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

Stagbar and Secretary, Department of Social Services (Social services second review) [2020] AATA 4913 (25 November 2020)
Division:GENERAL DIVISION
File Number(s):2020/1117
Re:Wayne Stagbar
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Thompson
Date:25 November 2020
Place:Adelaide

The Tribunal sets aside the decision under review.
........................[sgnd]................................................
Member I Thompson
Catchwords
SOCIAL SECURITY – disability support pension – whether medical conditions diagnosed, treated and stabilised during the qualification period - whether an impairment rating of 20 points or more existed under the Impairment Tables- decision under review set aside.
Legislation
Social Security Act 1991 (Cth), s 94
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
Cases
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Gallacher v Secretary, Department of Social Services (2015) FCA 1123

Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I Thompson
25 November 2020
INTRODUCTION

The applicant Wayne Stagbar lodged a claim for disability support pension (DSP) on 29 April 2019. Centrelink rejected the claim in the first instance and Mr Stagbar requested a review of that decision. An authorised review officer (ARO) of Centrelink subsequently affirmed the decision. Mr Stagbar requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1). The decision under review was affirmed. Mr Stagbar applied to the General Division of the Tribunal for a second review.
The hearing took place on 6 October 2020. Mr Stagbar attended the hearing and was represented by Ms Riley. Ms Forsyth represented the respondent, the Secretary, Department of Social Services.
Mr Stagbar gave evidence on oath. He called one witness, Ms Braunack. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.
Mr Stagbar is now 57 years old. His claim for DSP listed his disabilities or medical conditions that significantly affect his ability to work as “ribs/abdominals, right arm and shoulder, left shoulder, lower back, right elbow, right hand.”[1]
[1] T22 p 151
LEGISLATION AND ISSUES
Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The qualification period in this case is 29 April 2019 to 29 July 2019.
Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:
(a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and
(b)They have actively participated in a “program of support”.
The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
Accordingly, Mr Stagbar will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work.
In Mr Stagbar’s statement of facts and contentions it was submitted that his impairment rating is 20 pints under Impairment Table 1(functions requiring physical exertion and stamina),10 points under Impairment Table 2 (upper limb function) and with a continuing inability to work he meets the requirements of s 94 of the Act at the date of the DSP claim.[2] Alternatively, it was also suggested that the Tribunal could assess the effects of the injuries as a whole that results in chronic pain and restricted movement which could be addressed under Impairment Table 1 as having a severe effect on activities requiring physical exertion or stamina.
[2] Exhibit 2
The Secretary accepted that Mr Stagbar suffers from an impairment and therefore satisfies s 94(1) (a) of the Act. However, the Secretary contended that Mr Stagbar does not satisfy s 94 (1) (b) of the Act, with an impairment rating of 10 points under Impairment Table 1 arising from the chest injury and a rating of zero points under Impairment Table 2 for the upper limb condition, and therefore does not have a continuing inability to work under section 94 (1) (c) of the Act.[3] It was submitted that the decision under review to reject the DSP claim was the correct and preferable decision and it should be affirmed.
[3] Exhibit 3
The main issue for determination is whether Mr Stagbar’s impairments could be assigned 20 points or more under the Impairment Tables during the qualification period and, if so, whether he had a continuing inability to work.
EVIDENCE
Mr Stagbar gave evidence, which was consistent, clear and honest. His demeanour and candour were impressive. He told the Tribunal about his long history of work as an industrial sewing machine mechanic and commercial ceiling fixer. He described the serious injuries that he sustained in a workplace accident and subsequently in a motorcycle accident, the treatment that he received, and the adverse impacts from those injuries. Taken together they have led to him losing his work and his enjoyment of life.
At the time of his DSP claim, Mr Stagbar said that he was experiencing pain in both shoulders, the mid torso, right arm and left elbow. There was a constant base level of pain. He had weakness in the torso and right arm. He had to limit his activities and become accustomed to boundaries and thresholds of pain. If he went beyond those boundaries and exceeded the threshold he must lay down and rest. He made significant changes to his lifestyle because of the pain. Previously he enjoyed physical and recreational activities. He has interests in blacksmithing and sewing, and he used to be active with motor cycling, riding bicycles, jogging and weightlifting. All of that is in the past.
His routine at the time of making the DSP claim involved waking up between 7.30 and 8.30 am after non-refreshing sleep because of difficulty getting a comfortable, sleeping position. He showers twice each day as the warm water helps to relieve pain and discomfort. He has problems using a towel. Leaning forward is painful through a compression effect. He wears pull-on clothing and shoes. After breakfast he walks around the block for about ten minutes over about 500 metres and then lies down at home. His routine during the day includes regular lying down after moving about inside or outside the house.
Mr Stagbar resides in his own home with a friend, Ms Braunak, who resides there rent-free in exchange for carrying out all the domestic task associated with daily living. During the qualification period and thereafter she has done the cooking, cleaning and shopping as they are tasks which he cannot perform regularly and successfully. He can cook sausages on a barbeque and likes to do it two or three times per week. He can use a toaster. However, he has difficulty and discomfort with standing, sitting, leaning forward, stretching, twisting, pushing, pulling and bending. Any type of strain on his chest is painful. His right-hand grip is affected because of pain which is problematic as he is right hand dominant. At the time of his DSP claim, he was no longer having treatment for the right arm and shoulder, and no longer having treatment for the chest and torso.
Mr Stagbar described his routines of daily living at the time of the qualification period. He uses a laptop computer with a cordless mouse. He props himself on a 3-seater couch with a pillow and cushions to get in a position to use the computer which is set up on a small table next to him. He props up on the couch to enable him to guide the mouse. He has trouble holding a book. He gets pain in the torso if he leans, twists or bends his body too quickly. He feels abdominal and torso pain if he climbs two or three steps. He avoids driving a car as much as he can, and he has a van with a high steering wheel which he finds easier to use. After a 15-minute drive he must lay down and rest for 30 minutes. Sitting for much longer cause tightening in his torso and can lead to cramps which he described as agonising. He must be mindful of his physical limitations otherwise he suffers pain if he leans over too quickly or twists or bends his body too quickly or too far.
His co-resident Ms Braunak does the vacuuming, floor cleaning, laundry, hanging out clothes, changing sheets and mowing the lawn. Those activities cause Mr Stagbar too much abdominal and torso pain. She also does the household shopping. Mr Stagbar lifts containers which weigh less than 1 litre. He feels pain in his arm if he lifts a 2-litre item.
Mr Stagbar has raised garden beds in his small back yard. He can do some light work in the garden provided it is at waist height. He grows vegetables in a small number of raised boxes and pots, and he uses a small trowel to enable him, as he described it in his evidence, “to scratch around in the garden”. He does not use heavy garden implements. He likes to spend time outside. He can do some occasional work in the garden for about 30 minutes often on a Sunday. It’s important for him to maintain some movement for his physical wellbeing, and to overcome boredom.
Ms Braunak provided a written statement[4] and gave evidence by telephone. She has known Mr Stagbar for about 15 years. She confirmed the arrangements at home in relation to her role and responsibility for domestic tasks including cooking, cleaning and laundry. She confirmed the daily routines and patterns at home. She notices Mr Stagbar lies down, then gets up and moves around for about 15 minutes.
[4] Exhibit 2 annexure 2
Ms Braunak confirmed that Mr Stagbar has reduced his social activities to the point that they are almost non-existent. On the rare occasion that he drives his car it will only be to go to the doctor or to buy necessities. She does most of the gardening including digging and mowing the lawn. She said that he potters in the garden. Having known him before his accidents, Ms Braunak has seen his physical conditions deteriorate and his social activities decline.
Medical evidence
Mr Stagbar sustained an injury at work in July 2010 when he tore a tendon in the right forearm. It was a significant injury noted in a medical certificate by Dr Donohoe on 28 October 2010 resulting in pain and loss of function in the right arm.[5] Dr Donohoe has been Mr Stagbar’s general medical practitioner since 2005.
[5] T 4 p 102
In a report dated 29 April 2019, Dr Donohoe referred to the workplace accident in 2010 and the complications which ensued. They included operations and extended rehabilitation. Despite the medical interventions, Mr Stagbar did not regain functional capacity to use the right arm in his work as a celling fixer.
Dr Donohoe described the injury to Mr Stagbar’s right forearm and elbow in this way: - “He sustained an injury to his arm following hyperextension while lifting a heavy giprock panel. Right epicondylitis and right radial tunnel syndrome. Surgery improved the epicondylitis however the radial tunnel syndrome has never improved. He had a number of operations and multiple input from hand physiotherapist and occupational therapists. While there was some mild improvement to his pain, once he used any force at all with this arm he developed severe pain and this typically lasts 3 to 4 days before he can usefully use this for even basic activities of daily living. He did for a time work part-time in the building industry after some years but was unable to engage as fully as he had done prior to his injury.”[6]
[6] T 23 p 158
An x-ray and ultrasound of the left shoulder on 17 January 2017 revealed supraspinatus tendinosis and subacromial bursitis with impingement[7]. A diagnostic imaging report on 8 June 2017 concluded there were features consistent with subacromial bursitis and rotator cuff impingement.[8]
[7] T 6 p 110
[8] T 11 p 86
Mr Stagbar sustained serious injuries in the motorcycle accident in April 2017. Dr Donohoe described those injuries, their impact and treatment as follows: - “While riding his motorcycle he crashed fracturing ribs number three, five, six, seven, eight and nine anteriorly and ribs four and 10 posteriorly. He also sustained a haemo pneumothorax (collapsed lung with major bleed). This required emergency surgery and intensive care stay. The rib fractures have repaired however he has been left with chronic pain and a complete inability to use his left arm in particular about his trunk in general for any sustained physical activities. As with his previous forearm injury he engaged fully with physiotherapy and has made very valiant efforts to return to some form of physical activity and work which has unfortunately been unsuccessful.”[9]
[9] T23 p 159
Physiotherapy reports in December 2018[10] and February 2019[11] provide details of the extensive treatment that Mr Stagbar had for soft tissue thickening and tightness, pain from pushing and pulling movements, trunk extension and right rotation, overhead arm movements and discomfort from deep breathing on exertion. Progress was slow and despite some immediate benefits the positive results were not sustained.
[10] T16 p 132
[11] T 18 p 134
A report from the Queen Elizabeth hospital on 15 August 2018, over a year after the motor cycle accident, provided a clinical summary which included findings of subacromial impingement in the left shoulder and chronic left side rib pain which was thought to be due to costochondritis and development of scar tissue.[12]
[12] T15 p 130
In February 2019 because of persistent post-traumatic injuries Mr Stagbar underwent ultrasound-guided right subacromial bursal and lateral elbow injections. By that time extensive physiotherapy treatment was also coming to an end as Mr Stagbar was having some frustration with the recovery, inability to return to work and to carry out other functional activities.
Mr Stagbar was examined by an occupational physician; Dr Brown and she provided a report written on 13 June 2020[13] in which she confirmed the two major musculoskeletal injuries which Mr Stagbar suffered:
(a)“2010 - right lateral epicondylitis and posterior interosseous nerve entrapment affecting the right elbow, forearm and hand “
(b)2017 – multiple rib fractures, haemopneumothorax in the left chest”
[13] Exhibit 2 Annexure 1
CONSIDERATION
Cases such as Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922, affirmed by the Federal Court in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, confirm that the Tribunal can only consider an applicant’s qualification for DSP within the qualifying period. Evidence such as medical reports that were prepared after the qualification period, are relevant insofar as they may cast light on Mr. Stagbar’s medical condition during the qualification period.
Impairment Tables
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.
Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.
The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.
Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated, requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
The applicable impairment rating for Mr Stagbar’s condition will be considered in turn by reference to the Impairment Tables.
Functions requiring physical exertion and stamina
A Job Capacity Assessment (JCA) report was submitted on 6 September 2019.[14] This report noted the conditions following the 2010 workplace accident and the 2017 motorcycle accident were fully diagnosed, treated and stabilised. The conditions were considered in two groups, namely musculo skeletal disorder from the motorcycle accident, and the earlier but continuing problems involving bursitis, capsulitis and tendonitis involving the left elbow, left shoulder, right elbow epicondylitis, and right radial tunnel syndrome.
[14] T 11 p163
The JCA report recorded functional impacts for Mr Stagbar which included pain on extension and thoracic extension and flexion with chronic left sided rib pain and restrictions in overhead activities. Further, Mr Stagbar was noted to be suffering from pain in the right forearm and hand after use, a limited ability to reach overhead with the left shoulder and an inability to do much physical, domestic work including cooking and cleaning. It was reported that he could carry a 1-kilogram milk carton, write with pen and pencil and use a computer for about 10 to 15 minutes. As a result of his left sided chest wall pain he must cease what he is doing after 20 to 30 minutes. It was also noted that he suffers right hand cramps if he uses the hand too much.
The occupational physician, Dr Brown, reported on the residual impairment from the 2010 injury to the right elbow, forearm and hand. She wrote: -
“Mr Stagbar continues to suffer from disability in his right dominant arm. There is intermittent pain in the arm in cold weather and if he overuses it. There is not much pain at rest when he does not use it. There is numbness and paraesthesia in the thumb and index finger if he overuses it… This means he can do most things for a while, but not repetitively. He is not fit for grasping, manipulating, or lifting, using the right hand in a sustained manner.”[15]
[15] Exhibit 2, Annexure 1
In addition to the difficulties with the right upper limb from the 2010 workplace accident, Mr Stagbar now contends with significant, residual problems that affect his left lower chest and upper abdomen following the 2017 motorcycle accident. Dr Brown confirms that extensive physiotherapy to reduce consistent pain and stretch scar tissue had only limited success. This means, as Dr Brown notes, that Mr Stagbar :- “… in spite of 23 episodes of physiotherapy in 2017/2018 has been unable to improve the function of his left anterior chest wall and attached abdominal musculature sufficient to allow him to return to work… Tasks requiring musculoskeletal activity and maintaining sustained postures while standing and sitting are performed for short periods with frequent breaks in between… If he exerts himself with activity, he needs to lie down until the pattern settles. Sometimes this takes 1 to 2 days.”[16]
[16] Exhibit 2, Annexure 1

Dr Donohoe confirmed in his report that the chronic pain in the right forearm and left-sided chest are unlikely to improve in the long term. Dr Donohoe confirms that Mr Stagbar has problems with light daily activities, and they are liable to leave him with severe pain which can last for a number of days. Dr Donohoe wrote that Mr Stagbar: - “has shown an incapacity for sustaining work-related tasks however light for any continuous period of at least three hours.”[17]
[17] T 23 p 158
In addition to the chronic pain in Mr Stagbar’s right forearm and left-sided chest, Dr Donohoe wrote that the use of his left arm is :-“ compromised by the chronic clinical impingement to left shoulder; but any use of this arm stirs up left-sided chest wall pain to the extent he needs to cease using this arm after a period of 20 to 30 minutes activity.”[18]
[18] T23 p 67
Dr Donohoe suggested that the combination of Mr Stagbar’s conditions should be viewed as upper body activity. While Mr Stagbar does not specifically have a spinal injury: - “all of his fractured ribs do insert into the spine and nerve supply to the anterior chest comes from the spine via the ribs. Given the multiple fractures in all the ribs it is likely that part of his chronic pain is contributed to by the avulsion of the nerves………. Given the chronicity of his pain it is unlikely that this neuropathic pain in his chest wall is ever likely to improve.”[19]
[19] T 23, p 159, reported by Dr Donohoe
Dr Brown’s report and Dr Donohoe’s report confirm that Mr Stagbar continues to have impairment of function through chronic pain as a result of the workplace accident in 2010 and the motorcycle accident in 2017. He has that sustained pain in the right elbow, forearm and hand, in the left shoulder and the use of the left arm, in the left lower chest and upper abdominal area.
Having regard to the medical evidence the Tribunal considers that the functional impact of Mr Stagbar’s impairments arising out of the chest injury and the upper limb injury are most appropriately addressed under Impairment Table 1. He has chronic pain and restrictions which cause him considerable functional impairment in activities that require minimal amounts of physical exertion or stamina. It would be artificial to try to separate the functional impact of the impairments of the chest condition and the upper limb condition through application of each Impairment Table 1 and Table 2.
For a moderate functional impact on activities requiring physical exertion or stamina, Impairment Table 1 provides the following descriptors:

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)       is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)      is able to:

(i)       use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

47.     For a severe functional impact Table 1 states:

Points

Description

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)     The person:

(a)   usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i) walk (or mobilise in a wheelchair) around a shopping    centre or supermarket without assistance; or

(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii) use public transport without assistance; or

(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

The Tribunal accepts Mr Stagbar’s evidence about his condition and its effects. It is important to note the requirements set out in the Rules for applying the Impairment Tables at rule 11(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 once or rarely.”[20]
[20] T3 p 36
Mr Stagbar’s chronic pain restricts his overhead reaching activities. It restricts his movements of pushing and pulling. The chronic pain in his torso restricts normal, daily household activities. He is restricted in those activities on any continuous or regular basis to the point that he carries them out very rarely or not at all. His domestic arrangements are established on the basis that he cannot carry them out on a regular basis because of the chronic pain.
The determination about the correct rating is not easily reached. The Tribunal has also reflected on the possibility that the impairment might fall between 10 and 20 points, which would require the assignment of the lower of the 2 ratings.[21]
[21] Rules for applying the Impairment Tables, Rule 11 (1) (c)
Dr Brown’s report provides important detail about the impact of Mr Stagbar’s impairments on his ability to function. As an example, she confirms that using public transport is something that Mr Stagbar does not normally do as he cannot cope with sitting in one position for long. He can take a five-minute drive, a five-minute train ride, however a longer journey will become painful for him. Activities that require physical exertion and stamina result in fatigue and pain which cause a sensation of discomfort and pulling which affect the lower chest and upper abdominal area. The dull pain increases until he is bent over. Dr Brown confirms in her report is that if his pain is severe, it might take “the rest of the day” to subside. Sometimes it takes 2 days for the pain to settle down. She notes that the types of ordinary activities that have an adverse impact on functional capacity include walking, twisting and lifting.
The Secretary contended that the domestic arrangement between Mr Stagbar and Ms Braunak do not provide a basis for finding that Mr Stagbar is unable to undertake the activities specified for a severe impairment rating under Table 1. It was argued that the medical evidence suggests that Mr Stagbar has difficulty with light day to day activities, rather than being unable to do them. Furthermore, it was contended, that the occasional fishing excursion and the capacity to undertake activities that are not too heavy, count against a conclusion that there is a severe functional impact.
The assessment and report by the occupational physician, Dr Brown, postdates the earlier findings by the ARO and the AAT 1. The report is significant for the light that it sheds on Mr Stagbar’s conditions. The Tribunal is satisfied that the descriptors in Impairment Table 1 for severe functional impact are met. Indeed, rather than usually experiencing symptoms of fatigue when performing light physical activities, it is more accurate to conclude that Mr Stagbar always experiences those symptoms.
Specifically, the Tribunal considers that Mr Stagbar satisfies the descriptors in (1) (a) (iv) and 1 (b) in Impairment Table 1 for severe functional impairment. On a day to day basis it cannot be said that he can perform light household activities. Generally, he cannot do them at all. He can try, he can improvise and sometimes he might succeed in a single activity. His presence in his small garden does not last long. His activity is less than light gardening. It does not include occasional kneeling, bending, stretching. lifting, or any of the modest activities that would ordinarily be done during light gardening. As he cannot bend without pain, he has some plants and small bushes growing from waist height in a few pots and raised garden beds which enable him to pull out any weeds with a light trowel. He does not use the types and variety of equipment which might ordinarily be used for light gardening. Those tasks fall to Ms Bratunac and she does the digging, mowing and sweeping. She said that he potters around. Mr Stagbar’s presence in his back yard is best seen as the exercise of an opportunity to be outdoors rather than being constantly inside and hence to relieve boredom and to facilitate some small degree of movement. Generally, he cannot and does not help with indoor domestic tasks. Further, Dr Brown considered that he is not fit for a 3-hour shift of clerical work unless he took frequent breaks.[22]
[22] Exhibit 2 Annexure 1
The Tribunal is satisfied that Mr Stagbar’s impairment, in relation to activities requiring physical exertion and stamina, is severe at the appropriate rating of 20 points under Impairment Table 1.
In view of the Tribunal’s findings that Mr Stagbar meets other descriptors in the 20-point rating, it is not necessary to consider in further detail the descriptor regarding public transport, other than to acknowledge that he avoids public transport, both with or without assistance.
The Tribunal considers that Mr Stagbar was honest and straightforward in his evidence. He did not seek to exaggerate the impact of his conditions. His chest injury and upper limb condition were diagnosed, fully treated and fully stabilised at the qualification period with a severe functional impact on activities requiring physical exertion or stamina. The appropriate rating under Impairment Table 1 is 20 points.
Upper limb function
Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms. The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not enough.
As previously indicated, the Secretary conceded that the upper limb condition was fully diagnosed, treated and stabilised in the qualification period. The Tribunal considers that this concession is correct.
It is not appropriate to allocate a rating under Impairment Table 2 as the impact on activities involving the upper limbs has been addressed under Impairment Table 1. Double counting must be avoided.[23]
[23] Rules for applying the Impairment Tables, Rule10(3)
Other conditions
Dr Donohoe reported that there was a psychological impact for Mr Stagbar from the injuries and he described it as chronic long-term depression. In the absence of reports from a clinical psychologist or a psychiatrist, the Tribunal does not have the required corroborating evidence which Impairment Table 5 specifies for consideration of an impairment rating for mental health function.
CONTINUING INABILITY TO WORK
The next issue for determination is whether Mr Stagbar had a continuing inability to work as required by s 94(1)(c)(i) of the Act.
Section 94 (2) of the Act defines a continuing inability to work as follows:
“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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support --the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases--the impairment is of itself enough 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 within the next 2 years.
With an impairment rating of 20 points under a single Impairment Table, it follows that Mr Stagbar has a severe impairment within the meaning of s 94(3B) of the Act and participation in program of support is not required.
In deciding whether there is a continuing inability to work under s 94(1)(c)(i) several factors must be disregarded according to the Social Security Guidelines. They include:
·any impairments that have not been assigned a rating under the Impairment Tables
·the availability of work in the person’s locally accessible labour market
·the availability of any work the person could do or be trained for within the locally accessible labour market
·the availability to the person of a training activity that would assist in developing work skills
·the availability to the person of any kind of transport (public or private) to travel to and from work
·the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment
·difficulties with literacy, numeracy or language which are directly attributable to a medical condition
·the person’s preferences regarding the type of work or training
·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities
·the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered
·employer preferences and discriminatory practices that may exist in the open labour market[24]
[24] Social Security Guide 3.6.2.112
In Dr Brown’s opinion Mr Stagbar is not fit for work for 15 hours a week both now and for the foreseeable future. He is unfit for sustained musculoskeletal activity and maintaining sustained postures. She wrote that his impairment will prevent him from educational or vocational training during the next two years.[25] Similarly Dr Donohoe wrote in his report on 29 April 2019 that Mr Stagbar does not have the capacity to gain employment for the next two years.[26] Subsequently the medical certificates dated 10 May 2019 and 2 July 2019 by Dr Donohoe confirmed that Mr Stagbar cannot work for eight hours or more per week with a prognosis that his symptoms are likely to deteriorate within two years.[27]
[25] Exhibit 2 annexure 1
[26] T 23 p 58
[27] T 24p 160; T 26p 163
The JCA report referred to Mr Stagbar’s baseline work capacity as 8 to 14 hours per week and a capacity for work within two years with intervention at 15 – 22 hours per week. Identified interventions included assistance with job search skills, post placement support, disability management education and counselling, psychological and cognitive assessment and a pain management program.
The Tribunal agrees that Mr Stagbar would need the benefit of specific disability interventions to assist him to undertake training and participate in the workforce. He has a long history of work and is clearly discontent and frustrated at not being able to work because of his physical impairments. The rehabilitation counsellor who prepared the JCA report did not have the benefit of the report by Dr Brown and it appears to be unduly optimistic to have suggested that Mr Stagbar would be able to work for 15-22 hours even in light less skilled work. During the qualification period his physical limitations through chronic upper body pain were severe.
The JCA report acknowledged that there would be barriers to be addressed in a return to work .Those barriers included physical limitations causing restrictions on the type of work, the effect of Mr Stagbar’s chronic pain and his limits with endurance, fluctuations in his condition and there was also an acknowledgement of a psychological or psychiatric condition. Discounting any psychological factors, the Tribunal considers that Mr Stagbar has a continuing inability to work as a result of the chronic pain with associated fatigue, shortness of breath and reduced endurance.
Work is defined in s 94(5) of the Act as follows:
“‘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”.
Having heard Mr Stagbar’s evidence, and noting the reports of Dr Donohoe and Dr Brown, the Tribunal is satisfied that Mr Stagbar would have insurmountable difficulty in sustaining employment at 15-22 hours per week over a period of two years.
The Tribunal considers that Mr Stagbar’s impairment from the chest and upper limb conditions led to a loss of functional capacity which prevented him from working at least 15 hours per week.
The next question is whether Mr Stagbar’s impairment of itself prevents him from undertaking a training activity that would enable him to work at least 15 hours per week within two years of the qualification period.
Training activity, which is referred to in s 94(2)(b) of the Act, is defined in s 94(5) of the Act as follows:
“‘training activity’ means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) prevocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work related training (including on the job training)”.
Similar to his inability to work, the evidence shows that Mr Stagbar would have difficulty undertaking and maintaining a training activity. His impairment was sufficient to prevent him from undertaking a training activity within the relevant period.
The Tribunal finds that Mr Stagbar satisfies s 94(2) (a) and (b) of the Act and that he has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
Mr Stagbar’s chest and upper limb conditions were fully diagnosed, fully treated and fully stabilised. The appropriate rating is 20 points under the Impairment Tables.
With a total of 20 impairment points the criterion in s 94(1)(b) of the Act is satisfied.
Mr Stagbar has a severe impairment within the meaning of s 94 (3B) of the Act because of an impairment rating of 20 points under a single Impairment Table.
In view of the finding that Mr Stagbar has a severe impairment within the meaning of s 94 (3B) there is no need for him to have actively participated in a program of support within the meaning of s 94 (3C) of the Act.
The Tribunal is satisfied that Mr Stagbar has a continuing inability to work within the meaning of s 94(1)(c) of the Act.
DECISION
For the reasons set out above the Tribunal sets aside the decision under review and instead the Tribunal decides that Mr Stagbar is qualified to receive the Disability Support Pension from 29 April 2019.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson.
...............[sgnd]...............................................
Administrative Assistant Legal
Dated: 25 November 2020

Date of hearing: 6 October 2020

Representative for the Applicant:
Ms Margaret Riley

Representative for the Respondent: Ms Jasmine Forsyth

[2020] AATA 4913

25 November 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	6 October 2020
Representative for the Applicant:	Ms Margaret Riley
Representative for the Respondent:	Ms Jasmine Forsyth