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

[2022] AATA 3337

Wicker and Secretary, Department of Social Services (Social services second review) [2022] AATA 3337 (11 October 2022)

Division:GENERAL DIVISION

File Number:          2021/7239

Re:Shayne Wicker  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Damien Cremean, Senior Member

Date:11 October 2022

Place:Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the Applicant is entitled to Disability Support Pension (DSP) in accordance with the Social Security Act1991 (Cth) with effect from 28 November 2019 in respect of his spinal or lumbar condition.

....................[sgd]....................................................

Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – Disability Support Pension – several conditions including lumbar conditions – whether fully diagnosed, treated and stabilised – degree of impairment – corroboration – Job Capacity Assessment Report – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Damien Cremean, Senior Member

11 October 2022

1. The Applicant, Mr Shayne Wicker, seeks a review of the decision made by the Social Services & Child Support Division of this Tribunal (“Tier 1”) on 1 September 2021 to affirm a decision made by an authorised review officer (“ARO”) of Services Australia, dated 16 June 2021. The ARO’s decision affirmed a decision rejecting the Applicant’s claim for Disability Support Pension (“DSP”), which the Respondent had made on 2 March 2020.

2. The hearing in this matter was conducted on 29 April and 4 August 2022 by audio visual link. The Applicant was self-represented. The Respondent was represented by Ms N Markov, lawyer from Services Australia.

3. The Applicant gave affirmed evidence and was cross-examined. Affirmed evidence at the resumed hearing in August was also given by Dr Tiew Han, orthopaedic surgeon, who was also cross examined.

4. The Respondent called no witnesses.

   Legislation

5. Eligibility for DSP is governed by s 94(1) of the Social Security Act 1991 (Cth) (“Act”) which relevantly provides:

   (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; and…

   Other provisions of relevance include:

   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.

   Note:          For work see subsection (5).

   (3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

   (a)  the availability to the person of a training activity; or

   (b)  the availability to the person of work in the person’s locally accessible labour market…

   Doing work independently of a program of support

   (4)  A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:

   (a)  is unlikely to need a program of support; or

   (b)  is likely to need a program of support provided occasionally; or

   (c)  is likely to need a program of support that is not ongoing.

   Issues

6. It is not in dispute that the Applicant satisfies s 94(1)(a) of the Act.

7. It is in dispute however, whether the Applicant satisfies s 94(1)(b) of the Act. This raises sub-issues of whether, during the qualification period (being the 13-week period from the date the application was lodged, which was from 28 November 2019 to 27 February 2020) , any of the Applicant’s conditions were fully diagnosed, treated and stabilised; and, if so, whether any attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for DisabilitySupport Pension) Determination 2011 (Cth) (“Impairment Tables”) made under the Act.

8. The requirement that any condition must be fully diagnosed, treated and stabilised

   
   

   – that is, must be permanent – arises under paragraphs 6(3) to (7) of the Impairment Tables.

9. Paragraph 6(3)(a) of the Impairment Tables provides that an impairment rating

   
   

   (for the purposes of s 94(1)(b) of the Act) can only be assigned points if the condition causing that impairment is permanent. Pursuant to paragraph 6(3)(b) of the Impairment Tables, it must also be a condition that is more likely than not to persist for more than two years.

10. Paragraph 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.

    Note: For reasonable treatment see subsection 6(7).

11. The next issue, if the Applicant satisfies s 94(1)(b) of the Act, is whether he also satisfies s 94(1)(c) of the Act.

12. The decision under review must be affirmed if the Applicant does not satisfy

    
    

    ss 94(1)(b) and/or (1) (c) of the Act.

    Contentions

13. The Applicant contends that the decision under review should be set aside.

14. He argues that medication he has been taking affects his ability to work and that this was not sufficiently considered in the decision under review and neither was the report of his orthopaedic surgeon sufficiently considered.

15. The Respondent contends that the Applicant does not satisfy s 94(1)(b) of the Act or, even if he does, he does not satisfy s 94(1)(c) of the Act.

16. The Respondent contends therefore, that the decision under review should be affirmed.

    Applicant’s evidence

17. I provide hereunder a summary of the Applicant’s evidence.

18. The Applicant gave evidence that he is unemployed, aged 50 years, and living alone in a suburb of Melbourne.

19. He said he currently receives unemployment benefits.

20. He said he is married (the marriage took place in 2011) but is separated and has three children whom he said he sees “[n]ot very often”.

21. The Applicant said he injured his back (as he recalled) in 2005 while working in the logistics industry when one morning he was lifting boxes of alcohol. He said he “just felt the twinge….and then the next day it was sort of like locked up.” He said by this he meant “there was constant pain there.”

22. In 2008 he had had back surgery –a laminectomy at L5-S1 in which a disc was removed. The pain from the sciatic nerve he said, “would drop me.” The surgery was performed by Dr Han.

23. The Applicant said he is on a medicinal cannabis program to relieve the pain he experiences and was before on various different medications including Endone but with those he suffered “whiting out” due to light headedness, whereas he said “[t]he cannabis has worked.”

24. He said he last worked in 2019 in a two-day a week job doing night shift security but he lost the job after requesting award rates and he has not worked since.  

25. This however, he said, was not the reason he made an application for DSP. He said he started doing four shifts a week “and I believe I probably pushed myself too much while I was doing that, and I was on the medication.” Also he said “I think mentally it was getting to me.”

26. The Applicant said he fills in his day by looking after his dog and watching cable television.  He said: “I don’t do much, I go—I try to go walking.” He said he experiences various difficulties on a daily basis due to his back complaint—for example he said, “I can’t even pick my kids up” and “I have troubles getting into the bath.” He also said to get into or out of bed, “I’ve got to do it in sort of stages”.

27. The Applicant added that he walks with “a single cord stick …which I extend” which he uses when he feels he needs it but he said he can’t feel his right foot “with all toes and everything” and that Dr Han had told him there’s no further surgery he can have to improve his condition.

28. Cross examination was directed to the Applicant’s capabilities, particularly during the qualification period.

29. The Applicant said amongst many other things that, as regards working, “I want to be able to earn” but he said, “I don’t know what my body does to me and how my body is going to react.”

30. He said, “[t]his is the longest I’ve ever been unemployed and it’s because of my back and its deterioration” but he added “[i]t’s also because I’m on medicinal cannabis.”

31. As regards driving, he said of his right foot  “it’s the accelerator foot, it’s the braking foot.” He said, “I want to cut the bloody thing off just to get some feeling there and it’s because of my back.” Shortly before this he said, “sometimes I just want to crawl up into a little ball and die.”

32. Concerning doing sedentary work he said, “I could go in for a shift today [but] I would not be able to guarantee that I could work tomorrow or the day after.”

    Consideration

    Section 94(1)(a)

33. I have noted it is not in issue that the Applicant satisfies s 94(1)(a) of the Act.

34. I am satisfied that that is quite properly not in issue.

35. I find therefore that s 94(1)(a) of the Act is satisfied.

    Section 94(1)(b)

    (A) Permanency

36. I am not in any doubt that the Applicant has suffered greatly because of his various conditions including his mental health but particularly because of his back condition.

37. His evidence was that his back condition has had a profound effect on his life. He has undergone serious surgery and has taken numerous medications – all apparently to not much avail until taking prescribed cannabis.

38. In these Reasons I am focusing only on his spinal or lumbar condition as this follows the course the hearing took.

39. The Respondent submits that although it is accepted as fully diagnosed, the Applicant’s condition was not fully treated and fully stabilised during the qualification period and this was the finding Tier 1 made.

40. If the Respondent is correct in this, then the Applicant is unable to be assigned any points under the Impairment Tables because he fails to qualify at the outset.

41. As I understand the Respondent’s submissions, the Applicant’s back condition cannot be said to be fully treated and fully stabilised based on the evidence of Dr Han who, in a letter dated 9 February 2021, recommends that the Applicant be referred to a pain management specialist.

42. I cannot agree with this submission having listened carefully to the oral evidence given by Dr Han at the resumed hearing in August.

43. His evidence, given on affirmation, which he was not seriously challenged about, was that “further surgery would not help him.” This establishes to my satisfaction that there is nothing further surgically which can be done to assist the Applicant. This accords with the view of Dr Wendy Tyshing on 27 January 2022 which, although written after the qualification period, relates to a time which I consider relevant also to that period. In that regard I note the Respondent relied on the opinion of Dr Han expressed in his letter dated 9 February 2021, also written after the qualification period but relating to matters relevant to that period.

44. A scan showed to Dr Han that the Applicant’s back condition is “not bad enough to require surgery” and that the Applicant’s pain might be explained “because of microscopic changes on the disk above [where he operated] that you don’t see on the scan.”

45. So then the question arose in the course of Dr Han’s evidence of other possible methods of managing the Applicant’s pain.

46. But Dr Han’s evidence on this point was inconclusive or unhelpful to the Respondent and it was not improved by cross-examination.

47. In answer to a question from me, Dr Han agreed that “[p]ain management can be both beneficial or useless”. When I put a question to him in those terms he said, “You’re right. It’s either way.” He suggested a person suffering pain should at least get an “opinion” from a pain management specialist but this is far from saying that a pain management specialist’s consultation in the Applicant’s case would make the slightest difference.

48. In cross examination Dr Han said he thought it would be “reasonable” for the Applicant to seek out an “opinion” from a pain management specialist.

49. In terms of paragraph 6(6) of the Impairment Tables, this evidence of Dr Han should not be elevated in status beyond what it strictly says.

50. In light of Dr Han’s statement that pain management can be both “beneficial or useless” I am unable to find that pain management can reliably be expected to result in this case in a substantial improvement in the Applicant’s functional capacity or can be regarded as having a high success rate. See paragraph 6(7)(c) and (e) of the Impairment Tables which feed into the operation of paragraph 6(6).

51. In these circumstances, I do not consider it reasonable to make a finding that the Applicant’s back condition is not fully treated and not fully stabilised because of a recommendation he see a pain management specialist.

52. Dr Han’s oral evidence did not go so far and suggested only the Applicant should get an opinion from a pain management specialist. That is not quite saying he should be treated by one. Moreover, Dr Han agreed even going to one could be “useless”. It would be different if he had said it could only be “beneficial” but that is not what he said.

53. An impression I also got from Dr Han was that he was not quite comfortable in the area of pain specialists in any event and that his views were very tentative in that regard.  Indeed, he said, “my view is very skewed towards surgery and therefore I thought this is out of my depth”, referring to the Applicant’s pain state. Dr Han is not himself a pain specialist and the clear impression I got was that he was guessing that a pain specialist might be of some advantage – “beneficial or useless.”

54. That is not a basis for me to make a finding that the Applicant cannot be regarded as failing to qualify for consideration under the Impairment Tables because he should be seeing a pain specialist. The evidence of Dr Han does not lead me to that view in the least when properly considered.

55. I do not consider I am bound to apply the reasoning or the decision in Lucas and Secretary Department of Social Services [2018] AATA 2563, in which Tavoularis SM said it would be “inappropriate” to consider a condition permanent if a pain management course has not been completed at a recognised pain clinic. I am not aware of the source of that observation. Nothing in the evidence suggested to me in any event that it would be “inappropriate” to find the Applicant’s condition is not permanent because he has not sought out a pain specialist.

56. The fact is, in any case, I was not told by the Respondent what a referral to a pain management specialist would do, whether any course(s) would be offered or whether a particular one would be more suitable than another or where the pain clinic might be located or indeed whether there were any recognised pain courses or pain clinics in Victoria to attend.

57. The Respondent simply provided me with no sound evidence to rely on in relation to pain clinics or pain courses beyond the casual reference to pain management in Dr Han’s letter – not expecting that I would adjourn the proceedings to hear from Dr Han in person to hear the proper expression of his opinion, which did not further the Respondent’s contention that the Applicant’s condition was not fully treated.

58. So, I reject the Respondent’s submissions on this point and note also that surgery is of no further help to the Applicant.

59. I rely upon Dr Tyshing’s opinion I have mentioned earlier expressed in her letter dated 27 January 2022.

60. Having heard from the treating doctor who carried out the surgery and in light of the concession that the Applicant’s condition is fully diagnosed, I consider it reasonable in all the circumstances to find also that it is fully treated (medically) and fully stabilised. But I note there can be a fine line in a case where a concession is made that a condition is fully diagnosed but claimed to be at the same time not fully stabilised. Often it might be asked – how can it be conceded a condition is fully diagnosed but not fully stabilised? If it is not fully stabilised it could be changing in which case how can it be fully diagnosed? This seems to have escaped the attention of the authorities in drafting the Impairment Tables.

61. In any event, I am satisfied that the Applicant’s back condition is permanent in the statutory sense.

    (B) Table 4

62. I am quite satisfied based on his evidence and other information at my disposal that the Applicant should be assigned 20 points as appropriate to severe functional impact in relation to his spinal function under Table 4 of the Impairment Tables.

63. The Respondent provided me with little assistance on this point beyond one or two questions. Undue reliance may have been placed on Dr Han’s letter.

64. The Reasons of Tier 1 take me nowhere on this point.

65. In the course of the Applicant’s evidence I went through Table 4, focusing on 20 points for severe functional impairment because of the course of the evidence in the case as well as the information contained in the documents lodged by the Respondent under section 37 of the Administrative Appeals Tribunal Act 1975 – the T documents.

66. I am quite satisfied and find that the Applicant satisfies criterion (c) of subsection (1) of Table 4 appropriate to 20 points but not on the evidence any of criteria in paragraphs (a), (b) or (d).

67. The criteria in Table 4 relating to 20 points are not cumulative but each criterion is separated by “or” – the disjunctive – and therefore I am satisfied the Applicant is entitled to be assigned 20 points despite only meeting the criterion in paragraph (c).

68. I should indicate that I am satisfied and find that the Applicant is an honest man, not given to exaggeration.

69. Paragraph (c) specifies a person must be unable to “bend forward to pick up a light object from a desk or table.” But this contains many vague expressions. For example—does “bend forward” mean fully or only partially bend forward? Is bending forward from the hips down or from the knees down or only by the neck down? How heavy is a “light object”? And what is meant by an “object”? Is a “desk or table” a desk or table to be of normal height or not? Nothing in the Impairment Tables assists me on any of these questions. The Respondent gave me little or no assistance.

1. When asked whether he could pick up something if he dropped it, the Applicant said – “To pick it up, I’d have to go down on my knees. Like, I have to go down to pick it up. I can’t just go straight down and pick it up.”

2. In an answer in cross examination, the Applicant agreed he could pick up “something light off [a] table like a piece of paper” and he said –“Like now I just picked up a lighter, yes.” But he added –“I can’t bend down to the ground. I have to go down on my knees.”

3. I note the Respondent did not ask the obvious question whether the Applicant in picking up the piece of paper or the cigarette lighter was able to bend forward at all. And obviously I would think the Respondent had in mind picking up something from the top of a desk or table when paragraph (c) says nothing about anything required to be on the top of a desk or table.

4. Further I note that it was evidence in the case that the Applicant is quite a tall man and even picking up a piece of paper or a cigarette lighter from a desk or table of normal hip height could present difficulties for him in bending forward – even to a small degree —but these, if so, were not traversed.

5. In my view it would be absurd if someone was excluded from paragraph (c) simply because they did not actually have to bend forward to pick up a piece of paper off a table. Much more than that is needed before it can properly be said that someone does not fall within the paragraph. Parliament could not have intended otherwise in my view.

6. So without assistance from the Respondent, I must do my own analysis and make sense of the provision in light of the meaning and effect of the Act and of its main beneficial purpose.

7. The Applicant’s answer only takes him out of paragraph (c) in my view depending on the desk or table. To some extent it depends also on how heavy the light object is. Certainly, a piece of paper is a light object but so is a bag of groceries in comparison to other heavier things. Whether the Applicant could lift more than a piece of paper off a desk was not explored by the Respondent. I consider that unfortunate, bearing in mind the Applicant is self-represented. Trying to lift something heavier off a table – such as a bag of shopping – but still a “light object” may present difficulties for the Applicant meaning he is unable to do so because I accept that bending forward is a problem for him.

8. Be that as it may, the words “desk” and “table” are not defined in the Impairment Tables. A desk could be any type of desk and a table could be any type of table. Yet I find on his evidence that the Applicant is unable to bend forward to pick up a light object – including a piece of paper – depending on the desk or table in question. I note as well that the words “desk” and “table” are alternatives – only one need be satisfied.

9. There is no reason to assume that by a “desk” it was intended to include only desks without drawers or to exclude any desks with drawers. It could be any desk – no desk is excluded. The drawers on a desk with drawers still constitute part of the desk. But the bottom drawer might be on or just above the ground. In that event, I am satisfied the Applicant could not bend forward to pick up a piece of paper, let alone anything heavier (such as a book) but still a light object, out of such a drawer. I accept his evidence he would need to go down on his knees because bending down would be out of the question. Accordingly, I am not satisfied that the Applicant in reference to desks is not within paragraph (c).

10. Similarly, there is no reason to assume that by a “table” it was intended to include only tables at hip height (such kitchen tables) or to exclude tables not at hip height. It could be any table – no table is excluded. A table not at hip height could include a coffee table which is much lower down. But a coffee table could have a magazine shelf or a rack which is part of the table, but which is lower down again. Indeed, that shelf or rack might be on or just above the ground. In that event I am satisfied the Applicant could not bend forward to pick up a piece of paper – let alone anything heavier (such as a magazine) but still a light object – out of the shelf or rack. I accept his evidence he would need to go down on his knees because bending down would be out of the question. Accordingly, I am also not satisfied that the Applicant in reference to tables is not within paragraph (c).

11. By reason of the considerations I have mentioned, I am satisfied that the Applicant does fall within paragraph (c) on the analysis I have undertaken and does meet the requirement of severe functional impact. Had the paragraph been defined in its terms, I may not have needed to undertake such an attenuated analysis. But it must be for someone else to rectify that paragraph if the intention is to exclude someone like the Applicant. In my view, he is not excluded from its purview, giving the paragraph a meaning which is reasonably within the purview of its vague terms but consistent with the main object of the Act..

    (C) Corroboration

12. There is a need for so – called ‘corroboration’ in applying Table 4 arising by reason Part 2, section (8)(1) of the Impairment Tables. That specifies the kinds of corroborating evidence which is to be considered, set out at the beginning of Table 4.

13. I did not apprehend that corroboration was a hard-pressed issue in this matter, but I am satisfied in any event that corroboration sufficiently exists.

14. I do not consider that corroboration requires me to be satisfied of each of the occasions on which the Applicant has dropped something on to the ground and has not been able to bend forward to pick it up and to hear from those who may have witnessed any or all of these occasions during the qualification period or afterwards and who kept notes. The Applicant after all lives alone and does not have any great range of interests involving social interaction with others.

15. In passing, I should mention that the Impairment Tables in specifying (when they do) that self-report of symptoms is not sufficient do not deal fairly with some of the most marginalised persons in our community – people who live alone and who have no one looking after them or to whom they can turn in time of need. Often these will be people perhaps of migrant background living on their own in public housing with few means at their disposal. It is disgraceful that more thought has not been given to this – particularly in cases involving mental function – and it is time for the Impairment Tables to be thoroughly reviewed in this regard (and indeed in all others). It was not the intention of the Parliament in the Act to make it difficult or impossible for these people to be unable to obtain benefits.

16. The Impairment Tables on corroboration must be read reasonably in my view – considering the underlying purpose of the Act (under which as I have noted the Impairment Tables are made) and considering also the objectives of the Tribunal set out in s 2A of the Administrative Appeals Tribunal Act1975 (Cth), especially the reference to “justice” ---which is not merely aspirational.

17. In the first place, however, I rely upon the written and oral evidence of Dr Han. He actually performed the surgery on the Applicant – which was of a serious and advanced nature – and he is well aware of the Applicant’s condition and the pain and incapacities it delivers. That is one reason why he even mentioned referral to a pain management specialist. It could not possibly be within his contemplation – on any reasonable analysis – that the Applicant’s condition is something he cannot corroborate. The substance of Dr Han’s  evidence was plainly in support of the Applicant’s back condition being painful and thus limiting ---as I took his evidence to be.

18. Secondly though there is the detailed medical report of Dr Tyshing which fully supports the Applicant in all material ways.

19. In my view, and I find, there is sufficient and appropriate corroboration, and the matter is far removed from the self-reporting of symptoms.

20. Accordingly, Impairment Tables Part 2, section (8)(1) is satisfied.

    Section 94(1)(c)

21. I have indicated my view that the Applicant satisfies s 94(1)(b) of the Act having also satisfied s 94(1)(a).

22. Unless, however, the Applicant also satisfies s 94(1)(c) of the Act, the decision under review must be affirmed.

23. The Respondent submits that the Applicant does not meet the requirements of s 94(1)(c). The Respondent places reliance on the Job Capacity Assessment (“JCA”) Report dated 27 February 2020.

24. But I am satisfied to the required degree that the Applicant does satisfy s 94(1)(c) in that I am satisfied he has a continuing inability to work of the kind required by the Act by reason of his back condition.

25. Because his back condition is in the nature of a severe impairment, the Applicant is not required by the Act (see s 94(2)(aa)) to demonstrate he has actively participated in a program of support. I note though that he has participated in a program of support for 306 days but this is less than the 546 days required in the 36 months prior to the date of his DSP claim.

26. In forming my view under s 94(1)((c), I have considered whether the Applicant satisfies s 94(2)(a) and (b)(i) of the Act, and I am satisfied that he does. As regards s 94(2)(b), only (i) or (ii) need be satisfied because they are alternatives.

27. I have also paid no regard to the matters mentioned in s 94(3), either (a) or (b).

28. My view is not altered by the JCA Report I have mentioned.

29. I asked the Applicant whether he was capable of working each week and he said (in the way he is given to speak) “I’m not sure about that.”

30. He told me his position is this – “I struggle to get out of bed”; “When I do, I have a lot of issues in regards to just functioning”; “I have numbness in my right foot which I cannot feel sometimes”; “I cannot feel my right foot at all”; “I have electric shocks that continuously run down my but [sic] cheeks into my thigh and then they …my calf and they can continue to the top of my foot”; “Sometimes I want to cut my foot off”; “I stomp on it just to get some sort of feeling back in it”. He added that “[n]early every night” he suffers insomnia.

31. He said that work all his life “has been physical, manual labour and things like that.” He had worked a lot in security but “not doing crowd -control…I couldn’t—I would struggle physically dealing with people.” In security work “you’re constantly standing on your foot …I can’t do that.”

32. He said he has vehicle licences –including a heavy rigid licence, a truck licence and a motorcycle licence – but “I can’t drive a vehicle because of cannabis in my system” which he takes by inhalation each hour on the hour.

33. As far as door work as a bouncer is concerned – “I can’t roll around on the ground and struggle.” In summary he indicated – “I’m not physically capable to be a door person.”

34. In cross-examination, as regards other kinds of work, he indicated he would be prepared to do it – if he was ever to be offered it – but with cannabis in his system “no one is going to employ me.”

35. As regards sedentary work – bearing in mind the Applicant’s working life has been mainly in security – he said he could go in for a shift one day, but “I would not be able to guarantee that I could work tomorrow or the day after.” He said “I want to be able to earn” but “I don’t know what my body does to me and how my body is going to react.” He added that “I get irritable very easy [sic] and I think it’s got a lot to do with my pain.” He said “I get angry because of it”; “I get angry at myself and I get angry at people saying you should be able to do [this] and you should be able to do that.” He added “They don’t know what I’m capable of doing.”

36. That last comment of the Applicant( and some others) sums up the Applicant’s position for me satisfactorily.

37. I am not in a position where I can make a finding that any work could be carried out by him at all or with limitations. He has limited skills and experience. But the skills he does have he cannot put to use – he is unable to drive because he is taking cannabis for his back pain; he is also unable to drive because of the condition in his right foot (caused by his back condition) which affects his ability to use an accelerator or brake; he is unable to do security work because of his back because he is unable to stand for any required lengthy period and would struggle dealing physically with people in the line of such work.

38. If I look at other possible work opportunities the result is the same. He has no or limited skills outside security work. Training him would be burdensome to an employer and costly. His attendance could or would be irregular and could or would making roster planning a fruitless task.  And, would an employer realistically want to employ him if he is on cannabis? At work he could make the environment wherever he was unpleasant because of his anger and this could include upsetting co-workers leading to adversity for the employer. He could or would get angry being asked by the employer to do this or that or told that he should be doing this or that.

39. In all of these circumstances – wherever he was in Australia – I find he has a continuing inability to work and that this is so since the commencement of the qualification period and will continue to be so for a period which includes the next two years at the very least.

40. This raises the issue of the JCA Report dated 27 February 2020. This is a report completed nearly three months after the end of the qualification period.

41. I do not consider I am bound to accept the findings of or recommendations in a JCA report if I am rationally satisfied I should not do so.

42. The JCA report in this matter is completed by some unidentified person except possibly someone who can be identified via a numerical reference – “JSKID- 906429004”. If I am right, I still have no idea who this person might be – a registered nurse, a social worker, an occupational therapist, a psychologist, etc. This is completely unsatisfactory. I have no notion of what skills the person may have to express any opinion at all about the Applicant. And the person, whoever they are, was not called to give evidence.

43. Accordingly, I am not satisfied I can place any reliance at all on what the person says in the Report.

44. In my view, this person states nothing of much value in the Report but oddly does say with apparent authority the Applicant “does not have any permanent, fully diagnosed, treated and stabilised medical conditions.” This raises the question of how this person is able to say this, and what expertise they bring that enables them to express this view. Moreover, I see this statement in the Report as being in conflict with the evidence of Dr Han, not to even mention the opinion expressed by Dr Tyshing or the concession of the Respondent regarding a 94(1)(a).

45. That view, for reasons I have given, is in any event quite wrong and it differs as I indicate from the Respondent’s stated position conceding that s 94(1)(a) of the Act is satisfied. I am at a loss as to why the Respondent conceded that if relying on the JCA Report as stated.

46. I therefore reject the JCA Report and consider it would be irrational of me in the circumstances not to do so.

    Conclusion

47. I have analysed the Applicant’s proceeding solely in terms of his back condition. I am aware he claims to have other conditions but I make no rulings as regards those.

48. I suggest greater concern should have been given to settling this matter at an early point. To my mind the case when properly considered is a straightforward one of entitlement to DSP under and in accordance with the Act. The Applicant should not have had to experience the anguish of a hearing. Other applicants could well be in the same situation.

49. The conclusion I have reached is that the Applicant satisfies not only ss 94(1)(a) and (b) but satisfies also s 94(1)(c) of the Act.

50. In consequence, the decision under review cannot stand and must be set aside.

    Decision

51. The decision under review is set aside and a decision is substituted that the Applicant is entitled by law to a DSP with effect from the date of his claim in respect of his spinal or lumbar condition.

52. I make no decision or findings regarding any of the Applicant’s other health conditions, except as I have indicated.

I certify that the preceding 121  (one hundred and twenty one) paragraphs are a true copy of the reasons for the decision herein of
Damien Cremean, Senior Member

..........................[sgd].............................................

Associate

Dated: 11 October 2022

Dates of hearing:	29 April, 4 August 2022.
Applicant:	Self-represented
Advocate for the Respondent:	Ms N Markov
Solicitor for the Respondent:	Services Australia