November 2018 and that he is saying that the 2019 letter applied back to when the Applicant made his claim for DSP in June 2018.
[44] Transcript, page 44.
At the Hearing, the Respondent contended that:[45]
·After taking into consideration the evidence provided at the Hearing by the Applicant and Dr McIntosh, the Applicant’s spinal condition can only be assigned 10 points under Table 4 of the Impairment Tables.
·The evidence is clear that the Applicant can perform at least one overhead activity which is washing his hair, although both the Applicant and Dr McIntosh pointed out with qualification.
·Although Dr McIntosh raised the point that the Applicant cannot sustain work overhead, albeit he has limitations, it is not the case that the Applicant cannot perform any overhead activities.
·The point to Table 4 of the Impairment Tables is whether a person can do any overhead activities. It is not whether the person has limitations. Dr McIntosh made it very clear that the Applicant could do things, but he would suffer quite significant pain and he would have to rest.
·The evidence provided by Dr McIntosh and the Applicant did not establish any of the 20 point descriptors.
[45] Transcript, pages 47-48.
In his post-hearing closing submissions, the Applicant contended that:[46]
·He believes that he can be allocated 20 points on Table 4 of the Impairment Tables as he is unable to perform any overhead activities and cannot remain seated for more than 10 minutes without adjusting his position consistently.
·He does not think that the ratings the Respondent assigned are correct due to:
… on Page 40 Descriptors involving performing activities. (3) When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity Normally and on a repetitive or habitual basis and not only once or rarely… before every movement I make causes a great deal of pain which is aggravated more the more I do. It does not take long to become unbearable. And I need to lay down and rest, sitting aids relief to my knees but not to my spine.
[46] Applicant’s Closing Submissions, received by email on 10 January 2020.
Based on the evidence before it and the contentions made by the Respondent, the Tribunal finds that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned an impairment rating.
The Tribunal considers that based on the diagnosis of the condition and functional impairments caused, the Applicant’s spinal condition can be considered using Table 4 of the Impairment Tables. Table 4 is 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.[47]
[47] Impairment Table 4 – Spinal Function, Part 3 of the Determination.
Relevantly, Table 4 of the Impairment Tables sets out that the following descriptors have to be met for a spinal condition to be considered to result in a moderate or severe functional impact:

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.

The issue for the Tribunal is whether the Applicant’s spinal condition should be assigned 10 or 20 impairment points under Table 4 of the Impairment Tables.
As set out above, the Applicant contends that his spinal condition should be assigned 20 impairment points and the Respondent contends that it should be assigned 10 impairment points. Having considered the evidence before it, the Tribunal accepts that the Applicant’s spinal condition causes him functional impairment. Overall, the evidence before the Tribunal is that the Applicant has difficulty moving his neck and performing overhead activities, however that does not mean he is unable to.
The Tribunal notes the Applicant’s contention that when considering activities, it is necessary to look at whether the person can do the activity normally and on a repetitive or habitual basis and not only once or rarely. The Tribunal agrees with the Applicant’s point. The Tribunal considers that based on the evidence before it, the Applicant is able to wash his hair and safely drive his car, both on a regular basis, albeit by making adjustments.
The Tribunal was not persuaded by the evidence of Dr McIntosh regarding why his view in relation to the application of the Impairment Tables changed in relation to the Applicant’s spinal condition.
The Tribunal accepts that at the Relevant Period the Applicant was unable to sustain overhead activities, he could however perform overhead activities, had difficulty moving his head to look in all directions, but was not unable to turn his head or bend his neck without moving his trunk, could bend forward to pick up a light object from a desk or table, could remain seated for at least 10 minutes and could get up out of a chair without assistance, although with difficulty.
Consequently, based on the evidence before it, the Tribunal finds that the Applicant’s spinal condition can be assigned 10 points under Table 4 of the Impairment Tables during the Relevant Period.
Lower Limb Condition
The Respondent contended that the Applicant suffers from osteoarthritis in both knees which was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned an impairment rating.[48]
[48] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraphs 42-43.
The Respondent contended that the medical evidence indicates that the Applicant’s lower limb condition causes a mild functional impairment and can be assigned 5 points on Table 3 of the Impairment Tables. The Respondent relied on the following evidence:[49]
[49] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-9, paragraphs 44-43 (noting an error       occurred with the paragraph numbering).
a.The Functional Capacity report by Mr Matthew Rigby, Physiotherapist dated 30 May 2018 (T22, f122) containing the following comments in relation to the Applicant's Severe Knee Osteoarthritis:
Current status:
·     Inability to Perform normal weight bearing. Has constant limp caused due to pain in bilateral knees, usually uses walking stick and hinged knee brace. [The Applicant] has experienced multiple falls due to his knee pain and poor strength/balance, with 3-4 falls this year.
·     Squat: unable to bend knees >10-20 deg when weight bearing due to pain
·     Unable to lunge
·     Unable to step up 30cm step with (L) leg
·     Unable to Single Leg Stance with either leg >5seconds, very unbalanced with tandem stance bilaterally
Due to these findings, and [the Applicant’s] failing of conservative treatment in the form of Physiotherapy which severely inhibits his ability to perform work.
b.The report by Dr Harold McIntosh dated 14 June 2018 (T25, f116) containing the following comments:
He has a functional capacity of 30 minutes for standing, walking and sitting and is unable to bend to the floor or chair (but can bend to a table). Unable to bend knees, crouch or carry any weights. He also struggles to get up out of a chair. His knees are also unstable and cause him to collapse regularly, especially going up stairs.
c.The JCA report dated 4 February 2019 (T41, at f182-183) containing the following comments:
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop) - Dr Schneider indicated impaired function reducing mobility and standing tolerance. Dr Schneider reported narcotic analgesia may impact negatively on driving capacity and return a positive result if drug tested.
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest - GP (26.10.17) reported walking tolerance restricted to 100 to 300 metres. [The Applicant] reported he is able to complete grocery shopping independently provided he uses a trolley rather than a basket. On some occasions he experiences pain and independently travels home if he is unable to persist; or
(c) the person has some difficulty climbing stairs - Dr Schneider 21.8.2018 indicated [The Applicant] is unfit to return to his former employment (physical roles in the mining industry) as a result of his combined conditions and he is unlikely to be able to return to any form of paid employment without access to comprehensive rehabilitation including vocational assessment and training.
GP (26.10.17) reported knees also give way when climbing or descending stairs. [The Applicant] reported there is a flight of 10 internal stairs in his home which lead to his bedroom. He advised these stairs have no handrail, and that he needs to take steps one at a time and sometimes uses "hand holds" (such as leaning forward to higher steps) to assist him to climb these stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes - [the Applicant] reported he is able to stand for 1-2 hours, stating that he stood for 1.5 hours during the Anzac Day Dawn Service, then walked home to rest due to experiencing knee pain. GP (26.10.17) noted that days of severe pain and limitation are usually cause by previous days of more activity. This was consistent with the boom-bust pattern of activity described by [the Applicant], and suggested that while he may be able to stand for a prolonged period on occasion this activity led to an exacerbation and is unlikely to be sustainable;
A rating of 10 points was considered, however criteria 1 (a), (b) and (c) were not met.
d.The ARO decision dated 7 February 2019 (T42, f189-196) containing the following comments (at f195):
JCA has assessed a total of 15 points (0 points Table 1; 5 points Table 3 and 10 points Table 4). I have considered the additional evidence (dated 15.11.2018 — outside of the relevant claim period) and note that Dr McIntosh opens to advise that the letter is to amend the errors in table numbers and to provide additional prognoses.
This letter still confirms that CUS has tolerance for standing, walking and sitting of 30 minutes. However, in the section titled Table 3: Lower Limb Dr McIntosh indicates that the customer is unable to use stairs without assistance (this is further clarified in the section titled Table 4: Spinal Function, in that the customer needs to be assisted out of chairs from a person or uses other furniture to lever himself up); and unable to stand for more than 5 minutes. The customer indicated in the JCA in May 2018 that, although it is acknowledged it is with difficulty, he is able to climb 10 stairs in his home and he was able to stand for 1-2 hours.
Whilst there is some evidence to consider the allocation of 10 points under Table 3 (given the evidence dated 15.11.2018), I also note that the customer has not met any the POS requirements and does not have a CITW. Therefore, I have taken the professional opinion of the Job Capacity Assessor in this instance and I agree with the allocation of 15 points under the Impairment Tables.
e.The Applicant's evidence to the AAT1, recorded as:
24. At hearing, [the Applicant] informed the Tribunal that about 12 months ago he gave up going to his bedroom located upstairs in his split level home, and now sleeps on the ground floor. He reported having difficulty with stairs but was able to manage the several stairs to his television room. He also described his increasing difficulties in going for walks, with some days proving easier than others for walks from home.
In a letter received by the Tribunal on 25 June 2019, the Applicant relevantly wrote:[50]
Yes I can do some of the activities that I was asked about but I could not do them habitually or often as after shopping I end up confined to lying down for hours. I have unstable knee joints that get very painful whilst walking and taking weight when bent and I actively avoid and minimise my use of stairs and when I have to I am pulling myself up or lowering myself down. I do not venture away from my home unless it is essential and I have no other option.
…
I also notice I was allocated 10 points for lower limb function in my previous application and now it is reduced to 5 points.
[50] Exhibit 5, Applicant’s letter to the Tribunal, received on 25 June 2019.
At the Hearing, in relation to his lower limb condition, the Applicant told the Tribunal:
·He cannot go far at all. He pushes himself. He said:[51]
[51] Transcript, page 12.
I was determined in the early days of making them work again and I had hope but it soon became apparent after going for walks and getting trapped down the road and not being able to get home for hours, you know, and the slightest thing for aggravating them.
·He has not used the stairs mentioned in the paperwork for 18 months to two years, because he fell down them a couple of times. He said he used to force himself to try and make it.[52]
[52] Transcript, page 12.
·The reference to there being several stairs down to his entertainment room is not correct, it is three stairs with a handrail which he can lower himself down and pull himself up.[53]
[53] Transcript, page 12.
·That every time he walks – what he calls walking is what others call hobbling with pain in his knees and hips. He said “it is staggering, it is limping, it is not normal.”[54]
[54] Transcript, page 12.
·There were 10 stairs up to the second level of his home and that he moved his bedroom downstairs 18 months to 2 years ago.[55]
[55] Transcript, page 13.
·His house is a split level. It has three stairs down to the entertainment room. On the bottom level is his bedroom, kitchen and bathroom. The other two bedrooms are on the upper level.[56]
[56] Transcript, page 13.
·When asked how long he could stand up for in June to September 2018:[57]
[57] Transcript, pages 13-14.
Well, in there – what I thought was standing when I was asked that question was standing. I can’t stand still unless I am – like, this is mainly how I live now. I lean up against the bar I’ve got at home and I take the weight on my elbows and I’ve got calluses and sores on both elbows to prove that and if I keep my leg locked, I can bear the weight but if I’m standing with no support I can’t. I’ve got to move a couple of steps all the time. That’s what I thought was standing.
·It is the same with sitting, when he sits he does not sit still, he is always shifting to find comfort unless sometimes he finds a place that is numb and he will stay in that position as long as he can. However, when he does move, he knows about it.[58]
[58] Transcript, page 14.
·When asked about the reference in the JCA report of him attending an Anzac Day service, that he was probably down there for one to two hours. In that time he was not standing still. He was sort of shuffling around the place and he was leaning on picnic tables, because he could not sit down. It hurt too much to get up.[59]
[59] Transcript, page 14.
·He used a walking stick for quite a while, but it was aggravating because he could not use his left hand due to his neck and shoulder. It was awkward and painful trying to use it in his right hand. He said he has two hinged knee braces and he wears them if his knees are really sore and unstable. He said his knees can wobble and give out on him.[60]
[60] Transcript, pages 14-15.
·When taken through the 10 point descriptors on Table 3 of the Impairment Tables in relation to the Relevant Period, that:[61]
[61] Transcript, pages 15-18.
oBack in 2015 and 2016 he use to walk to the shops because the doctor told him not to stop moving, otherwise he would be bedridden. He was forcing himself to walk to the shops up the road, which are about one block away. He said he would do it, but every step he made he had hip pain for the nerves pinching and he would have knee pain. It was a major effort just to go to the shops, so he started driving.
oAt that time [the Relevant Period] and even now he will get out and attempt to walk to the shop, but he will make it half way and sit on a fence and come back home. If he does make it, it takes two to three goes. He does not want to end up bedridden.
oIn June to September 2018, he was not walking as far and was driving more.
oThe reference in the JCA report of him being able to walk 500 metres or on some days several kilometres was a joke. He was being sarcastic at the time. At the time the doctor had told him to try and walk 300 to 500 metres and that is what he told the Assessor. He was trying to do that and push himself through the pain barriers until he started getting stuck up the street and could not get home.
oThe assistance he required to go up and down the couple of steps to his media room was the rail.
oHe could not go up stairs. He stopped doing that. He had tried, but it was not like walking up stairs normally. He was going sideways one step at a time, hanging onto the wall, pushing against the wall for support so he did not fall. When he is on one leg he wobbles and that aggravate his knees.
oHe could stand for more than five minutes, but would have to shift around a lot. He said he could not stand still.
oHe could drive a motor vehicle and walk around in a shopping centre or supermarket. He said he drives about 20 minutes to Sarina for his grocery shopping. It hurts, but he has to do it. He drives to Sarina because it is a small shopping centre and he can normally park within 50 metres of the front door and then he finds a trolley. Leaning on the trolley helps a lot. He normally knows exactly what he wants so he does not go up and down every aisle. He just goes in and gets the necessities which are normally just meat and vegetables. If something is on the top shelf, he ignores it unless there is someone close by to grab it for him. Nine times out of 10 he is in pain. When he walks past the cold section, it goes straight through him and he just goes back to the car. Many times he has just given up on getting everything he needed and gone back to the car and gone home.
oDuring the Relevant Period, he was using a walking stick, but has since stopped using it due to the pain it caused and that is why now he is very immobile. He is getting even less mobile around his house. He can only do so much and then he has to sit or lie down.

On cross-examination, the Applicant told the Tribunal:[62]
·He can see the local shops out his front door, it is two half street blocks down the road, probably about six houses away.
·It was fair to say that during the Relevant Period he could walk to the shops which were roughly between 100 and 300 metres away which would take at least 10 minutes both there and back as he shuffles and staggers rather than walks. The shops just had a newsagent and baker where he would buy bread. For his shopping, he drove to Sarina which is 20 minutes away.
·After any trip to town he makes, when he gets home he is exhausted and has to lie down. He tries to read a book, but finds that he is usually asleep after two or three pages.
[62] Transcript, pages 23-25.
At the Hearing, Dr McIntosh told the Tribunal:[63]
[63] Transcript, pages 30-31, 37-41.
·When taken to his report of 14 June 2018, that he maintained the Applicant’s functional capacity of 30 minutes for standing, walking and sitting.
·He would have been looking at the Impairment Tables when he was writing his report recommending impairment ratings.
·When taken to his report where he had said:
10 points for table 3 is based on him being restricted in walking away from home, unable to use stairs without assistance, and unable to stand for more than five minutes.
and asked why would he suggest that the Applicant is able to stand for more than 5 minutes when he had already flagged that he could stand, walk or sit for 30 minutes, he said:
So, I mean – I mean this is a combination. Like, his 30 minute tolerance is by obviously, walking with difficulty. But then if he’s standing within that 30 minutes, he is moving from side to side and actually mobilising to make sure his knees don’t seize up. So, with arthritis, inactivity results in the knees kind of seizing up and locking. So, the 30 minutes is a combination of standing, walking or – like, after 30 minutes weight bearing, I think, is probably a better way of putting it – he then has to take the weight off. But it’s not – it’s not – he couldn’t walk for 30 minutes, stand for 30 minutes and sit for 30 minutes, all independently.
·That the Applicant drives to the shops and walks into the shops.
·He had no recollection of the Applicant telling him that in August 2018 he could walk to his local shops. He said from his examination that unless the shops were just around the corner, as in very close, he would not have expected the Applicant to be able to do that. He would have expected the Applicant to take the car.
·In relation to the Applicant’s use of stairs, that any time the Applicant has to use his legs with any degree of flexion, the pain levels increase dramatically and that is why he has such a lot of difficulty even bending forwards and downwards. So, stepping up causes the same degree of difficulty.
·The Applicant can drive a motor vehicle, walk short distances around a shopping centre and supermarket.
·The Applicant could use a taxi, but not a bus because of the steps. He may be able to use a train, however it would depend on if there was a step.
·The Applicant can walk into the shopping centre for 30 minutes and after that he basically has diminishing capacity to do things.
·The Applicant is not able to do normal housework. He can do some types, but for the majority he is extremely limited.
At the Hearing the Respondent contended:[64]
·The Applicant’s knee condition should be considered using Table 3 of the Impairment Tables and it does not rate as high as 10 points.
·The Applicant did not meet the requirements of descriptor (1) as:
oOn the material, he was not unable to stand for more than five minutes.
oWhile the point of using stairs could be open for debate, on the evidence the Applicant has difficulty using stairs but he is not to the point that he is completely unable to use the stairs.
·While the Applicant’s ability to walk far outside his home and needs to drive to local shops is also open for debate, the evidence was that Applicant could walk to his local shops.
·The Applicant could drive to and walk around a shopping centre.
[64] Transcript, pages 50-52.
Based on the evidence before it and the contentions made by the Respondent, the Tribunal finds that the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned an impairment rating.
The Tribunal considers that based on the diagnosis of the condition and functional impairments caused, Table 3 of the Impairment Tables applies. Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.[65]
[65] Impairment Table 3 – Lower Limb Function, Part 3 of the Determination.
Relevantly, Table 3 of the Impairment Tables sets that the following descriptors have to be met for a lower limb condition to be considered to result in a mild or moderate functional impact:

5

There is a mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

(a)      the person is unable to stand for more than 10 minutes;

(b)      the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:    The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

The issue for the Tribunal is whether the Applicant’s lower limb condition should be assigned 5 or 10 impairment points under Table 3 of the Impairment Tables. The point of contention lies in whether during the Relevant Period the Applicant was unable to walk far outside his home and needed to drive or get other transport to local shops or community facilities; or was unable to use stairs or steps without assistance.
The Tribunal considers it clear on the evidence before it, that during the Relevant Period the Applicant was able to stand for more than five minutes, albeit he would regularly move around and would lean on benches or walls to take the weight off his knees; he was able to use a motor vehicle; walk around a shopping centre or supermarket using a trolley and taking necessary rest breaks; and that he used a walking stick when required.
The consideration as to whether the Applicant was unable to walk far outside his home and needs to drive or get other transport to local shops or community facilities is a little less straight forward. The Applicant’s evidence was that during the Relevant Period he could walk to his local shops, which consisted of a newsagency and bakery which was a little more than 100 metres away from his home, however this would take at least 10 minutes each way and he would often have to stop to rest along the way. The Applicant told the Tribunal that he had stopped walking to these shops as he had gotten stuck there before.
Dr McIntosh’s evidence was he was not aware that the Applicant was walking to his local shops during the Relevant Period and seems to be confused between the Applicant’s ability to get to those local shops and the shopping centre where he does his grocery shopping. Dr McIntosh’s evidence, however, was consistent that the Applicant was unable to walk long distances.
The Tribunal does not consider a walking tolerance of 100 to 300 metres to constitute being able to walk far outside of his home. During the Relevant Period, the Applicant was able to walk to his local shops, however he was unable to walk far outside of his home. If this matter was to turn on the Applicant’s ability to meet descriptor (1)(a) of the 10 point impairment rating under Table 3, the Tribunal would have sought further submissions from the Respondent in relation to their view of what constitutes “local shops”. The Tribunal considers there to be an inconsistency where a person will not meet the descriptor, because they live within 100 metres of local shops and they have been able to walk there. The Tribunal considers that they would be treated differently to those people who do not have these facilities available to them, but still have similar functional impairments.
The consideration as to whether the Applicant was unable to use stairs or steps without assistance is also less than straight forward. In giving his evidence, the Applicant clarified statements that he made that were recorded in both the JCA report and SSCSD decision. He told the Tribunal that he had stopped using the top level of his home some 18 months previously (being within the Relevant Period) as he could not use the stairs. The Applicant told the Tribunal that there are 10 stairs that lead upstairs. When he could manage them, he would have to walk sideways and use the wall to brace himself. He was unable to bend and weight bear on his knees, as would be required to walk up stair normally. The evidence of Dr McIntosh corroborated this position.
The Applicant told the Tribunal that there were only three steps that lead down into his entertainment room and that he is only able to manage them using the assistance of the handrail. The Applicant said that he uses the handrail to lower himself and pull himself up. Dr McIntosh had also reported that the Applicant’s knees are so unstable that they cause him to collapse regularly, especially going up stairs.
Based on the evidence before it, the Tribunal considers that the Applicant’s lower limb condition resulted in weak and unstable knees, which the Applicant was not able to bend, flex and weight bear on during the Relevant Period in a manner that would have allowed him to be able to use stairs or steps without assistance.
The Tribunal considers that at the Relevant Period the Applicant was unable to use stairs or steps without assistance. In his situation the Applicant sought assistance by using the hand rail not just to steady himself, but to lift and lower himself.
Consequently, based on the evidence before it, the Tribunal finds that the Applicant’s lower limb condition can be assigned 10 points under Table 3 of the Impairment Tables during the Relevant Period.
Pain Condition
In the medical reports dated 14 June 2018[66] and 15 November 2018,[67] Dr McIntosh recommends that the Applicant’s pain related functional impairments should be considered under Table 1 of the Impairment Tables.
[66] Exhibit 1, T Documents, T25, page 116, Report prepared by Dr McIntosh.
[67] Exhibit 1, T Documents, T39, pages 171-172, Report prepared by Dr McIntosh.
Dr McIntosh provided:[68]
Table 1 Overall Function
He experiences constant severe pain from his back and knees varying from 6-9/10 resulting in him having to rest in bed after short levels of activity. He is unable to perform household activities like cleaning, sweeping the house, sweeping the paths, the gardening and unable to walk more than 50m (10 point items).
Under the 20 point criteria, he would also have difficulty sustaining any work related sedentary tasks for more than 1 hour (item b) and is unable perform light household tasks or gardening. He is unable to walk into large shopping centres or large supermarkets and is only able to use local supermarkets with close car parking as his walking tolerance of only 50m. Afte that time, he needs to rest (sit or lie down). Therefore, the 20 point criteria are achieved.
[68] Exhibit 1, T Documents, T39, page 171, Report prepared by Dr McIntosh.
At the Hearing[69] and in his written closing submissions, the Applicant contended that he should be assigned 20 impairment points under Table 1 of the Impairment Tables due to his pain condition.[70]
[69] Transcript, pages 21-23.
[70] Applicant’s Closing Submissions, received by email on 10 January 2020.
At the Hearing, Dr McIntosh was taken through the descriptors for both 10 and 20 impairment points under Table 1 of the Impairment Tables.[71] As a result of this evidence, it was clear that the descriptors for both 10 and 20 impairment points were not established.
[71] Transcript, pages 31-35.
At the Hearing, the Respondent contended that:[72]
·Dr McIntosh’s evidence did not establish that the descriptors under Table 1 were met.
·The Determination provides specific requirements in relation to assessing a pain condition.
·As the pain referred to by Dr McIntosh relates to the Applicant’s knee and back pain, the functional impairments are more appropriately dealt with by considering Tables 3 and 4 of the Impairment Tables.
·There is no evidence that there is in fact a separate pain condition.
[72] Transcript, pages 49-50.
The Tribunal accepts that the Applicant experiences pain and no doubt on some occasions severe pain as a result of this spinal and lower limb conditions. However, based on the evidence before it, the Tribunal does not consider that a separate diagnosis of a chronic pain condition has been made.
Section 6(9) of the Determination sets out that there is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)Acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)Chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)Whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Section 10 of the Determination outlines that in selecting the applicable Table and assessing impairments, it is necessary to identify the loss of function; then refer to the Table related to the function affected; and then identify the correct impairment rating.
Sections 10(5) and 10(6) of the Determination provides that where multiple conditions cause a common impairment, it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Consequently, in this instance the Tribunal finds that it is appropriate to consider the functional impairments arising out of the Applicant’s spinal condition in accordance with Table 4 and those arising out of his lower limb condition in accordance with Table 3 of the Impairment Tables. To do otherwise would lead to double counting. Further, as the Tribunal has already found that the evidence before it did not establish that a 20 point impairment rating could be assigned under Table 1 and that the Applicant’s fully diagnosed, fully treated and fully stabilised conditions can be assigned 20 points across the Impairment Tables, this issue is redundant.
Does the Applicant have a continuing inability to work pursuant to section 94(1)(c) of the Act?
As the Tribunal has found that the Applicant has 20 impairment points across two impairment tables, it must now consider whether the Applicant had a continuing inability to work pursuant to section 94(1)(c) of the Act.
Pursuant to section 94(2) of the Act, as the Tribunal has not found that the Applicant has a severe impairment under at least one impairment table the Tribunal must consider whether the Applicant:[73]
(a)Has actively participated in a POS;
(b)Is unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)Is unable to participate in a training activity during the next 2 years or 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 POS within the next 2 years.
[73] Section 94(2) of the Act.
The requirements that must be met for a person to be considered to have actively participated in a POS[74] are set out in the Active Participation Determination.
[74] Section 94(3C) of the Act.
Section 7(1) of the Active Participation Determination sets out that a person has actively participated in a POS if the person has complied with the requirements of the program of support and participated in a POS during the POS Period,[75] provided the required information regarding the applicable POS[76] and that subsection (2), (3), (4) or (5) applies.[77]
[75] Section 7(1)(a) of the Active Participation Determination.
[76] Sections 7(1)(c) and 7(6) of the Active Participation Determination.
[77] Section 7(1)(b) of the Active Participation Determination.
Sections 7(2) to 7(5) of the Active Participation Determination provide:
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note:A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)the duration of the program of support was less than 18 months; and
(b)the person completed the entire program during the relevant period.
(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.
In a report to Dr McIntosh dated 6 November 2018, Dr John Schneider, occupational physician, provided:[78]
In my opinion [the Applicant] is considered unfit to resume work an position for which he is experienced, qualified or has undertaken appropriate training.
Following or while undergoing appropriate physical rehabilitation he will require vocational assessment and retraining for work not exposing him to prolonged or repeated mobilising manual handling or mobile equipment operation.
[78] Exhibit 1, T Documents, T38, pages 170, Report prepared by Dr Schneider.
In reports dated 14 June 2018[79] and 15 November 2018,[80] Dr McIntosh opined that the Applicant’s spinal and lower limb conditions “cause major reduction in his functional capacity resulting in him not being able to sustain task of a clerical or manual nature.”
[79] Exhibit 1, T Documents, T25, page 116, Report prepared by Dr McIntosh.
[80] Exhibit 1, T Documents, T39, pages 171-172, Report prepared by Dr McIntosh.

In the JCA report dated 4 February 2019, the Assessor recommended that the Applicant’s baseline work capacity was 15-22 hours per week.[81] The rationale provided was:[82]
It is recommended [the Applicant] has a reduced baseline work capacity of 15-22 hours per week, due to the permanent medical conditions and related impacts on functioning and difficulties in obtaining and sustaining employment. Functional impacts include, but are not limited to reduced tolerance for sitting, standing, walking, difficulty with walking up/down many stairs, physical restrictions, difficulty with lifting and carrying heavy loads, episodic fluctuations, reduced motivation, concentration restrictions, and reduced ability to manage stress in the workplace. This impacts on the type and duration of work he is able to engage in.
Dr Schneider indicated [the Applicant] is unfit to return to his former employment (physical roles in the mining industry) as a result of his combined conditions and he is unlikely to be able to return to any form of paid employment without access to comprehensive rehabilitation including vocational assessment and training.
[The Applicant's] With Intervention work capacity is expected to remain stable at 15-22 hours per week. Full time employment is not recommended. Specific intervention in the form of specialised job search, employment support, vocational assessment, and workplace modifications (short shifts per week and job matching) is likely to result in [the Applicant] achieving this work capacity within 24 months.
[81] Exhibit 1, T Documents, T41, pages 176-188, JCA Report.
[82] Exhibit 1, T Documents, T41, page 185, JCA Report.
In a letter dated 5 April 2019, Ms Penny Dawes, an Employment Advocate for Disability Employment Services with My Pathway, provided:[83]
[83] Exhibit 1, T Documents, T45, pages 205-206, Letter provided by Penny Dawes dated 5 April 2019.
[The Applicant] has been my client since 8.2.19. Since this time I have been supporting [the Applicant] to identify what type of work he would be suitable for. This takes into consideration the barriers that [the Applicant] has towards employment, as well as identifying the abilities that he has. During our discussions of [his] health concerns, it has become apparent that [the Applicant] would be unsuitable for paid work or volunteer work, due to the following a spinal disorder, as identified on xray reports and ESAt, resulting in;
·Constant severe back and neck pain. This includes sharp stabbing pains whilst walking. Inability to perform twisting movements
·Limited range of neck movement, with inability to bend neck forwards and side to side
·Regular headaches
·Needs to lie down to relieve pain
·Walking any distance causes pain in hips, lower back and knees. [The Applicant] can only walk slowly.
·Sitting causes pain and standing from sitting causes pain.
·Personal hygiene takes a considerable amount of time to perform and pain
·[The Applicant] is barely able to maintain the home environment in a reasonable standard, due to the pain it causes when doing household chores,
Taking this into consideration, any type of work would be impossible for [the Applicant] to perform for even the shortest periods of time. Any work involving walking, would be unable to be performed. Work involving sitting, would be unable to be performed. This rules out many occupations including retail, desk and computer work, labouring positions, driving positions, etc.
In the report dated 14 November 2019, Dr McIntosh provided the following opinion:[84]
Prognosis:
This patient is prevented solely because of his impairment from improving his capacity to prepare for, find or maintain work through continued participation in the support program. I can confirm that no program of support ould make any significant difference to improving his capacity to work within the next two years.
In fact, as previously stated, his condition will steadily deteriorate over time. The conditions have been present for several years and he has been provided with medical certificates continuously since early 2018. Additionally, participation in active work will actually cause aggravation and worsening of his symptoms and his condition so is contraindicated.
[84] Exhibit 3, Report of Dr McIntosh, dated 14 November 2019.
The evidence before the Tribunal sets out that the Applicant had actively participated in a POS for 67 days during the POS Period between 17 June 2015 and 17 June 2018.[85]
[85] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B; Exhibit 1, T Documents, T51, page 241, Program of Support.
At the Hearing, the Applicant told the Tribunal that:[86]
·When everything all started, he saw a program of support organisation and that, in the 18 months or so he was with them, he saw them in person once or twice, otherwise it was just over the telephone.
·After the last rejection, he had to go and see Community Solutions and they took one look at him and said he should not be there. They then put him straight through to My Pathway, which is where he met Ms Dawes.
·Ms Dawes said she did not know what to do either, because she could not help him. He has been “sort of running through the system and no one has really given a damn”.[87]
[86] Transcript, pages 12-13.
[87] Transcript, page 13.
On cross-examination, the Applicant told the Tribunal:[88]
·He had been with Community Solutions since he first got Newstart, but they had never done anything. He went there the first day to set it up and then after that it was just phone calls. He told the Tribunal: “then the next time I’ve seen them, was I walked in and they took one look at me about two years later and sent me to My Pathway.”
·When asked whether it would be likely that Community Solutions had not done anything because he had medical certificates, “that is a lot of the case”. He said his doctor was giving him medical certificates, because he did not think that he could do any work.
·“And like, you say that program of support’s got to be met, but then there’s exit requirements – which I knew nothing about – and nor did the doctor. So he kept giving me medical certificates and it was only recent that I was informed of being able to exit the program. Well, by then, I was off Community Solutions and with My Pathway. And I talked to the doctor, that’s why he addressed that in his last report.”[89]
·That he was with Community Solutions up to the day before he was transferred to My Pathway and he first saw Ms Dawes on 8 February 2019.
[88] Transcript, pages 26-28.
[89] Transcript, page 27.
At the Hearing, Dr McIntosh told the Tribunal:[90]
·When asked whether in his view from 2018, considering the following two years would there have been any benefit of the Applicant participating in a POS that would be able to assist him to get back to work, that:
No. No. I mean [the Applicant’s] disabilities – [the Applicant’s] restrictions – very, you know, are all the way through from his knees, all the way up to his neck. And he just doesn’t have the functional capacity to sustain work. So, this is – you know, we actually – in our clinic, we actually do occupational health rehabilitation programs. Actively returning people to work after injuries or disabilities and, you know, predominately through WorkCover. But, you know, [the Applicant] would not benefit from – first of all, doesn’t have the capacity to work in any significant manner. And because of the multiple issues he has. And, also, over time those are likely to deteriorate because they’re all degenerative problems set off by a variety of different things.
[90] Transcript, pages 44-45.
The Tribunal sought that the Respondent provide written closing submissions in relation to the issue as to whether the Applicant met the requirements of section 94(1)(c) of the Act in view of the decision in Mongan and Secretary, Department of Social Services [2016] AATA 344 (Mongan Case) and section 7(5) of the Active Participation Determination.
In their written closing submissions, the Respondent submitted that in their view the Applicant did not meet the POS requirements and did not have a continuing inability to work.[91]
[91] Secretary’s Closing Submissions, dated 19 December 2019, page 1, paragraph 3.
The Respondent contended:[92]
·That in the event that the Tribunal were to find that the Applicant can be allocated 20 points or more under the Impairment Tables, however not that he has an impairment of 20 points or more under a single table, then he would need to satisfy the POS requirements. It would then be necessary to consider whether any of the exemptions apply.
·The Applicant did not actively participate in a POS for the required period of 547 days in the 3 years prior to claiming DSP.
·The Applicant was enrolled with Community Solutions when he made his claim for DSP.
·The Applicant had only actively participated in a POS for 67 days in the POS period, because he had been exempted from participation for various periods due to medical incapacity.
[92] Secretary’s Closing Submissions, dated 19 December 2019, pages 1-4, paragraphs 4-8 and 14.
In relation to the Mongan Case, the Respondent provided:[93]
[93] Secretary’s Closing Submissions, dated 19 December 2019, pages 2-3, paragraphs 10-11.
10. The [Respondent] notes that Re Mongan, related to a DSP claim lodged on 25 November 2014 and DP McCabe found the Applicant had enough points to satisfy the requirement in section 94(1)(b). However, DP McCabe was riot satisfied Ms Mongan should be allocated 20 points or more under a single table at the relevant time. Furthermore, Ms Mongan, while enrolled in a program at the time of her claim, had not actively participated in a POS for 18 months over the 36 month period preceding the date of claim.
11. Accordingly, DP McCabe considered whether Ms Mongan met one of the exceptions in subsections 7(3) – (5) of the POS Determination. Relevantly, DP McCabe made the following comments (at paragraphs [12- 17]).
12. The requirement in s 94(1)(c) contains several elements. The [Respondent] says the problem in this case is the applicant has not actively participated in a program of support for 18 months over the 36 month period preceding the date of claim.
13. The applicant did actively participate in a program of support for about 4 months. She was enrolled in a program at the time she made the claim. She did not complete the program and was never formally exiled I note that she was required to move from Matchworks, her provider. to a new provider in August 2015 when Matchworks ceased to provide those services She did not commence on the program with Epic (the new provider) after attending an initial assessment, and no appointments were scheduled for her because she was unable to participate at the time
14. Dr Kuriakose says the applicant would not improve any more with the help of a support program: attachment B to the Secretary's Statement of Facts. Issues and Contentions. The [Respondent] pointed out Dr Kuriakose's opinion was provided in October 2015, the better part of a year after the claim and outside the 13 week period. I note Dr Kuriakose has been the applicant's treating doctor for some time and he specifically said the applicant's symptoms had not improved over the last few years. The Secretary said I should prefer the advice provided in a letter from Matchworks dated 13 October 2015 (attachment C to the Statement of Facts, Issues and Contentions). The letter said:
Ms Mongan presented with a number of hearth barriers upon commencement that were directly affecting her ability to find and maintain employment, and these activities were negotiated al a level That would allow increased capacity for employment during employment assistance.
15. The [Respondent] says that letter meant the applicant's capacity for work improved while she was participating in the program of support provided by Matchworks. The letter suggested the applicant was not.
…prevented, solely because of...her impairment, from improving...her capacity to prepare for, find or maintain work through continued participation in the program.
16. I was not so sure about all this asked the [Respondent] to arrange for a representative of Matchworks to give evidence at the hearing. Mr Paul Hethorn explained he was in charge of the disability services employment program for Matchworks in Queensland at the relevant time. He explained the applicant's case worker was a lady named Cindy. Mr Hethorn was not aware of Cindy's experience or background; she no longer Walked for the company. He was unable to provide details of the assessment that had been carried out on the applicant and the records were unclear over whether the applicant was likely to improve her capacity,
17. I am not satisfied I should rely on the report provided by Matchworks, The basis of the report was unclear and the witness called to explain the opinion was unable to do so, I prefer the opinion of Dr Kuriakose. It is consistent with the opinion of Dr Ng and Dr Kuriakose's opinion could have been given during the relevant period because the applicant's condition is essentially unchanged. The applicant is unlikely to improve her work capacity through a program of support because of her acknowledged impairments. I am satisfied she is property excused from participating in the program of support requirement in light of s 7(5) of the Social Security (Active Participation for Disability Support Pension) Determination 2014.
The Respondent submitted that it accepts that an applicant for DSP who is enrolled with an Employment Service Provider can still be taken to be “participating” in a POS (for the purposes of the exemption provisions), even if they have been temporarily exempted from active participation at the date they made their claim.[94]
[94] Secretary’s Closing Submissions, dated 19 December 2019, page 3, paragraph 12.
In relation to the exemption for having completed a POS provided for by section 7(5) of the Active Participation Determination, the Respondent contended:[95]
·It accepts that the Applicant was participating in a POS with a designated provider at the relevant period (being 17 June 2018, the day immediately before the Applicant claimed DSP).
·It accepts that even if the Applicant was medically exempted at the time he claimed DSP on 18 June 2018, he was still enrolled with a designated provider and can be taken to be participating in a POS for the purposes of section 7(5) of the POS Determination.
·This is not inconsistent with the decision in the Mongan Case.
·The Tribunal should accord greater weight to the opinions provided by the JCAs who were a qualified nurse and occupational therapist and the more contemporaneous opinion provided by Dr Schneider, who is an occupational physician, to that provided by Ms Dawes.
·The evidence weighs against finding that the Applicant was prevented solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the POS.
[95] Secretary’s Closing Submissions, dated 19 December 2019, pages 4-5, paragraphs 16-26.
In the Applicant’s written closing submissions, he provided:[96]
I have been in programs of support but as you can see I have been having treatment for my many ailments and have been on medical certificates from 28/2/2017.
Through to 31/01/2019 as my doctor did not think I should be participating in any activity that would aggravate my conditions and I was told to get the last medical certificate by the JCA. I do have another medical certificate from 01/02/2019 to 31/04/2019 but it was not accepted by Centrelink. I have not been able to work solely because of my conditions for well over 2 years.
[96] Applicant’s Closing Submissions, received by email on 10 January 2020.
In considering whether the Applicant has met the requirements for the period of participation in a POS, the evidence before the Tribunal makes it clear that the Applicant has not met the requirement of actively participating in a POS for at least 547 days of the POS Period. As such, section 7(2) of the Active Participation Determination has not been met.
The Tribunal finds that there is no evidence before it that the Applicant had completed a POS that was shorter than 18 months in duration or that he had been exited from a POS during the POS Period. As such, sections 7(3) and 7(4) of the Active Participation Determination have not been met.
Based on the evidence before the Tribunal and the concession made by the Respondent, consistently with the decision in the Mongan Case, the Tribunal finds that the Applicant was enrolled in a program of support at the end of the POS Period on 17 June 2018 and as such is considered to be participating in the POS regardless of there being a medical exception in place.
The Tribunal notes the Respondent’s contention that the evidence of the JCAs and Dr Schneider should be preferred to that of Ms Dawes based on their qualifications and timing of their reports.
In considering the evidence provided by Ms Dawes in conjunction with that provided by Dr McIntosh, the Applicant’s spinal and lower limb conditions are only going to continue to deteriorate rather than improve and his level of mobility during the Relevant Period was clearly limited. The Tribunal does not find the opinions of the JCAs and Dr Schneider persuasive.
While Ms Dawes did not see the Applicant until after both the Relevant Period and POS Period, her opinion made on 5 April 2019 relates to a time within the two years after the Applicant made his claim for DSP. It is therefore relevant to considering whether participation in a POS was likely to be of assistance to returning the Applicant to work in the two year period up to 18 June 2020.
Based on the evidence before it, the Tribunal finds that the Applicant was prevented, solely because of his spinal and lower limb conditions, from improving his capacity to prepare for, find or maintain work through continue participation in the POS.
As such, the Tribunal finds that the Applicant has, by virtue of section 7(5) of the Active Participation Determination, actively participated in a POS for the purposes of section 94(2)(a) of the Act.
For the same reasons set out in paragraphs 111-114 above, the Tribunal finds that the Applicant meets the requirements of section 94(2)(b) and (c) of the Act as, as a result of his impairments alone, he was unable to:
(a)Work for at least 15 hours per week independently of a POS within 2 years from the date of his claim for DSP; and
(b)Participate in a training activity during the 2 years from the date of his claim for DSP or that such activity was unlikely because of his impairments to enable him to do any work independently of a POS within the following 2 years.
Consequently, the Tribunal finds that at the time the Applicant made his claim for DSP had a continuing inability to work and satisfied the requirements of section 94(1)(c) of the Act.
CONCLUSION
Based on the medical evidence before it, the Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act which included mental health, prostate cancer, spinal and lower limb conditions.
Based on the evidence before it, the Tribunal finds that the Applicant’s:
·Mental health condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period and therefore cannot be considered permanent for the purposes of assigning impairment ratings under the Impairment Tables;
·Prostate cancer condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned zero points under Table 1 of the Impairment Tables;
·Spinal condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 10 points under Table 4 of the Impairment Tables;
·Lower limb condition fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 10 points under Table 3 of the Impairment Tables; and
·Pain condition was not a separate condition for the purposes of applying the Impairment Tables.

The Tribunal finds that at the Relevant Period the Applicant’s impairments attracted 20 points under the Impairment Tables and that the requirements of section 94(1)(b) of the Act were met.
Based on the evidence before it, the Tribunal finds that the Applicant had a continuing inability to work at the date of his claim for DSP and therefore met the requirements of section 94(1)(c) of the Act.
DECISION
The Tribunal sets aside the decision of the SSCSD dated 27 May 2019 and substitutes a decision that the Applicant met the eligibility requirements of section 94(1) of the Act and was qualified for DSP at the date of his claim on 18 June 2018.

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

....................................[SGD]....................................
Associate
Dated: 8 May 2020

Date of Hearing: 2 December 2019

Date of last submission received: 10 January 2020

Applicant: By telephone

Solicitors for the Respondent: Mr Rick McQuinlan
Services Australia

Date of Hearing:	2 December 2019
Date of last submission received:	10 January 2020
Applicant:	By telephone
Solicitors for the Respondent:	Mr Rick McQuinlan Services Australia