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

Stegemann and Secretary, Department of Social Services (Social services second review) [2020] AATA 5061 (14 December 2020)
Division:GENERAL DIVISION
File Number:2019/4524
Re:Robin STEGEMANN
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member G Hallwood
Date:14 December 2020
Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that Mr Stegemann satisfied the requirements of section 94(1) of the Social Security Act 1991 (Cth) at the time he lodged his claim for Disability Support Pension on 5 December 2018.
...................[sgnd].....................................................
Member G Hallwood
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – Whether medical conditions fully diagnosed, fully treated and fully stabilised - Whether conditions awarded 20 points under the Impairment Tables in the qualification period – Whether severe impairment – Whether continuing inability to work – Decision under review is set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Graham and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 650
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014

REASONS FOR DECISION
Member G Hallwood
14 December 2020

This application seeks to review a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) made on 4 July 2019 affirming the decision to reject the Applicant’s claim for Disability Support Pension (“DSP”) signed and dated on 19 November 2018 and lodged on 5 December 2018.
THE ISSUES
The Tribunal is asked to decide whether Mr Stegemann qualified for a DSP on the date of claim or within 13 weeks of that date (“the qualification period”) between 5 December 2018 and 6 March 2019.
The issues to be determined are whether Mr Stegemann in the qualification period had:
(a)A physical, intellectual or psychiatric impairment?
(b)If so, did the impairment rate at least 20 points against the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”)?
(c)If so, did Mr Stegemann have a continuing inability to work?
BACKGROUND
Mr Stegemann has previously been in receipt of DSP from 30 June 1994 to 26 August 1999.
Mr Stegemann applied to resume his payments and lodged claims for DSP on 31 October 2016 and 21 December 2017. Both of these claims were rejected and they are not the subject of this hearing.
On 5 December 2018 Mr Stegemann lodged a claim for DSP[1]. His claim included a list of disabilities, illnesses and injuries consisting of:
·     depression, anxiety, panic attacks;
·     arthritis; and
·     neck pain, shoulder disorder and back pain.[2]
[1] T10
[2] T10, p142
Mr Stegemann also lodged a claim for DSP on 22 October 2019. This claim is not the subject of this hearing.
On 18 February 2019 Mr Stegemann’s claim for DSP lodged on 5 December 2018 was rejected by the Department of Human Services (“the Department”).[3]
[3] T20, pp 351-352
Mr Stegemann requested a review of the decision and on 30 April 2019 an Authorised Review Officer (“ARO”) affirmed the decision to reject his DSP claim.[4]
[4] T3
The ARO found that Mr Stegemann’s neck disorder was fully diagnosed, fully treated and fully stabilised (“FDTS”) during the qualification period and was assigned an impairment rating of 10 points.
The ARO found that Mr Stegemann’s shoulder disorder, back pain, and depression were not fully treated and stabilised and so could not be given a rating. Based on a finding that Mr Stegemann did not have an impairment rating of 20 points or more, the ARO found the decision not to pay DSP was correct.
Mr Stegemann sought a further review and on 4 July 2019 the AAT1 affirmed the decision to reject the DSP claim. The AAT1 found that Mr Stegemann’s neck condition rated 10 points and that his other conditions could not be allocated a rating as they were not fully treated and fully stabilised.[5] The AAT1 affirmed the decision not to grant the DSP.
[5] T2
On 29 July 2019 Mr Stegemann lodged an application for review with the General Division of the Administrative Appeals Tribunal (“the Tribunal”) and that application is now before this Tribunal. Mr Stegemann’s reasons for the application are:
“They did not take into account that I had two Psychologist reports stating that I can’t work for 2 years and beyond. That I was fully treated by the Psychologist in the second report. I can no longer turn my neck without turning my trunk they did not take that into account. I was also paid out a total and permanent disability claim.” [6]
[6] T1
The Department provided 357 pages of documents (“T”) to the Tribunal. The Department also tendered a Secretary’s Statement of Issues, Facts and Contentions of 17 pages as respondent documents (“R”) prior to the hearing. Mr Stegemann provided a further 14 pages of applicant documents (“A”). The Tribunal’s decision has regard to the documented evidence as well as the oral evidence given at the hearing.
THE LEGISLATION AND RULES
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.
The relevant law is contained in the Social Security Act 1991 (“the Act”) and the Social Security (Administration) Act 1999 (“the Administration Act”). Also of relevance are the Impairment Tables, and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“the Participation Determination”).
To medically qualify for a DSP a person must meet the qualification criteria set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act.
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…
The second requirement of paragraph 94(1)(c) is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.
To qualify for a DSP it is necessary to meet all of these criteria, and, the impairment must be present at the time of the claim or within the following 13 weeks, as set out in the Administration Act at subclause 4(1) of Schedule 2.
Subsection 26(1) of the Act provides that the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for DSP.
The tables to be applied are contained in the Impairment Tables in accordance with section 27 of the Act.
The rules for applying the Impairment Tables (“the Rules”) are contained in the Impairment Tables.
Subsection 6(1) of the Rules provides that a person's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work resulting from the person's condition.
Subsections 6(2) and 6(3) of the Rules set out that the Impairment Tables may only be applied after the person's medical history has been considered, the condition causing the impairment is permanent, and the impairment is likely to persist for more than two years.
Subsections 6(3) to 6(7) of the Rules require a condition to be FDTS, and likely to persist for more than two years in order to be considered permanent.
Subsection 6(5) of the Rules requires that in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether the condition is fully treated, consideration is to be given to:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned within the next two years.
Subsection 6(6) states that a condition is fully stabilised if:
(a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work within the next two years, or
(b)the person has not undertaken reasonable medical treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to occur, even if the person undertakes reasonable medical treatment, or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable medical treatment.
Reasonable medical treatment is described for the purpose of subsection 6(6) as treatment that is:
(a)available at the location reasonably accessible to the person;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the person.
CONSIDERATION
Mr Stegemann is an unmarried 58-year-old man who lives in a caravan in Barmera. He completed year 10 at high school and has worked in a variety of jobs including as an assistant technician with Telecom, factory labouring, mobile plant operations for road work crews, and as a delivery driver.
Following a motor vehicle accident in 1992 Mr Stegemann was off work for about 6 years and had received DSP before re-entering the workforce in 1999. He told the Tribunal he had the best job in the world delivering meat to hotels. He said he had the job “down pat”. He struggled working from 2012 and had heart surgery in January 2013 returning to work in March 2013. He has not worked since December 2014.
He states that he is currently struggling financially and has a number of debts he is paying off and these debts have been playing on his mind.
Does Mr Stegemann have impairments?
In order to qualify for DSP, paragraph 94(1)(a) of the Act firstly requires a person to have a physical, intellectual or psychiatric impairment.
It is not in dispute and the Tribunal finds, based on the medical evidence submitted, that during the qualification period Mr Stegemann had impairments related to his upper limbs, spine and mental health that could affect his ability to work.
For these reasons Mr Stegemann satisfies the first criteria in subsection 94(1) of the Act.
If so, does Mr Stegemann’s impairment rate at least 20 points against the Impairment Tables?
The second requirement under subsection 94(1) of the Act for a person to qualify for DSP is to achieve a rating of 20 points or more under the Impairment Tables at the time of lodging the claim, or within 13 weeks of that date. The qualification period in this case is from 5 December 2018 to 6 March 2019. The Tribunal cannot consider medical problems or developments that have arisen after that time. Such issues can only be addressed by a new claim.
The Secretary contends that Mr Stegemann does not satisfy paragraph 94(1)(b) as he does not have a total impairment rating of 20 points under the Impairment Tables.
Before any of Mr Stegemann’s conditions can be assigned an impairment rating against the Impairment Tables the condition must be considered permanent.[7]
[7] Subsections 6(3) and (4) of the Impairment Determination
A condition is permanent if it is fully diagnosed by an appropriately qualified medical practitioner, fully treated and fully stabilised.[8]
[8] Subsections 6(5), (6) and (7) of the Impairment Determination
Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if the impairment that results from the condition is more likely than not, in the light of available evidence, to persist for more than two years.[9]
[9] Subsection 6(4) of the Impairment Determination
Medical and imaging reports provided to the Tribunal, together with Mr Stegemann’s oral and written evidence, demonstrate his medical conditions for consideration include:
·     arthritis to shoulder and upper arm;
·     spinal disorders (neck and thoraco-lumbar); and
·     mental health disorders (depression)
Shoulders and upper arms
The Secretary contends, and Mr Stegemann conceded in oral evidence, that at the time of his application and during the qualification period, his long term arthritis to his shoulder and upper arm were fully diagnosed but that it was not fully treated or fully stabilised.
In his report dated 9 April 2015 Dr Josh Munn[10], occupational physician, described Mr Stegemann’s shoulder conditions as stemming from football injuries in his youth. Mr Stegemann’s left shoulder appeared to function well since surgery in 2004. Dr Munn reported:
“on examination of his shoulders he had an anterior left shoulder scar from surgery. His left shoulder range of movement was normal. On the right he had forward flexion to 180 degrees, abduction to 150 degrees, and external rotation to 60 degrees”.
[10] T18, pp 287-290
Dr Munn recommended a review with a physiotherapist and commencing baseline Paracetamol. There is little evidence of physiotherapist reviews or physical and pharmacological treatment since that time.
The Tribunal agrees with the parties and is satisfied that while the shoulder and upper arm conditions were diagnosed, they were not fully treated or stabilised during the qualification period. For this reason, the shoulder and upper arm conditions cannot be assessed against the relevant Impairment Tables.
Thoraco-lumbar spine
The Secretary and Mr Stegemann agree that, at the time of his application and during the qualification period, the Applicant’s lower spine condition was fully diagnosed but not fully treated or fully stabilised.
Dr Munn reported on 9 April 2015:[11]
“that examination of the thoracolumbar spine showed forward flexion to 60 degrees, extension 30 degrees, lateral flexion 30 degrees, bilateral end rotation 30 degrees bilaterally. He had no focal tenderness and no muscle spasm. Slump test and straight leg raise test induced bilateral groin pain. This was reproduced with resisted straight leg raise test, hip flexion with bend knee and internal and external rotation of the hip. To me this is suggestive of probable primary hip pathology rather than radiating pain from spinal cords.”
[11] T18, p 289
The Tribunal agrees and is satisfied that the lumbar spine condition was not FDTS during the qualification period. For this reason, the lumbar spine condition was not assessed against the relevant Impairment Tables.
Cervical spine
The Secretary accepts that Mr Stegemann’s cervical spine condition was FDTS by the qualification period. Mr Stegemann was involved in a motor vehicle accident in 1992 in which he suffered a fracture dislocation at C5/C6. At the time, Mr Stegemann spent 17 days in a spinal unit with traction and a halo splint.
Dr Josh Munn, occupational physician, reported on 9 April 2015 that Mr Stegemann had reduced movement in his cervical spine. Dr Munn described Mr Stegemann’s cervical forward flexion of 45 degrees, extension of 20 degrees, lateral flexion of 20 degrees bilaterally and rotation of 45 degrees bilaterally. The report also indicated that there may be some reduction in Mr Stegemann’s pain with the use of regular paracetamol and that physiotherapy will not be significantly beneficial for his neck.[12]
[12] T18, pp 287-290
In a series of medical certificates from 2017 through to 2019 Dr James Herbert, the applicant’s treating general practitioner, diagnosed Mr Stegemann as having an acute exacerbation of chronic arthritic pain in the neck, back and shoulders. Treatment had included analgesia, heat, walking, psychology and avoidance of aggravating activities.[13]
[13] T18, pp 291–293,297-301 and p 305
Given the long term diagnoses with treatment spanning over 27 years, and Dr Munn’s comments about physiotherapy unlikely to be beneficial in treating Mr Stegemann’s neck, the Tribunal is satisfied Mr Stegemann’s cervical injury was FDTS by the qualification period, and is unlikely to sustain significant improvement in the next two years. For this reason, Mr Stegemann’s cervical spine impairment is assessed against the Impairment Tables.
Table 4 – Spinal Function
Table 4 – Spinal Function is used where a person has a permanent condition resulting in functional impairment when performing activities involving spinal function, relevantly including bending or turning the neck.
The Tribunal believes the descriptors for moderate and severe functional impact on activities involving spinal function from the Tables are relevant to this matter and have been reproduced below.

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.

In oral evidence, Mr Stegemann struggled to remember the functional impact of his cervical condition from the time of his application or within the qualification period, and he continually referred to his current functioning and continued deterioration. In a face-to-face Job Capacity Assessment on 11 February 2019,[14] Mr Stegemann reported variable intensity neck pain which severely restricted his activities, including sweeping his caravan and requiring three hours to wash his car. He no longer did any gardening but could shop, cook, care for and dress himself.
[14] T14, p 251
At a hearing before the Administrative Appeals Tribunal on 27 July 2018, Senior Member Manetta reported that Mr Stegemann demonstrated an ability to perform overhead activities, bend forward to pick up an object from a table, and remain seated for at least 10 minutes, and that Mr Stegemann agreed that he could, to a limited extent, turn his head and bend his neck without the need to move his trunk.[15]
[15] T18, pp 281-282
The Secretary does not dispute that Mr Stegemann’s cervical condition has a moderate functional impact on activities involving his spinal function.
It was evident that Mr Stegemann could sit and drive a car for around 30 minutes and had difficulty moving his head to look in all directions.
Based on Mr Stegemann’s evidence during the Job Capacity Assessment, together with the range of motion testing carried out by Dr Munn, the Tribunal is satisfied that Mr Stegemann was suffering from a condition that had a moderate functional impact on activities involving his spinal function during the qualification period. There is no evidence that indicates Mr Stegemann’s cervical condition had a severe functional impact on his spinal function but did meet the requirements for moderate functional impact and for this reason the Tribunal assigns 10 points against Table 4 – Spinal Function.
Mental Health Conditions

The Secretary contends that Mr Stegemann was diagnosed with depression by the qualification period, but that his condition was not fully treated and fully stabilised at that time.
A Job Capacity Assessment Report (“JCAR”) dated 18 February 2019, with the assessment undertaken by a registered nurse with a contributing assessor that was a registered psychologist, found that Mr Stegemann’s depression was FDTS at that time, which fell within the qualification period.[16]
[16] T14, p 252
Dr Herbert’s Medical Certificate dated 10 January 2019, within the qualification period, diagnoses depression, listing chronic symptoms and psychology treatment.
In a report dated 7 September 2017, Ms Leah Tan, Clinical Psychology Registrar reported seeing Mr Stegemann for three sessions and described the applicant’s self-reported history as including depression over a period of 40 years. Ms Tan described Mr Stegemann’s symptoms as meeting the criteria for Major Depressive Disorder with anxious distress, as described in the Diagnostic and Statistical Manual for Mental Disorders Fifth Edition (“DSM-5”). In September 2017, Mr Stegemann had received three Cognitive Behaviour Therapy (“CBT”) treatment sessions and, at that stage, Ms Tan was of the opinion that further treatment would not increase his capacity for work, retraining or job seeking activities for at least the next two years given the chronicity and enduring nature of his mental health conditions.[17]
[17] T18, pp 294-296
In a report dated 4 February 2019, Ms Apoorva Maden, the clinical psychologist who took over Mr Stegemann’s treatment when Ms Tan left, described symptoms consistent with a diagnosis of Major Depressive Disorder with anxious distress (severe) pursuant to the DSM-5. Ms Madan described having provided six CBT-based treatment sessions for Mr Stegemann between 13 August 2018 and 4 February 2019, and numerous CBT sessions with his previous psychologist. Ms Madan also describes Mr Stegemann as having been prescribed antidepressant medication by his GP in 2015, which he ceased using after a short period as it did not alleviate his symptoms. Ms Madan states in relation to further treatment:
“Though he may see improvement in his depression over a long period of psychological support, due to chronic pain accompanying mental health difficulties, it is unlikely further treatment will result in improvement that will allow him to return to work in the next two years and beyond.”[18]
[18] T18, pp 302-304
In relation to a different matter before the Administrative Appeals Tribunal with the same applicant, Senior Member Manetta on 27 July 2018 opined that a consultation with a psychiatrist was an avenue that needed to be explored. Senior Member Manetta’s opinion predated Ms Madan’s report and was prior to Dr Herbert’s certificate dated 10 January 2019, but was used by the Department as reasoning for a Health Professional Advisory Unit Opinion (“the Opinion”) dated 29 April 2019 in relation to the matter currently before the Tribunal.[19]
[19] T16, pp 266-270
The Opinion, prepared by a qualified medical practitioner who the Tribunal notes had not seen or questioned the applicant while preparing a backward looking report, notes a conversation with treating GP Dr Herbert, that confirmed that Mr Stegemann had not seen a psychiatrist, but had seen a psychologist. Dr Herbert also confirmed in the conversation that Mr Stegemann was not on any antidepressants or prescribed medication for chronic pain. The Opinion also notes, incorrectly it seems, that Ms Madan’s report of 4 February 2019 makes no reference to other treatments that could be explored. As has been discussed at paragraph 63, Ms Madan had identified and discounted antidepressants as a treatment option, albeit as a psychologist she is unable to prescribe them. The Opinion report disagrees with the JCAR of 18 February 2019, and the treating psychologist reports finding that Mr Stegemann’s depression was not fully treated or fully stabilised during the qualification period.
A report prepared by Dr Michael Warhurst, psychiatrist, dated 24 June 2019 and some four months outside the qualification period, diagnoses Chronic Major Depressive Disorder with anxiety with Mr Stegemann’s first episode occurring when he was 15 years old.[20] Dr Warhurst also describes comorbidities including chronic Social Anxiety Disorder with chronic avoidances, together with Avoidant and Paranoid Personality Traits and possibly some mixed personality disorder. Dr Warhurst also notes Mr Stegemann’s chronic pain and disability issues. Past treatment for depression described by Dr Warhurst includes his brief trial of antidepressants in 2015, and his ongoing treatment by psychologists since 2017. Dr Warhurst also described Mr Stegemann’s history of pain treatments and his self-medication with alcohol.
[20] A2, pp 6-9
The Secretary in her Statement of Issues, Facts and Contentions at paragraph 4.47 refers to Dr Warhurst’s report stating: “This psychiatrist has set out some pharmacological therapy that ‘may help’. It is understood that the Applicant has not undertaken the therapy recommended by Dr Warhurst.”[21] The Tribunal is not satisfied that this paraphrasing of Dr Warhurst’s report reflects what Dr Warhurst was conveying about the efficacy of future treatment when he stated:
“Trialling an anti-depressant may help him [Mr Stegemann] slightly in terms of some mild improvement in his day to day mood and anxiety, but it is unlikely to have any significant effect on his chronic illnesses or his chronic difficulties with functioning.”[22]
[21] R1, p 9
[22] A2, p 9
Taken in the context of recommending various treatments, it is the Tribunal’s view that the above statement should be read as Dr Warhurst having the opinion that further medication would have little effect on Mr Stegemann’s functioning, but may help him with his day-to-day mood and his anxiety.
Dr Warhurst recommends various options in terms of medication that he believed may help slightly in terms of mild improvement and also offered some opinions and suggestions in relation to psychology treatment which he qualified by stating: “However, any such therapy will be long-term and ongoing, and he [Mr Stegemann] is unlikely to show significant functional improvement within the next two years or more”.[23]
[23] A2, p 9
S94(1) of the Act sets out that points under the Tables can only be allocated if a condition is deemed to be permanent.
Paragraph 5 of the Introduction to the Impairment Tables reads:
The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
Paragraph 6 states:
In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
Having noted that Dr Warhurst’s report is outside the qualification period, Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (“Bobera”) at [34] explores the diminishing value of medical evidence created in hindsight:
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.
The Tribunal accepts the view presented in Bobera and makes use of Dr Warhurst’s report to the extent that it supports reports from before the end of the qualification period, and not to the extent that his report may provide evidence of progression toward the award of a DSP.
The “Introduction to Table 5” in the Impairment Tables requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
The Secretary contends that as a clinical psychologist registrar, Ms Tan is not acceptable in relation to Table 5 – Mental Health Function. A similar question was explored in relation to a psychiatric registrar in Graham and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 650, where it was found that a psychiatric registrar under the supervision of a psychiatrist was of sufficient experience to meet the requirements set out in the Introduction to Table 5.
In this case, the Tribunal is satisfied that the diagnosis of depression was made by an appropriately qualified medical practitioner, Dr Herbert, with evidence from a clinical psychologist, Ms Madan. For this reason, the Tribunal does not need to consider the professional qualifications of Ms Tan.
These three treating practitioners were of the opinion that Mr Stegemann’s depression had been fully treated and was fully stabilised within the qualification period, and that he was unlikely to significantly increase his function within the next two years or more.
Dr Warhurst’s report confirms the opinions of the treating GP, and the two treating psychologists; that Mr Stegemann was FDTS. This view is also in accord with the JCAR.
The Opinion expressed the view that the mental health conditions were not fully treated and fully stabilised as there had been no oversight by a psychiatrist and Mr Stegemann was not taking antidepressants.[24] In light of the views of the treating GP, the two treating psychologists, and the later view of the assessing psychiatrist, the Tribunal is not convinced by the view expressed in the Opinion.
[24] T16, p 270
For these reasons, the Tribunal is satisfied that Mr Stegemann’s mental health conditions were FDTS within the qualification period. This means Mr Stegemann’s mental health conditions are considered permanent and should be assessed against Table 5 – Mental Health Function.
Table 5 – Mental Health Function
Table 5 is used where a person has a permanent condition resulting in functional impairment due to a mental health condition. The Tribunal considers the descriptors relating to moderate and severe functional impact on activities involving mental health function to be the most relevant in this case and they are provided below.

10

There is a moderate functional impact on activities involving mental health function.

(1)     The person has moderate difficulties with most of the following:

(a)     self care and independent living;

Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.

(b)     social/recreational activities and travel;

Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.

(c)     interpersonal relationships;

Example: The person has difficulty making and keeping friends or sustaining relationships.

(d)     concentration and task completion;

Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).

(e)     behaviour, planning and decision-making;

Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands. Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.

(f)      work/training capacity.

Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

20

There is a severe functional impact on activities involving mental health function.

(1)     The person has severe difficulties with most of the following:

(a)     self care and independent living;

Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

(b)     social/recreational activities and travel;

Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

(c)     interpersonal relationships;

Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

(d)     concentration and task completion;

Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

(e)     behaviour, planning and decision-making;

Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

(f)         work/training capacity. Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

In order to meet the requirements for either moderate or severe functional impact, the Tribunal must be satisfied that Mr Stegemann had either moderate, or severe difficulties with most of the descriptors (i.e. at least 4) from Table 5 above.
Self-care and independent living
Mr Stegemann described managing his own self-care. He struggles to fill the water in his caravan to wash regularly, but he acknowledges that during the qualification period he lived independently and was restricted more as a result of his physical injuries than his mental health condition. The Tribunal is satisfied that during the qualification period, Mr Stegemann did not match the moderate or severe descriptors for self-care and independent living.
Social / recreational activities and travel
Mr Stegemann described travelling only to familiar areas unless he is forced to do otherwise. He goes to the local shop and to his doctor. He lives in his caravan in a spot where there are no other people around. He does not attend any social activities. Reports from his psychologists corroborate that he does not go anywhere to mix with people.
Ms Tan stated that Mr Stegemann was quite socially isolated.[25] Ms Madan reported that Mr Stegemann goes out infrequently and is involved in no social events, struggling to engage in behavioural activation despite various attempts to engage him in strategies to increase engagement in activities of value.[26]
[25] T18, p 295
[26] T18, p 303
The reports of his psychologists are supported by the report of Dr Warhurst who stated of Mr Stegemann:
“He lives alone (with his dog) on a camping site, and has lost contact with his family years ago. He has no friends, and is very isolated, and this compounds his chronic pain, anger, and depression.”
Dr Warhurst also stated, “He has some chronic social anxiety and avoidances, particularly in more social situations, and will often flee.” [27]
[27] A2, p 8
Based on this evidence, the Tribunal is satisfied that Mr Stegemann has severe difficulties with social / recreational activities and travel as a result of his mental health conditions.
Interpersonal relationships
Mr Stegemann described having two friends, Mick, who he went to school with, and Paul. He sees them rarely and had, at the time of the hearing, pawned his telephone so did not have the means to stay in contact. He lives alone. He never married or had children.
In February 2019, Ms Madan stated that Mr Stegemann’s notable social isolation is a high-risk factor to his wellbeing and a maintaining factor of mental illness. Social isolation has been long-term and continues to persist.[28] Ms Madan goes on to state: “He has no external social supports, or contact with family, and spends most of his time alone.” This is consistent with Ms Tan’s report of September 2017 (some 17 months earlier) which states: “Currently Mr Stegemann is quite socially isolated with no close family relations and close friends.”[29]
[28] T18, p 303
[29] T18, p 295
The Tribunal is satisfied on Mr Stegemann’s evidence, as corroborated by psychology reports, that Mr Stegemann has extreme difficulty interacting with other people and is socially isolated. This is the descriptor example given for extreme functional impact on activities involving mental health function in Table 5.
Concentration and task completion
Mr Stegemann described having difficulties concentrating on anything for more than a few minutes. He stated that when he talks to someone, ten minutes later he has forgotten what he said. He said that he used an exercise book to remember his shopping and to pay bills.
The Secretary put to the Tribunal that Mr Stegemann had provided cogent arguments at the hearing and had managed to concentrate over a sustained period. The Tribunal notes that Mr Stegemann regularly referred to papers and appeared increasingly mentally fatigued as the hearing progressed. The Tribunal favours the contemporary evidence from prior to and during the qualification period, which appears to be consistent across the psychology reports and the JCAR.
Ms Tan described Mr Stegemann as having “issues with short term memory such as having troubles remembering what he was talking about during our session.” Ms Tan described poor concentration as one of Mr Stegemann’s symptoms but also noted that his long-term memory was intact, and that Mr Stegemann appeared to demonstrate fair insight into his conditions and its aetiology. [30]
[30] T18, p 295
Ms Madan stated of Mr Stegemann: “He struggles to concentrate for a sustained amount of time, and struggles to make decisions or plans”.[31] Ms Madan also indicated that Mr Stegemann suffered from poor concentration, fatigue, sleep impairment, feelings of guilt and failure, self-criticism, agitation and restlessness, absence of energy and feelings of worthlessness.
[31] T18, p 304
Dr Warhurst’s later opinion was consistent with the psychologist reports, that were prior to the end of the qualification period, describing Mr Stegemann as: feeling down and depressed every day, feeling hopeless, having poor energy and motivation, and limited enjoyment.[32]
[32] A2, p 8

The Tribunal is satisfied that Mr Stegemann meets the descriptor for a moderate functional impact in relation to concentration and task completion. The difference between moderate and severe functional impact in the examples relating to concentration on tasks or conversation is based on whether “the person finds it very difficult to concentrate on longer tasks for more than 30 minutes”; or, “the person has difficulty concentrating on any task or conversation for more than 10 minutes”.
In this instance, the Tribunal is not satisfied there is enough evidence that prior to or during the qualification period Mr Stegemann had difficulty concentrating on any task or conversation for more than 10 minutes and so finds that for this descriptor of Mr Stegemann’s condition met the moderate functional impact criteria.
Behaviour, planning and decision-making
At the hearing, Mr Stegemann stated that his brother has not spoken to him for over 20 years because of his outbursts. He described getting loud and angry with motorists. Mr Stegemann denied having many conflicts at work. He stated that he gave up work mainly because of his physical pain but that he also felt suicidal. Mr Stegemann described biting his fingers and fingernails in his sleep and waking up with bleeding and painful fingers.
Ms Tan described Mr Stegemann as currently (September 2017) experiencing depressed mood most of the day every day, feeling overwhelmed, having disturbed sleep due to nightmares and pain, excessive negative rumination and fluctuating moods, anxiety, and panic attacks.[33]
[33] T18, p 295
Ms Madan described Mr Stegemann’s assessment scores, including the Beck Depression Inventory which indicated his depression was in the severe range, and the Beck Hopelessness Scale indicating a severe level of hopelessness matching his symptoms of a desire to give up, little hope for the future, absence of confidence in the ability to see change, and severe levels of pessimism about his current and future state. Ms Madan also described severe levels of suicidal ideation with a then current moderate risk.[34]
[34] T18, p 303
In medical certificates of 22 October 2018, 10 January 2019 and 5 March 2019 Dr Herbert listed chronic low mood and anhedonia as Mr Stegemann’s symptoms.[35]
[35] T18, pp 299, 301, 305
Dr Warhurst’s report is in accord with the treating GP and treating clinical psychologist Ms Madan when he states:
He has managed with chronic suicidal ideas over the last 40 years… He has had intermittent, fleeting ideas since then. He has mainly passive ideas now, but no plans, preparations or intent. He denies any acute or imminent suicide risk, but he is some chronic risk.[36]
[36] A2, p 8
The Tribunal is satisfied on the evidence above that Mr Stegemann’s behaviour, thoughts and conversation are significantly and frequently disturbed and that he fits the severe functional impact descriptor.
Work / training capacity
Dr Herbert’s medical certificates of 22 October 2018, 10 January 2019 and 5 March 2019 all indicate that Mr Stegemann is unfit to work or study, that he is unable to currently do his usual work, and that he cannot do any other work for eight hours or more per week. Dr Herbert also states that Mr Stegemann’s conditions are likely to deteriorate or unlikely to improve. [37]
[37] T18, pp 299, 301, 305
The problem for the Tribunal with Dr Herbert’s certificates is that they do not indicate whether the inability to attend work, education or training is due to ongoing mental illness, or whether it is due to the physical conditions also listed on the certificate, or a combination of both.
Mr Stegemann indicated to the Tribunal that when he gave up work it was mainly as a result of the pain caused by his physical conditions but also because he was feeling suicidal. Mr Stegemann also put to the Tribunal that he has always undertaken work when he is able to, and that from the time he lodged his claim for DSP he has been unable to.
Ms Madan stated, “[Mr Stegemann] is also unable to attend work or engage in education or training on a regular basis over a lengthy period of time due to his mental and physical illness.”[38]
[38] T18, p 304
Ms Tan provided that:
“Based on Mr Stegemann’s chronic pain and mental health issues, it is unlikely that any further treatment will result in improvement that will allow him to return to work. In addition, given his poor concentration and memory, he is unlikely to be able to engage successfully in any form of job seeking, retraining or up-skilling in the next 2 years”.
Ms Tan goes on to make it clearer that the mental health conditions will prevent Mr Stegemann from work and training activities by stating: “I believe that he does not have the capacity to engage in work, or retraining or job seeking activities for at least the next 2 years given the chronic and enduring nature of his mental health conditions”.[39]
[39] T18, p 296
Dr Warhurst stated that Mr Stegemann would not be capable of working in manual work, re-training, or alternative employment as a result of a combination of chronic pain, and chronic depression and anxiety.[40]
[40] A2, p 9
While it is difficult from the evidence to separate the physical and mental health conditions and their impact on capacity to work and retrain, the Tribunal on balance is satisfied that Mr Stegemann’s mental health condition is severe enough to prevent him from working or retraining and that this is unlikely to change in the two years from the lodgement Mr Stegemann’s application.
Overall, the Tribunal finds Mr Stegemann matches the descriptors as follows:
·     mild – self-care and independent living;
·     severe – social / recreational activities and travel;
·     extreme – interpersonal skills;
·     moderate – concentration and task completion;
·     severe – behaviour, planning and decision-making; and
·     severe – work / training capacity.
Subsection 11(1) of the Impairment Determination sets out that if an impairment falls between two ratings, the lower of the two should be used unless all the descriptors of the higher rating are satisfied.
In this case Mr Stegemann’s mental health impairment does not satisfy the extreme rating because he does not satisfy most of the descriptors for this rating. As the functional impact of Mr Stegemann’s condition on his mental health function satisfies the severe rating against most of the descriptors, the Tribunal is satisfied that the overall impact is severe and, for this reason, Mr Stegemann is allocated 20 points against Table 5.

Total points

Mr Stegemann has been assigned 10 points from Table 4 – Spinal Function, and 20 points from Table 5 – Mental Health Function for a total of 30 points. As Mr Stegemann has been assigned 20 points or more against the Impairment Tables, he satisfies paragraph 94(1)(b) of the Act.

Severe Impairment

A person has a “severe impairment” if their impairment scores 20 points or more under the Impairments Tables, of which 20 points or more are under a single Impairment Table.[41]
[41] Subsection 94(3B) of the Act
The Tribunal finds that Mr Stegemann has a severe impairment as he has been assigned 20 points under Table 5 – Mental Health Function.

Does Mr Stegemann have a continuing inability to work?

Subsection 94(2) of the Act sets out what is required for a person to have a continuing inability to work:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A person whose impairment is a severe impairment is not required to have participated in a program of support. In this case Mr Stegemann has a severe impairment so does not need to participate in a program of support but must satisfy paragraphs 94(2)(a) and (b) of the Act.
The test for a continuing inability to work is whether a person’s medical conditions prevent them working or participating in a training activity of 15 hours per week in whatever type of work suits them best given their medical problems.
At the time of his application, Mr Stegemann was a 56-year-old man who had not worked for four years. Mr Stegemann left school at age 16 and had not participated in any formal study since an unemployment course in the 1980’s. His employment history consists of manual outdoor work including linesman with Telecom, road worker, and delivery driver. His employment has been interspersed with years of time off as a result of mental health and physical incapacity.
The JCAR dated 18 February 2019, identified that with continued intervention it was anticipated Mr Stegemann would be able to achieve a capacity for work of 15-22 hours per week within two years.[42] The Tribunal notes that this report had assessed Mr Stegemann’s mental health condition as moderate rather than severe.
[42] T14, p 258
As discussed previously, when considering Mr Stegemann’s work / training capacity in relation to Table 5 - Mental Health Function - his long-term GP and both of his treating psychologists identified that he would be unable to undertake work or training within the next two years. While outside the qualification period, Mr Stegemann’s assessing psychiatrist was also of this opinion.
The Tribunal would in most circumstances place significant weight on the JCAR in relation to work capacity. In this instance, that report is based on there being a moderate functional impact of Mr Stegemann’s mental health conditions when the Tribunal finds those conditions had a severe impact. As a result of the different views in relation to functional capacity, the Tribunal in this matter has placed greater weight on the opinions of the GP and treating psychologists which were found by the Tribunal to be more accurate in relation to Mr Stegemann’s functioning.
Subsection 94(5) of the Act states: work is any work that is for at least 15 hours per week at award wages or above and that exists in Australia, even if not within the person's locally accessible labour market.
On balance, the Tribunal is satisfied that Mr Stegemann’s chronic pain related to his neck, together with chronic anxiety and depression, prevent him from doing any work that is for at least 15 hours or more independently of a program of support in the next two years. The Tribunal is also satisfied that Mr Stegemann’s impairment is of itself sufficient to prevent him from undertaking a training activity during the next two years. For this reason, the Tribunal finds Mr Stegemann meets the requirements of paragraph 94(1)(c) of the Act.

CONCLUSION

The Tribunal finds that Mr Stegemann has impairments in the form of depression, anxiety, panic attacks, arthritis, as well as neck, back and shoulder pain satisfying the requirements of paragraph 94(1)(a) of the Act.
Mr Stegemann’s neck fracture and related cervical spine degeneration, and his depression and anxiety conditions were FDTS at the time his application was lodged on 5 December 2018 – and that these conditions were likely to persist for more than two years.
The Tribunal is satisfied that Mr Stegemann’s cervical condition had a moderate functional impact on his spinal function and for this reason the Tribunal assigns 10 points from Table 4 – Spinal Function.
The Tribunal is satisfied Mr Stegemann’s anxiety and depression have a severe functional impact on his mental health function and has allocated 20 points against Table 5 – Mental Health Function.
As Mr Stegemann has been allocated 20 points or more from the Impairment Table, the Tribunal is satisfied he meets the requirements of paragraph 94(1)(b) of the Act.
Mr Stegemann was assigned 20 points against a single table and so is not required to have completed a program of support.
The Tribunal is satisfied that Mr Stegemann’s impairment prevents him from working or studying for 15 hours a week or more and finds he meets paragraph 94(1)(c) of the Act having a continuing inability to work.
For these reasons the Tribunal is satisfied Mr Stegemann meets the requirements of subsection 94(1) of the Act and medically qualifies for DSP from 5 December 2018 when he lodged his application.

DECISION

The Tribunal sets aside the decision under review and substitutes a decision that Mr Stegemann satisfied the requirements of section 94(1) of the Social Security Act 1991 (Cth) at the time he lodged his claim for Disability Support Pension on 5 December 2018.

I certify that the preceding 137 paragraphs are a true copy of the reasons for the decision herein of Member G Hallwood

................[sgnd].........................................
Administrative Assistant Legal
Dated: 14 December 2020

Date of hearing: 13 February 2020

Applicant:
Self-represented

Representative for the Respondent: Mr Christian Visser, Services Australia

[2020] AATA 5061

14 December 2020

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Appeal

Date of hearing:	13 February 2020
Applicant:	Self-represented
Representative for the Respondent:	Mr Christian Visser, Services Australia