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

Taylor and Secretary, Department of Social Services (Social services second review) [2018] AATA 3632 (25 September 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6965
Re:Mr Jon Taylor
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:25 September 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution determines that Mr Taylor satisfied all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the Disability Support Pension as at the date of his claim.
............[sgd....................................................
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – right shoulder bursitis, fractured right ankle, lower back pain, abdominal aortic aneurysm, myocardial infarction and anxiety conditions – whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke, Member
25 September 2018
INTRODUCTION
Mr Taylor (the Applicant) is seeking a second tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP) pursuant to s 94 of the Social Security Act 1991 (the Act).
On 11 August 2017 Centrelink found that Mr Taylor was not entitled to the DSP as he did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services.
The application was heard on 26 June 2018. Mr Taylor was self‑represented and Ms Belinda Lewis, government lawyer in the Freedom of Information and Litigation Branch of the Department of Human Services, appeared for the Respondent.
THE ISSUES IN CONTENTION
The issues in contention are whether Mr Taylor:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a diagnosed condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition or conditions which attract 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mr Taylor is 63 years of age and lives alone. He completed year 12 and was predominately working in the IT industry. He last worked as an IT manager from 1997 – to 2012, when he was made redundant. He has been unsuccessfully seeking work since that time.
On 10 October 2016 Mr Taylor made an application for DSP, citing his medical conditions as “lower back chronic pain, right shoulder chronic pain, right ankle pain + movement, AA Aneurism, pain in chest from quad bypass and nasal issues with polyps”.
On 27 February 2017 Centrelink conducted a Job Capacity Assessment (JCA) on Mr Taylor. The JCA Report noted that:
·     Mr Taylor’s ankle pain was fully diagnosed, treated and stabilised and causing a mild functional impact based on his difficulty with walking and climbing stairs, and was awarded 5 points under Table 3 of the Impairment Tables.
·     Mr Taylor’s bursitis, capsulitis & tendonitis was considered to be fully diagnosed, treated, and stabilised but caused minimal functional impairment; and so nil points were awarded for this condition.
·     Mr Taylor’s myocardial infarction (heart attack) was consider to be fully diagnosed, treated, and stabilised but given the overlapping functional impacts associated with chest pain, post-cardiac surgery and ankle pain following fibula fracture, they have been considered together under the one rating of lower limb deficiencies. Nil points were awarded for this condition to avoid over rating.
·     Mr Taylor’s spinal condition was consider to be fully diagnosed, but not fully treated, and stabilised as further investigations are planned; so nil points were awarded for this condition.
·     Mr Taylor was assessed as having a baseline work capacity of 8-14 hours per week; temporarily reduced to 0-7 hours per week due to exacerbation of lower back pain following a fall and fractured ankle in April 2016; and anticipated to increase to 15-22 hours per week in 2 years with intervention.
On 3 April 2017 Centrelink wrote to Mr Taylor to inform him that his claim for DSP had been refused as he did not have an impairment rating of 20 points or more under the Impairment Tables.
On 11 August 2017, on internal review, a departmental Authorised Review Officer (ARO) found that Mr Taylor’s total impairment rating was 10 for all his conditions assigning:
·5 points under Table 1 of the Impairment Tables for his abdominal aortic aneurysm (AAA) and coronary artery disease;
·0 points under Table 2 of the Impairment Tables for shoulder bursitis as he was still able to manage most activities requiring the use of his hands and arms;
·5 points under Table 3 of the Impairment Tables for his right fibula fracture; and
·no impairment rating for lumbar disc prolapse as this condition was not considered fully treated and stabilised.
The ARO also found that Mr Taylor had a continuing ability to work and had met the program of support requirements because he had actively participated in the program of support for 18 months in the last 36 months.
On 8 November 2017 the Social Services and Child Support Division of the Tribunal (AAT1) affirmed the decision of the ARO to reject Mr Taylor’s DSP claim. It found:
·that he was suffering from right shoulder bursitis which it considered was fully diagnosed, treated and stabilised, however, at the time of Mr Taylor’s claim, the condition was having no functional impact on activities involving the lower limbs and therefore awarded him 0 points under Table 2 – Upper Limb Function;
·that the condition of fractured right ankle was fully diagnosed, treated and stabilised, however, at the time of the claim, the condition was having a mild functional impact on activities involving the lower limbs and therefore awarded him 5 points under Table 2 – Upper Limb Function;
·that the condition of lower back pain and abdominal aortic aneurysm was fully diagnosed, treated and stabilised causing a moderate functional impact on activities and therefore awarded him 10 points under Table 1 – Functions requiring Physical Exertion and Stamina;
·that the condition of myocardial infarction was fully diagnosed, treated and stabilised but as Mr Taylor had been awarded points under Table 1 for another condition which covered this impairment, he could not be awarded points twice;
·that his personality disorder of anxiety was not fully diagnosed, stabilised or treated at the time of the claim as he had not seen a psychiatrist or clinical psychologist.
AAT1 did not make a finding in respect of undertaking a program of support as Mr Taylor was not found to have a severe impairment.
On 22 November 2017 Mr Taylor sought a review of the AAT1 decision by the General Division of the Tribunal, as he believes “the decision was wrong plus I have further information not available at the time of the initial hearing. Also I believe the wrong emphasis was placed on certain areas and that conditions were combined together that affected the decision”.
In accordance with Schedule 2, s 4(1) of the Social Security (Administration) Act 1999 (Administration Act), Mr Taylor’s qualification for DSP is to be determined from the date of his claim, 10 October 2017, to a date 13 weeks thereafter, that being 9 January 2017.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for a DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
…
Section 6(3)(a) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(c)the condition has been fully stabilised; and
…
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Section 6(6) of the Impairment Tables states:
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
The determinative issue in this review is whether, at the time of his claim, Mr Taylor suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
Section 5(2) provides that the Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment and not to assess conditions.
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person.
Section 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider Mr Taylor’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and additional medical reports provided by Mr Taylor. Mr Taylor also gave oral evidence at the hearing of this matter.
Does Mr Taylor have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.
The parties accept that Mr Taylor is suffering from right shoulder bursitis, fractured right ankle, lower back pain, abdominal aortic aneurysm, myocardial infarction and anxiety. Accordingly, the Tribunal finds that he is suffering from these conditions and meets the requirements of s 94(1)(a) of the Act.
As noted above, s 94(1)(b) of the Act states that the second requirement to qualify for DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
Does Mr Taylor have medical conditions that can be rated at 20 points or more under the Impairment Tables?
Mr Taylor has numerous medical conditions which are interrelated and that are causing chronic pain throughout his body. He contends that they are impairing his functional activities and abilities. He lists his disabilities as:
·    Can’t change a light bulb
·    Can’t wave with the right arm
·    Can’t raise right arm above shoulder height
·    Can’t hang clothes on the clothes line
·    Can’t write on a black/white board above shoulder height
·    Can’t reach top shelves at the shops (or at home)
·    Can’t lift heavy weights (2 kg plus)
·    Can’t sleep on the right side and it wakes me up
·    Can’t lift or carry heavy weights due to chest pain
·    Can’t cough or sneeze without chest pain
·    Can’t walk very far without pain and a limp due to the lack of ankle movement
·    Can’t walk far and need to rest regularly due to pain in the back caused by AAA
·    Can’t run due to the ankle
·    Can’t stand on the right leg due to pain in the ankle
·    Can’t sit still or in the one place for long (10 - 15 minutes) due to back pain from AAA
·    Can’t stand for long due to back pain from AAA
·    Can’t lie still for long due to back pain from AAA causing sleep difficulties
·    Can’t sleep due to the anxiety caused by the AAA
o Worry all the time about AAA bursting
o Daily living, well being and confidence impacted
·    Can’t reach the top or bottom shelves at the shops due to back pain from AAA
·    Can’t tie shoe laces
·    Can’t put socks and pants on without back pain and it is a slow process
·    Can’t change the bed sheets without back pain and help
·    Can’t shower and dry myself without pain and discomfort, especially below the waist
·    Can’t perform household cleaning (vacuuming, washing etc) without pain or help
·    Can’t ride a bike due to ankle movement and pain
·    Can’t go to the gym - pointless
·    Can’t sit in bus, tram, train, car or plane for more than 10 - 15 minutes without great pain and discomfort
·    Can’t go up or down stairs without the use of the rail due to pain and shortness of breath
·    Can’t dig, lift or move heavy weights
·    Can’t shop without using public transport to and from shops
o need to rest when going up and down the aisles at the supermarkets
·    Can’t bend at the waist to pick things up need to bend knees most of the way
Right shoulder bursitis
Dr Richard Young, General Practitioner, who has been Mr Taylor’s treating doctor since May 2016, in a care plan dated 7 April 2016 (updated 10 October 2016) noted ‘chronic right shoulder pain with limited movement’, with a pain scale ranking of 8/10 for shoulder pain at its worst. The care plan noted that treatment for future complications is ‘to prevent/minimise the long-term effects of chronic pain on body and everyday life’.
Dr Young in an undated medical report noted that Mr Taylor has been diagnosed with right shoulder chronic bursitis since 2008. The report noted that it is a permanent condition resulting in severe pain, severely limited movement and wakes Mr Taylor. The report further noted that treatment and care for the condition is physiotherapy and cortisone.
Dr Young provided a letter to Mr Taylor dated 30 January 2018 to assist with his application currently before the Tribunal in which he states:
Right shoulder bursitis, arthroscope 2008 plus physiotherapy, plus cortisone injection-nil improvement. Severe impact on activities of daily living, wakes him at night, cannot raise arm above right shoulder height, cannot lift over two kilos.([diagnosed] 2006.
The Tribunal explored Mr Taylor’s functional impact under Table 2 – Upper Limb Function and assessed it at a mild functional impact. Table 2 of the Impairment Tables states:
Table 2 – Upper Limb Function
There is a mild functional impact on activities using hands or arms.
(1)The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)handling very small objects (e.g. coins);
(c)doing up buttons;
(d)reaching up or out to pick up objects
Mr Taylor advised the Tribunal that:
·he is in constant pain;
·he can’t lift his arms above his head;
·as he lives alone, he has adapted his home to accommodate to his physical limitations and whilst he is independent with self-care, he requires assistance with house hold chores such as vacuuming and changing sheets;
·he can’t change a lightbulb, it takes him a long time to get dressed, and the like;
·he can’t carry heavy objects, he can’t lift anything over 2 kg, he does a small shop most days and requires assistance to get anything off the top or bottom shelf at the supermarket;
·the severe pain in his shoulder wakes him at night; and
·and whilst he can drive, he does not own a car and either walks or catches public transport.
In the Respondent’s Statement of Issues, Facts and Contentions, the Secretary contends that the medical evidence is that Mr Taylor’s chronic right shoulder pain affects his levels of physical activity and activities of daily living, the severe pain wakes him, he has limited movement, he cannot raise his arms above right shoulder height and he cannot lift over 2 kg. The JCA Report dated 16 March 2018 notes that Dr Young considered that the Applicant is independent with self-care and was not aware of any regular home help that the Applicant was receiving. Dr Young also considered that the pain does not interfere with the Applicant’s driving. The Respondent contends that the medical evidence and the evidence of the Applicant does not support a finding that he meets three of the descriptors under mild functional impairment in Table 2. The Respondent contends that he may meet criteria (a) and (d) as he cannot lift over 2 kg and has difficulty reaching up to pick up objects, but that he can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty. Therefore, the Respondent contends that the appropriate rating is zero under Table 2.
Mr Taylor told the Tribunal he disagreed with much of Dr Young’s assessment and had found at least 20 things wrong or irrelevant with what Dr Young had told the JCA assessor over the telephone on 26 February 2018. He had been so disappointed in Dr Young that he found a new treating doctor.
Mr Taylor’s condition of right shoulder bursitis has been found to be fully diagnosed, treated and stabilised and is causing him difficulties with performing activities requiring the use of his arms, most particularly his right arm. However, it appears that it is having a minor impact on his functionality as Mr Taylor has adapted many daily activities to accommodate his limitations and constant pain. Therefore, nil points are awarded to this condition.
Fractured right ankle

Dr Vasimalla, in a medical certificate dated 3 May 2016, noted that Mr Taylor has a right distal fibula fracture causing pain and rendering him unable to put weight through his right leg; and it requires surgical treatment.
Dr Young, in a care plan dated 7 April 2016 (updated 10 October 2016), noted Mr Taylor broke his leg following a fall in April 2016; resulting in an operation in which a 4-inch plate was inserted with seven screws into his ankle. Dr Young noted that this has resulted in limited movement and pain and that Mr Taylor has undertaken physiotherapy and been provided with pain relief. He described the ankle pain as 8.5/10 at worst.
Dr Young, in an undated report, noted Mr Taylor’s diagnosis as a right ankle fractured fibula which is a permanent condition resulting in severe pain and limited mobility. He noted that Mr Taylor has been undergoing physiotherapy treatment since 2016. Dr Young noted the functional impact of the condition results in him being unable to walk more than 50 meters without severe pain; and he has difficulty using stairs.
Dr Young provided a letter to Mr Taylor dated 30 January 2018 to assist with his application currently before the Tribunal, in which he states:
Fractured right fibula, ([diagnosed] April 2016), ORIF. Left with permanent decreased of range of movement, strength, stability and chronic pain. Cannot walk more than 50 meters. Seen by physiotherapists x2 disability permanent.
The Tribunal explored Mr Taylor’s functional impact under Table 3 – Lower Limb Function and assessed his capacity at a moderate functional impact.
Table 3 – Lower Limb Function
There is a moderate functional impact on activities using lower limbs.
(1)At least one of the following applies:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b)the person is unable to use stairs or steps without assistance; or
(c)the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3)This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility
Mr Taylor advised the Tribunal that:
·he is in constant pain and has limited movement in his ankle that his leg and back pain are exacerbated by walking;
·when he does walk he has to stop often to rest;
·walking on uneven ground makes the situation intolerable;
·he has difficulty managing stairs and needs a handrail to support himself;
·he can use public transport and that is how he predominantly gets around but movement form the train and tram is intolerable;
·he undertakes a small shop two or three times a week but getting to and from the supermarket is too difficult and he cannot carry heavy objects;
·he has pain on standing for five minutes and certainly could not stand for more than 10 minutes, particularly on his bad leg; and
·he can get himself out of a chair but usually has to rest on something to assist himself up.
In the Respondent’s Statement of Issues, Facts and Contentions, the Respondent contends that Mr Taylor does not meet the requirements to be assigned 10 points under Table 3 of the Impairment Tables as he has provided evidence that he has some difficulty walking to the local shops, but is able to do so and uses public transport to return home; although he does have pain after walking 50m and requires rest, he has difficulty using stairs and uses the handrail. However there is no evidence that he is unable to use the stairs without assistance from another person and the evidence of the Applicant that he can stand for more than five minutes albeit with pain and is unable to stand for more than 10 minutes.
Mr Taylor’s condition of fractured right ankle has been found to be fully diagnosed, treated and stabilised and is causing moderate difficulties with performing activities requiring the use of his legs, most particularly his right leg. As he was unable to walk far outside his home, he could not use stairs without assistance and he was unable to stand for more than five minutes, 10 points are awarded to this condition.
Lower back pain and abdominal aortic aneurysm
Dr Young, in a care plan dated 7 April 2016 (updated 10 October 2016) noted that Mr Taylor suffers from chronic pain in his lower back as result of a bulging disc and an aortic aneurysm (currently 4.3 cm in size), which will eventually need corrective surgery. The care plan noted that Mr Taylor had not been able to see the physiotherapist in respect of his lower back due to ongoing issues with sore shoulders associated with the use of his crutches after his ankle surgery. The pain in his lower back was noted as 8/10 at worst.
Mr Kenneth Buxey, Registrar, Vascular Surgery Unit at the Alfred Hospital, in a medical report of 30 March 2017, noted that he had reviewed Mr Taylor, who was known to have an infrarenal abdominal aortic aneurysm. He reported:
At consultation two weeks ago it was noted that although this aneurysm was 41 mm in size and not significantly changed from previous digital imaging that it was possible to elicit tenderness the aneurysm on typical examination. He has not had any spontaneous pain that would be consistent with aneurysm pain but given the tenderness on palpitation, his imaging and case was discussed at our multidisciplinary vascular imaging meeting on Monday to decide whether to continue to manage this as a small aneurysm or whether to in fact offer intervention.
After discussion with the entire Vascular Unit it has been decided despite these findings that this should still be managed as a small aneurysm and that risk benefit would not favour intervention at this time. As such, he will have an appointment in six months’ time here and undergo a repeat CT at that time to assess the aneurysm.
I have told him in the interim that if he develops sudden severe abdominal pain or back pain, that would be a clear indication to seek urgent medical attention and have the possibility of sudden enlargement or rupture of the aneurysm evaluated promptly.
Dr Gerard Goh, Alfred Radiology, in a report dated 19 April 2017 noted that mild degenerative changes were seen through the lower lumbar spine and there was a 3.9 cm fusiform infrarenal inflammatory abdominal aortic aneurysm. The report noted that the neck measures approximately 2.2 cm and lies approximately 2.6 cm below the level of the left renal artery which is the lower most renal artery.
Dr Young, in an undated report, noted Mr Taylor’s diagnosis as abdominal aortic aneurysm (4.3 cm in size in 2010) which requires 6 to 12 monthly checks of size and will eventually require surgery. He noted the current functional impact on Mr Taylor as pain and reactive anxiety. The report also noted a diagnosis of lumbar disc prolapse from 2010, which is a permanent condition resulting in severe pain and requiring physiotherapy, with functional impacts of ongoing pain, limitation on movement, weakness and possibly requiring surgery.
Dr Young provided a letter to Mr Taylor dated 30 January 2018 to assist with his application currently before the Tribunal, in which he states:
Lumbar disc prolapse, accompanied by severe pain on minor movement (diagnosed 2010)
Expanding abdominal aortic aneurysm accompanied by severe pain ([diagnosed] 2010). Pain increasingly steadily. Wakes him at night and in fact affects all ADL’s. Cannot do basic household chores. Very uncomfortable with movement, i.e. trams, trains and extend car trips.
The Tribunal explored Mr Taylor functional impact under Table 4 – Spinal Function and assesses his capacity at a moderate functional impact.
Table 4 – Spinal Function
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).
Mr Taylor advised the Tribunal that:
·he is unable to sustain any overhead activities and he could not hang the washing on the line;
·he cannot bend forward to put on shoes and socks, and that fundamentally he does not bend but squats;
·he cannot pick up heavy objects;
·he cannot reach up to the top shelves or bend to the bottom shelves in a supermarket;
·he is unable to sit or walk for any long periods of time, and needs to rest constantly to deal with the pain; and
·the condition caused him great stress as he is in chronic pain and fear of dying and this impacts heavily upon his sleep.
In the Respondent’s Statement of Issues, Facts and Contentions the Respondent contends that Mr Taylor does not meet the requirements to be assigned 10 points under Table 4. There was no evidence that he is unable to sustain overhead activities due to a spinal condition, nor has difficulty moving his head in all directions, or that he needs assistance to get out of the chair, and whilst there was evidence that Mr Taylor had limited movement when bending forward, there was evidence that he could bend forward to knee level.
Mr Taylor’s condition of lower back pain and AAA has been found to be fully diagnosed, treated and stabilised and is causing moderate difficulties with performing activities requiring the use of his back. As he was unable to stand for more than five minutes, could not perform overhead activities and could not bend and could not lift light objects, he was awarded 10 points for this condition.
Myocardial infarction
Dr Young, in an undated report, noted Mr Taylor’s diagnosis as chest pain after cardiac surgery since 2015, which is a permanent condition resulting in severe pain, for which the treatment was analgesia.
In a JCA Report dated 16 March 2018, it is noted that the echocardiogram report by Dr Zimmit, Radiologist, diagnosed acute myocardial infarct with onset in 2000. Dr Young states that condition was diagnosed in March 2015 when a quadruple bypass was performed, after Mr Taylor suffered a heart attack. Dr Young confirms that Mr Taylor currently takes medication and has annual reviews with a cardiologist. He confirms that Mr Taylor is experiencing chronic chest pain over the chest from the wound, but he states this does not prevent Mr Taylor from working.
Dr Young provided a letter to Mr Taylor dated 30 January 2018 to assist with his application currently before the Tribunal, in which he states:
Acute myocardial infarct ([diagnosed] March 2015), CABG X 4, Chronic chest pain over chest wound. Affects all use of upper body.
Mr Taylor advised the Tribunal at the hearing of this matter that his heart condition had been “fixed” following quadruple bypass surgery after a heart attack in 2015, but that he still suffered soreness around the chest area over his wound and could not lift heavy weights.
The Respondent contended that during the qualification period, the functional impairments from Mr Taylor’s heart condition were the same as for those he experienced in respect of his lower limb and spine. Therefore, a rating under Table 1 should not be considered as this had already been taken into account by a rating under Tables 3 and 4.
The Impairment Tables clearly state that when two or more conditions cause a common or combined impairment, a single rating should be assigned. As such nil points are awarded to this condition under any Table, as the functional impacts of Mr Taylor’s heart condition have been taken into account under Tables 3 and 4 of the Impairment Tables.
Anxiety
Ms Rebecca Baird, Clinical Psychologist, in a letter of 4 December 2017 reported that Mr Taylor was referred from MAX Employment to MAX Solutions for a confidential health service in September 2015. This service involved the provision of psychological and/or physical health interventions. The report noted:
Mr Taylor attended two sessions with myself between October 2015 and December 2016. He had reported experiencing a range of significant physical and psychological health symptoms. Despite him having taken a number of steps to manage and treat his symptoms to the best of his ability and in line with GP and specialist recommendations, the symptoms had been reported as impacting activities of daily living, wellbeing and confidence for employment.
The report from the session noted:
Stressors experienced in the past led to a range of symptoms. Client experience heart disease and a quadruple bipass in February 2015 - recovery ongoing. Shoulder pain and limited motion reported. Back pain when walking reported. Client indicated future surgery needed for AAA. Polyps in nostrils reported, which impact breathing, sleep, and smell. Client reported some mild ongoing anxiety regarding possible burst (AAA). Headaches and chest pain also reported. He reported previous psychology sessions to address mental health associated with physical health.
In a JCA Report dated 16 March 2018, it is noted that Dr Young states that Mr Taylor suffers from severe anxiety due to fear of AAA rupture and sudden death. Ms Baird indicates that she had not made a formal diagnosis of reactive anxiety as she had only seen Mr Taylor in two sessions.
Dr Young provided a letter to Mr Taylor dated 30 January 2018 to assist with his application currently before the Tribunal, in which he states:
Reactive anxiety, severe, mainly related to danger of rupture of AAA and sudden death. Seen by psychologist and found to have profound impact on daily living, well being and confidence. ([diagnosed] 2015).
Mr Taylor advised the Tribunal that he is anxious and stressed all the time, he worries ;about dying every day, as at any stage the AAA could burst, leading to death. He is in constant pain and has great difficulty sleeping. He advised that no amount of psychological assessment or support will reduce his anxiety. The only thing that will resolve his anxiety is the removal of the AAA and this in itself is a very difficult procedure because of where the AAA is located and his underlying poor state of health.
In the Respondent’s Statement of Issues, Facts and Contentions, it is contended that:
... [T]he Applicant’s condition of reactive anxiety is not fully diagnosed, treated and stabilised. … [T]he Applicant’s General Practitioner, Dr Young, has diagnose the condition as ‘reactive anxiety’ however, there has not been supporting evidence for this diagnosis from a Clinical Psychologist. Therefore this condition cannot be considered fully diagnosed…. there is insufficient medical evidence as to the functional impact on activities involving mental health to be able to assign a rating under Table 5.
Mr Taylor is obviously suffering, understandably, from reactive anxiety associated with the presence of an aneurysm in his abdomen. This was placed in stark relief by the evidence of the explicit instructions of Mr Kenneth Buxey, a vascular surgeon at the Alfred Hospital:
I have told him in the interim that if he develops sudden severe abdominal pain or back pain, that would be a clear indication to seek urgent medical attention and have the possibility of sudden enlargement or rupture of the aneurysm evaluated promptly.
Whilst Mr Taylor had seen a clinical psychologist through MAX Solutions, his employment service provider, they have not provided a diagnosis of a mental health condition. This was disappointing given that MAX Solutions Health Detailed Jobseeker Profile Report dated 2 November 2015 clearly states:
Managing depression, stress and anxiety, as well as interpersonal relationships, will be important when moving into employment, therefore post placement support on these issues will be beneficial.
Mr Taylor has been experiencing mental health issues. However as there was no evidence that this condition had been diagnosed by a clinical psychologist or psychiatrist, the Tribunal awarded him nil points for this condition, in accordance with the requirements of the Impairment Tables.
Does Mr Taylor have a continuing inability to work?
To qualify for the DSP, Mr Taylor must not only satisfy the requirement that he has an impairment or impairments with a rating of 20 points or more under the Impairment Tables, but also demonstrate that he has a continuing inability to work. Mr Taylor would be considered to have a continuing inability to work if he has actively participated in a program of support within the meaning of s 94(3C) of the Act prior to his claim for DSP; and his impairment is of itself sufficient to prevent him from doing any work independently of a program of support. The Tribunal must apply the program of support requirement strictly, finding that no power exists to dispense with its operation and it is irrelevant whether an Applicant was aware of the requirement or not.
The Tribunal finds that Mr Taylor had completed a program of support and does satisfy s 94(3C) of the Act.
The JCA Report dated 5 June 2017 stated with respect to Mr Taylor’s work capacity:
Multiple permanent medical conditions including chronic pain affecting the lower back, chest, right ankle and right shoulder significantly limit physical abilities, mobility, endurance/stamina and efficiency with daily activities. The customer has difficulty walking for more than 500m without rest. Sitting is limited to 45 minutes or less and the customer has difficulty managing stairs. He is unable to reach above shoulder level on his right side. He is unable to lift/carry more than 4-5 kgs. Baseline work capacity is assessed as 8-14 hours per week in a suitable light role that allows for regular rest breaks and postural changes.
…
Work capacity is temporarily reduced due to exacerbation of lower back pain following fall and fractured ankle in April 2016. The customer is currently awaiting further investigations and treatment. The customer currently has difficulty managing daily activities such as dressing/[g]rooming lower half due to difficulty bending to feet/floor level. Lower back is also aggravated by prolonged static postures. Work capacity is temporarily reduced to 0-7 hours per week to allow the customer to engaged in further planning treatment.
…
With appropriate medical management and specialised assistance through Disability Employment Services – Disability Management Services, there is potential for work capacity increase. The customer is likely to benefit from disability management counselling and vocational counselling/rehabilitation to assist him to build confidence and conditioning for work.
The JCA Report dated 16 March 2018 reiterated the findings of the JCA dated 5 June 2017.
The Tribunal notes that there seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA Report or a medical report should be preferred for the purpose of assessing continuing inability to work. I do not think an absolute preference should be expressed for either report. Rather, the preference should be made on a case-by-case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report writer’s relationship with the person who is the subject of the report, and the reliability and depth of the analysis within the report.

The temporary work capacity exemption applied to Mr Taylor in 2017 by the JCA continues to be relevant. Indeed, the assessor reports that his condition and functionality are deteriorating and this is corroborated by his doctors. Therefore, it is apparent that Mr Taylor has a continuing inability to work.
CONCLUSION
Mr Taylor has been awarded 10 points under Table 3 – Lower Limb Function as he has significant but not severe issues with his legs. Additionally, Mr Taylor was awarded 10 points under Table 4 – Spinal Function for his spinal disorder as he has a moderate functional impact arising from his back condition, which is acerbated by his shoulder condition and AAA.
At the date of application, Mr Taylor was qualified to receive the DSP, as his impairments attracted 20 impairment points under the Impairment Tables based on his right distal fibula fracture condition attracting 10 points under Table 3 – Lower Limb Function and for his lower back and abdominal aortic aneurysm attracting 10 points under Table 4 – Spinal Function . Additionally, he satisfied s 94(1)(c) of the Act in that he had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and in substitution determines that Mr Taylor satisfied all the requirements of s 94 of the Social Security Act 1991 and thereby qualified for the DSP as at the date of his claim.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member.

...[sgd].................................................................
Associate
Dated: 25 September 2018

Date of hearing: 26 June 2018

Applicant: Self-Represented

Solicitor for the Respondent: Ms Belinda Lewis

Solicitors for the Respondent:
Department of Human Services,

Freedom of Information & Litigation Branch

[2018] AATA 3632

25 September 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	26 June 2018
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms Belinda Lewis
Solicitors for the Respondent:	Department of Human Services, Freedom of Information & Litigation Branch