Secretary, Department of Social Services and Dennis Austin
[2015] AATA 441
•24 June 2015
[2015] AATA 441
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/0104
Re
Secretary, Department of Social Services
APPLICANT
And
Dennis Austin
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 24 June 2015 Place Adelaide The decision under review is set aside and in substitution for that decision it is decided that, during the relevant assessment period, Mr Austin was not qualified for disability support pension.
.............. [Sgd] ..........................
Deputy President K Bean
CATCHWORDS
SOCIAL SECURITY - Disability support pension - Whether respondent's lumbar spine condition and depression fully diagnosed, treated and stabilised - Whether impairments attract a rating of 20 points or more under the Impairment Tables - Respondent did not participate in program of support - Whether severe impairment - Need for corroborating evidence of impairment - Decision under review set aside.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
CASES
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
REASONS FOR DECISION
Deputy President K Bean
24 June 2015
On 26 February 2013, the respondent, Mr Austin, lodged a claim for disability support pension (DSP). That claim was rejected both at first instance and upon review by a Centrelink Authorised Review Officer. Mr Austin subsequently sought review by the Social Security Appeals Tribunal (SSAT) and on 11 December 2013, the SSAT decided that, subject to all other requirements being met, he was eligible to receive DSP from the date of his claim as he satisfied the provisions of subs 94(1) of the Social Security Act 1991 (the Act).
However, on 9 January 2014, the applicant, the Secretary of the Department of Social Services (the Secretary), lodged an application with this Tribunal for review of the SSAT’s decision, giving rise to these proceedings.
I should note that at the conference stage, Mr Austin apparently informed the Tribunal that he no longer wished to participate in the proceedings. Nevertheless, the Tribunal attempted to contact Mr Austin prior to and at the outset of the hearing, but was unsuccessful. Accordingly, the hearing proceeded in his absence and the matter was part-heard. Notwithstanding further attempts to contact Mr Austin following the adjournment of the hearing, he did not attend the subsequent directions hearings or make any submissions in respect of this application. Ultimately, at the request of the Secretary, I decided to determine the matter on the basis of the material before me, without resuming the hearing.
LEGISLATION AND ISSUES
In broad terms the issue before me is whether Mr Austin was qualified for DSP as at the date of his claim on 26 February 2013 or within 13 weeks of that date (the assessment period).[1]
[1] Social Security (Administration) Act 1999, Schedule 2, clause 4.
Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act), which, at the relevant time, relevantly provided as follows:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
…
Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D) The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E) The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
…
Other definitions
(5) In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
…
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
...
I will first address the impairment requirements specified by subss 94(1)(a) and 94(1)(b), before considering the other qualification requirements insofar as it is necessary for me to do so.
DOES MR AUSTIN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
The Secretary does not dispute that Mr Austin suffers from physical and psychiatric impairments, namely a lumbar spine condition and depression, and therefore satisfies subs 94(1)(a) of the Act.
AT THE RELEVANT TIME, DID MR AUSTIN HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
As set out above, subs 94(1)(b) of the Act requires that a person have 20 or more points under the Impairment Tables. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains rules for applying the Impairment Tables, as well as the Impairment Tables themselves.
The Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:
·the condition causing the impairment is permanent; and
·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.
Further, for a condition to be considered permanent under the Determination:
·the condition must be fully diagnosed by an appropriately qualified medical practitioner;
·the condition must be fully treated and fully stabilised; and
·the condition must be more likely than not to persist for more than two years.
Subsection 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:
·whether there is corroborating evidence of the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or planned in the next two years.
Subsection 6(6) provides that a condition is fully stabilised if:
·the person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, and there is a medical or other compelling reason for the person not to undertake such treatment.
Subsection 6(7) provides that reasonable treatment is treatment that:
·is available at a location reasonably accessible to the person; and
·is at a reasonable cost; and
·can reliably be expected to result in a substantial improvement in functional capacity; and
·is regularly undertaken or performed; and
·has a high success rate; and
·carries a low risk to the person.
Subsection 8(1) of the Determination provides that:
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
Section 10 provides:
Single condition causing multiple impairments
(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
I propose to first consider whether Mr Austin’s lumbar spine condition attracts any impairment points under the Impairment Tables, before turning to his psychiatric condition.
Lumbar Spine Condition
Was the condition fully diagnosed, treated and stabilised?
The Secretary relies on a report of an Occupational Physician, Dr Thoo, dated 15 April 2014 in support of his contention that Mr Austin’s lumbar spine condition was not fully diagnosed, treated and stabilised during the assessment period. In that report, Dr Thoo stated:
I do not consider that it was fully diagnosed as he did not have his MRI scan until 27 November 2013 ...[2]
Dr Thoo’s diagnosis was as follows:
Mr Austin presents with symptoms and signs which are consistent with symptomatic lumbar spondylosis and bilateral sciatica involving the L5 or S1 nerve roots, particularly on the right. Results of the CT and MRI scans however, showed that the normally expected level where such radiculopathy would occur, namely L5/S1 is relatively normal. He does have evidence of moderate facet joint degenerative changes at the L5/S1 level and disc bulges at L3/4 and L4/5. There was evidence of possible irritation of the left L4 nerve root at the L4/5 level.
Mr Austin’s reported level of pain and incapacity is in general terms greater than what could be explained from the findings of the scans.[3]
[2] Exhibit 3, p 5.
[3] Exhibit 3, p 4.
However, in a medical report dated 26 February 2013, Mr Austin’s then General Practitioner, Dr Martin, diagnosed Mr Austin as having an “L4,5 disc lesion” and noted “CT scan consistent with clinical findings”.[4] The CT scan is dated 22 February 2013 and relevantly provides:
At L3/4: There is a broad based posterior disc bulge. ... there is a moderate central canal stenosis at this level. Some anterior spondylitic spurring is noted.
At L4/5: There is a prominent posterior disc bulge ... and there is again moderate narrowing of the central spinal canal. The left exit foramen is relatively narrow at this level and would be a potential cause for left L4 nerve root irritation.
...
At L5/S1: There is no disc protrusion. There is no central canal or foraminal compromise. There is minor anterior spondylitic lipping.[5]
[4] Exhibit 1, T16/158-159.
[5] Exhibit 1, T14/131.
The result of the MRI scan referred to by Dr Thoo was largely consistent with the CT scan, although it showed a “minor broad based disc bulge” at L5/S1 with “moderate facet joint degenerative changes”, but no significant central canal stenosis or foraminal narrowing.[6]
[6] Exhibit 2.
Having regard to the medical evidence, I am satisfied that Mr Austin’s lumbar spine condition was fully diagnosed during the assessment period. In particular, I consider that the subsequent MRI scan did not change the substantive nature of Dr Martin’s diagnosis.
The Secretary further contends that Mr Austin’s lumbar spine condition was not fully treated and stabilised, on the basis that there are other treatment options available to him. In his report, Dr Thoo suggested:
·A more aggressive pharmacological approach;
·Targeted cortisone injections;
·A physical rehabilitation program; and
·Surgery (although the Secretary accepts, and I am also satisfied, that surgery is not ‘reasonable treatment’ in this case).[7]
[7] Applicant’s Statement of Facts, Issues and Contentions dated 26 September 2014, p 7 at [8.21].
However, Dr Thoo also recorded the following history:
Mr Austin reports that whilst he was in Alice Springs he was prescribed Panadeine Forte for his back pain. He reported that this caused him adverse side-effects and made him sick and he had to stop the medication. About 2 months ago he was commenced on Tramal 100 mg but is wary of taking this medication due to his past experience with Panadeine Forte. He is currently not on any other medication. He is having no other prescribed treatment.[8]
...
He reports that he has been assessed at the Spinal Unit on a number of occasions and about 2 months ago had a steroid injection to his back (the exact nature of which he was not sure) without any benefit.[9]
A more recent report from Mr Austin’s former medical clinic notes that:
Mr Austin has suffered from chronic back pain and has had a lot of problems trying to get the pain under control as he has been sensitive to or intolerant of numerous medications.[10]
[8] Exhibit 3, p 3.
[9] Exhibit 3, p 2.
[10] Report of Dr McDonald from Umoona Tjutagku Health Service dated 10 March 2015.
Based on the evidence of Mr Austin’s difficulty tolerating a number of medications, I am not satisfied that as at the time of the assessment period a more aggressive pharmacological approach was likely to result in significant functional improvement within two years. Nor am I satisfied that cortisone injections would have been likely to result in significant functional improvement, noting that Mr Austin had a steroid injection in early 2014 which was not effective.
The Secretary referred me to Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, in which Deputy President Handley said:
In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with [sic] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
This is supported by the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404. Gyles J stated at [1] that as an applicant’s entitlement to DSP must be considered at the date of claim and within the 13 week period, “Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except in so far as it may cast light on the position at the relevant time”.
The language in cl 6(5) and (6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within 2 years, that is not the question for the tribunal to determine. The legislation requires the tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the tribunal’s decision.
In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, the tribunal stated at [34]:
[34] In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.
As noted above, this does not mean that a later opinion is irrelevant. For example, it could be open for an expert to come to a conclusion after the relevant period, based on the symptoms and success of treatment during the relevant period, that a condition was intractable at that time.[11]
However, with respect to Deputy President Handley, I am not persuaded that the Tribunal may not have regard to what subsequently transpired in determining what was likely to occur at an earlier point in time. I understand the position to be that, in making findings as to the state of affairs at an earlier point in time, and what could be considered likely to eventuate at that time, the Tribunal may have regard to evidence which comes into existence later. In my view, it is consistent with that proposition for the Tribunal to have regard to what actually happened in determining what was likely at an earlier date, namely during the assessment period. I also note there is no inconsistency between that proposition and the observations of Gyles J in Harris. Accordingly, I am satisfied that it is permissible for me to have regard to the effect of Mr Austin’s cortisone injections in 2014, and his continuing difficulties with medication after the assessment period.
[11] At [31]-[35].
With respect to a physical rehabilitation program, I note that Dr Thoo expressed reservations about whether facilities would be available to Mr Austin in Coober Pedy. The Secretary contends that Mr Austin may be able to consult a visiting physiotherapist in Coober Pedy who would be able to prepare a physical rehabilitation program for him, or access such a program through the Royal Adelaide Hospital. However, having regard to Mr Austin’s physical limitations, I do not consider that such treatment is ‘reasonably accessible’ to him so as to constitute reasonable treatment. Further, there is limited evidence before me as to the success rate of physical rehabilitation programs, or whether such a program can reliably be expected to result in a substantial improvement in functional capacity in Mr Austin’s case.
Accordingly, I have concluded that Mr Austin’s lumbar spine condition was fully diagnosed, treated and stabilised during the assessment period.
What is the applicable impairment rating?
In addition to his lower back pain, Mr Austin also experiences leg pain.[12] Accordingly, I am satisfied that it is appropriate for me to have regard to both Table 3 and Table 4 of the Impairment Tables, which relevantly provide as follows:
[12] See Exhibit 3.
Table 3 – Lower Limb Function
Points
Descriptors
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.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Table 4 – Spinal Function
Points
Descriptors
5
There is a mild functional impact on activities involving spinal function.
(1) The person has some difficulty in:
(a) activities over head height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10
There is a moderate functional impact on activities involving spinal function.
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c) the person is unable to bend forward to pick up a light object placed at knee height; or
(d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20
There is a severe functional impact on activities involving spinal function.
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
The Introduction to both Tables provides that self-report of symptoms alone is insufficient, and there must be corroborating evidence of the person’s impairment. Examples of corroborating evidence include, but are not limited to:
·A report from the person’s treating doctor;
·A report from a medical specialist confirming diagnosis of conditions associated with the lower limb or spinal function impairment;
·In the case of spinal function (Table 4), a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury;
·In the case of lower limb function (Table 3):
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (x-rays or other imagery) and physical tests or assessments.
In a supplementary report dated 5 December 2014, Dr Thoo concluded that Mr Austin’s lumbar spine condition attracts a rating of 10 points under Table 3, and a further 10 points under Table 4.
However, one of the difficulties for Mr Austin is that there is no evidence that, as at the assessment period, he had participated in a program of support as required by subs 94(1)(c) and subs 94(2)(aa) of the Act. Accordingly, he cannot qualify for DSP unless he has a severe impairment of 20 points or more under a single Impairment Table.
The SSAT recorded that at the hearing on 11 December 2013:
Mr Austin said he cannot lift his arms above shoulder height as this worsens his low back pain. Cups and kitchen items are at bench height. He cannot hang washing on the line and puts the washing over his furniture.
Given that the criteria for a 20 point rating under Table 4 makes reference to overhead activities, I directed the Secretary to obtain a report from Mr Austin’s General Practitioner during the assessment period, Dr Martin, or the appropriate practitioner if he was no longer available, directed to the following issues:
(i) Having regard to the period from 26 February 2013 to 27 May 2013, did Mr Austin report any difficulties with overhead activities?
(ii) If not, having regard to the nature of Mr Austin’s back condition, would you expect that he would have had difficulties with overhead activities?
(iii)Would you accept that Mr Austin had the difficulties referred to above in the period from 26 February 2013 to 27 May 2013?
(iv) Would you consider that Mr Austin was unable to perform any overhead activities during the relevant period?
As Dr Martin was no longer at the relevant practice, a report dated 10 March 2015 was prepared by another doctor from the same practice, Dr McDonald, which stated:
a) there is no record of Dennis Austin specifically reporting difficulties with overhead activities but in May 2013 he did report pain in his shoulders and neck as well as in his hips and low back.
b) Mr Austin has suffered from chronic back pain and has had a lot of problems trying to get the pain under control as he has been sensitive to or intolerant of numerous medications. As he complained of shoulder and neck pain in May 2013, it is possible that this this (sic) could have affected overhead activities.
c) I accept that Mr Austin could have had the difficulties referred to ... in the period from 26/2/2013 to 27/5/2013 although there is no specific reference to them on our case notes.
d) I cannot make comment about this.
Subsection 8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”. As alluded to above, the Introduction to Table 4 requires that there be corroborating evidence of the person’s impairment. “Impairment” is defined in the Determination as “loss of functional capacity ... that results from the person’s condition.” Having regard to the Determination, it would appear that the need for corroborating evidence goes to both diagnosis (subsection 6(5)(a) of the Determination) and functional impact of a condition. By way of example, I note that there is a distinction in the Introduction to Table 4 between a report from a medical practitioner which merely confirms diagnosis of a condition associated with spinal function impairment, and a report from a physiotherapist which confirms the loss of range of movement or other effects of the spinal disease or injury.
The Secretary submits that there is no corroborating evidence of Mr Austin’s inability to perform any overhead activities. Accordingly, one of the issues for my determination is whether Dr McDonald’s report constitutes “corroborating evidence” of Mr Austin’s self-reported impairment. Unfortunately for Mr Austin however, I do not consider Dr McDonald’s report to be “corroborative” of any difficulty with overhead activities related to his back condition. Nor is there any other evidence before me which I consider “corroborates” Mr Austin’s report of difficulty with overhead activities as a result of his back condition.
In the light of Mr Austin’s evidence to the SSAT that he “cannot bend forward to reach a desk or table on most days”, I have also considered whether Mr Austin could potentially attract a rating of 20 points under Table 4 on that basis. However, again, I have been unable to find any medical evidence which corroborates that complaint.
Consistently with Dr Thoo’s opinion, I have accordingly concluded that Mr Austin’s lumbar spine condition attracts a rating of 10 points under Table 4. I also accept Dr Thoo’s opinion that Mr Austin’s related leg symptoms attract a rating of 10 points under Table 3, noting that there is no evidence before me which supports a higher rating.
Depression
Was the condition fully diagnosed, treated and stabilised?
The Secretary contends that Mr Austin’s depression was not fully diagnosed because the diagnosis was not made by a psychiatrist or a clinical psychologist, as required by the Introduction to Table 5 (Mental Health Function). The Secretary referred me to a medical report of Dr Scrimgeour, a general practitioner, dated 23 May 2013 in which the doctor noted that Mr Austin had been referred to a psychiatrist and was awaiting “specialist review”.[13]
[13] Exhibit 1, T19/180-181.
On the evidence before me, I am not satisfied that Mr Austin’s depression was fully diagnosed during the assessment period. Accordingly, an impairment rating cannot be assigned for this condition.
Overall Impairment Rating
It follows that I am satisfied that Mr Austin has impairments attracting 10 points under Table 3, and a further 10 points under Table 4, consistently with Dr Thoo’s opinion. However, I am not satisfied that he has an impairment attracting 20 points under one Table.
As I have noted above, there is no evidence before me that Mr Austin has participated in a “program of support” so as to satisfy subs 94(2)(aa) of the Act. Accordingly, during the relevant period, he did not satisfy the qualification requirements for disability support pension.
CONCLUSION
For the reasons given above, I am not satisfied that, during the assessment period, Mr Austin had a “severe impairment”, or that he satisfied the program of support requirement set out in subs 94(2)(aa) of the Act. Accordingly, he was not qualified for disability support pension during that period. I am therefore obliged to set aside the decision under review and substitute a decision that, during the assessment period, Mr Austin was not qualified for disability support pension.
DECISION
The decision under review is set aside and in substitution for that decision it is decided that, during the relevant assessment period, Mr Austin was not qualified for disability support pension.
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean. ........ [Sgd] .........................................
Associate
Dated 24 June 2015
Date of hearing 20 November 2014 Date final submissions received 14 April 2015 Solicitors for the Applicant Sparke Helmore Lawyers Respondent No appearance
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