Wittig-Goss and Secretary, Department of Social Services (Social services second review)

Wittig-Goss and Secretary, Department of Social Services (Social services second review) [2019] AATA 765 (26 April 2019)
Division:GENERAL DIVISION
File Number(s): 2018/2039
Re:Murray Wittig-Goss
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke AO, Member
Date:26 April 2019
Place:Melbourne

The Tribunal affirms the decision under review.
………[sgd]……………………………..
Ms Anna Burke AO, Member
SOCIAL SECURITY – application for disability support pension – whether qualified – mental health condition, lumber spine condition, cervical spine condition, bilateral shoulder condition and left elbow pain – 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, Version 1.253; Department of Human Services; Released 20 March 2019.
REASONS FOR DECISION
Ms Anna Burke AO, Member
26 April 2019
INTRODUCTION

Mr Wittig-Goss 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 2 April 2017 Centrelink found that Mr Wittig-Goss 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 22 February 2019. Mr Wittig-Goss was self-represented and Ms Ailsa Bramley, a government lawyer in the Freedom of Information and Litigation Team of the Department of Human Services, appeared for the Respondent. The Applicant gave evidence under affirmation and was cross-examined by Ms Bramley.
THE ISSUES IN CONTENTION
The issues in contention are whether, in the qualifying period (defined below), Mr Wittig-Goss:
(a)had a physical, intellectual or psychiatric impairment;
(b)had a condition which had been fully diagnosed, treated and stabilised and was likely to continue for at least two years;
(c)had 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)had a continuing inability to work.
BACKGROUND
Mr Wittig-Goss is 48 years of age, lives alone in country Victoria and has not worked since 2010 due to the (“onset not ongoing event”) pain in his arm. Prior to this he had been a self-employed electrician. He gave evidence that everything had gone downhill when his partner had died from cancer and his home was devastated by floods, which included the loss of all his tools. Whilst he did receive some compensation for the flood loss, he had never been able to re-establish himself. It was during this period that he started having trouble with his hands and has not been able to return to work since.
On 30 November 2016 Mr Wittig-Goss made an application to Centrelink for DSP, citing his medical conditions as: disc bulge and canal stenosis (in the C-spine C5/6 permanent); pain and weakness in hands and carpal tunnel operation (permanent); and nerve damage in shoulders (permanent).Centrelink is the service provider for the Department of Social Services.
On 21 February 2017 Centrelink had a job capacity assessment (JCA) conducted on Mr Wittig-Goss. The JCA report awarded him nil points under the Impairment Tables, having found the following:
·Neck disorder was considered to be fully diagnosed, but not fully treated and stabilised as not all “optimal treatment options” had been exhausted;
·Carpal tunnel syndrome was considered to be fully diagnosed, treated and stabilised as the diagnosis had been confirmed by a GP and Mr Wittig-Goss had “engaged in reasonable treatment” and significant improvement was not expected in the next two years;
·Depression with adjustment disorder was verified but not considered to be fully diagnosed, treated and stabilised as there was no evidence from a clinical psychologist/psychiatrist and optimal treatment options had not been exhausted:
·Mr Wittig-Goss was assessed as having a temporary work capacity of 8 to 14 hours to allow him to seek appropriate medical treatment. His baseline work capacity was reduced to 15 to 22 hours per week due to permanent medical conditions of carpal tunnel syndrome, depression and chronic neck/shoulder pain. The assessor noted that “Symptoms of Depression with adjustment disorder reduce customer’s concentration and efficiency in task completion, his ability to interact effectively with other people in work place or in high stress contexts. Symptoms of Carpal Tunnel Syndrome may reduce client’s ability to perform manual handling tasks. Client reported he is able to manage most manual handling tasks but it takes him a while to complete the tasks as he has reduced strength in both hands.”
On 23 August 2017 Centrelink conducted a file assessment of Mr Wittig-Goss, which recorded no impairments. The JCA report stated that:
·the neck disorder was considered to be permanent and fully diagnosed, but not yet optimally treated or stabilised as medical evidence indicated the condition would improve with surgical intervention, with the surgery anticipated to occur within six months; and further time would allow the intervention to occur and functioning capacity to be evaluated’ and therefore nil points were awarded for this condition;
·the depression with adjustment disorder was not considered fully diagnosed, treated and stabilised as the condition had not been assessed by a clinical psychologist/psychiatrist and further psychological intervention was required and therefore nil points were awarded for this condition;
·the carpal tunnel syndrome could not be considered fully diagnosed, treated and stabilised for the purpose of the assessment as a minimum standard for medical evidence had not been satisfied; and therefore nil points were awarded for this condition; and
·Mr Wittig-Goss was assessed as having a temporary reduced baseline work capacity of 0 to 7 hours per week to allow him to pursue health and medical intervention to address pre-vocational barriers. The report said “This is supported by neurosurgeon Dr Wallace [who] indicated the condition was extremely painful, affecting both hands and arms and producing rapid pain and fatigue from his arms whenever he uses them in an outstretched position… Mr Wittig-Goss has a permanent condition, Thoracic Outlet Syndrome that impacts mobility, movement of upper limbs and body as well as endurance secondary to chronic pain and depression. Symptoms may limit performance of physical tasks. They may impact on reliability and consistency with work attendance and performance within the open labour market.”
On 18 December 2017 a registered nurse within the Health Professional Advisory Unit (HPAU) provided the following opinion :
·there was sufficient medical evidence to support the assigning of a permanent and fully diagnosed but not fully treated and stabilised definition to the Thoracic Outlet Syndrome (TOS);
·there was sufficient medical evidence to support the assigning of a permanent and fully diagnosed and treated stabilised definition to the Bilateral Carpal Tunnel Syndrome and it was not expected to improve within the next two years; however, nil impairment points were assigned under Table 2 as he also experiences impacts on upper limb function secondary to the TOS; and the impact on upper limb function cannot be separated from the impacts of the TOS;
·there was sufficient medical evidence to support the assigning of a permanent and fully diagnosed treated and stabilised definition to the cervical lumber spine condition and five impairments points were assigned under Table 4 as the evidence confirmed mild functional impact on activities involving spinal function; and
·there was sufficient medical evidence to support the assigning of a permanent but not fully diagnosed treated and stabilised definition to the depression.
On 18 December 2017, a departmental Authorised Review Officer (ARO) conducted an internal review and found that Mr Wittig-Goss had permanent conditions of Bilateral Carpal Tunnel Syndrome and cervical and lumbar spine pain, but that his conditions of TOS and depression were not considered permanent, as they had not been fully treated and stabilised. The ARO stated:
The medical evidence indicates that you have depression. The Guide to the Impairment Tables requires not only a supporting diagnosis by a clinical psychologist or psychiatrist, but, it is also necessary to show that there has been a reasonable period of treatment by a medical practitioner qualified to treat mental health conditions. The practitioner would also need to have formed the opinion that the condition has been optimally treated and that no significant improvement is likely within the next 2 years. In the absence of this supporting evidence, the status of your condition cannot be accepted as fully treated and stabilised, and therefore at the time of your claim, cannot be assigned an impairment rating.
…
Your medical evidence confirms a condition of Thoracic Outlet Syndrome. While the impact of your condition is not in doubt, I agree with the Health Professional Advisory unit that the condition is determined to be permanent and fully diagnosed but not fully treated and stabilised as you are yet to be reviewed by Mr J Goldblatt, cardiothoracic surgeon… At the time of your claim your condition cannot be assigned an impairment rating.
…
The Health Professional Advisory Unit has determined that your condition of bilateral carpal tunnel syndrome is fully diagnosed, treated and stabilised and can be assigned a rating under Impairment Table 2 for Upper Limb Function. I agree with the opinion of the Health Professional Advisory Unit of a zero impairment rating, as you also experience functional impact on your upper limb functioning, for your condition of Thoracic Outlet Syndrome which is not assessed as being fully treated and stabilised. The impacts on upper limb functioning cannot be separated from each individual condition, therefore, I see no reason to change the zero impairment rating. You do not meet the high descriptors that this impairment table.
Your medical evidence confirms your cervical and lumbar spine conditions. You have been assigned an impairment rating of 5 points under Table 4 for Spinal Condition. The rating was based upon your description of your physical abilities in the medical evidence available. At the time of her claim you do not meet the higher descriptor for this impairment table.
On 9 March 2018 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision of the ARO to reject Mr Wittig-Goss’s DSP claim. The AAT1 awarded an impairment rating of nil points.
On 16 April 2018 Mr Wittig-Goss sought a review of the AAT1 decision by this division of the Tribunal, stating in his application:
Main reason was my surgeon report was not considered as he was not going to do operation on me himself due to he only does private people not public. He did however explain the operation with me. he could not give me a percentage of success rate. Only it could stay the same. Get better. OR GET WORSE. That is why I wrote a letter stating I would not have operation. Also I have bulging disc’s in neck. I was told not treated. Doctor in Melbourne said I could have Botoux injections in neck. also run it through brain. Surgeon told me not or have Botoux injections to run it through brain.
In accordance with Schedule 2, s 4(1) of the Social Security (Administration) Act 1999 Mr Wittig-Goss’s qualification for DSP is to be determined within the period from the date of claim to a date 13 weeks thereafter, being 10 March 2017 (the qualifying period).
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;
…
The Impairment Tables require 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-reporting 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:
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:
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.
For the purposes of s 6(7) of the Impairment Tables, “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, during the qualifying period, Mr Wittig-Goss suffered an impairment of 20 points or more under the Impairment Tables; and, if so, whether he had a continuing inability to work.
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, not to assess the conditions themselves (see Part 2, s 5(2)).
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 the Applicant’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 o s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents” and additional medical reports provided by Mr Wittig-Goss.
DOES MR WITTIG-GOSS 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 suffers from an impairment.
The parties accept that Mr Wittig-Goss is suffering from a spine condition (neck disorder, disc bulge at C5/6 and canal stenosis); shoulder and upper arm disorder (TOS, carpal tunnel syndrome) and a mental health condition (depression). Accordingly, the Tribunal finds that Mr Wittig-Goss 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 the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MR WITTIG-GOSS HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Spine condition (neck disorder, disc bulge at C5/6 and canal stenosis)
A report of a CT Scan of 29 June 2016 concludes:
Mild C5/6 disc degeneration. A small, broad disc bulge contacts and minimally indents the cord but does not result in significant central canal narrowing. This is unlikely to be clinically significant. No lateral disc hemiation, foraminal stenosis or nerve compression is identified to explain bilateral radiculopathy.
A report of a CT Scan of 25 August 2017 concludes: mild grade degenerative canal stenosis at L4-5 level with moderate bilateral L4 for foraminal narrowing.
On 7 December 2017 Mr Wittig-Goss’s general practitioner, Dr Kieran Lalor, provided advice to the HPAU in respect of Mr Wittig-Goss’ numerous medical conditions. In the letter Dr Lalor stated: The bulging discs in his C and L spine cause him pain, decreased range of movement and his feet are always numb.
The Tribunal explored the functional impact of Mr Wittig-Goss’ impairment under Table 4 of the Impairment Tables because the accepted condition primarily impacts on his spine. In particular, the Tribunal explored his capacity in respect of a moderate functional impact. Table 4 states:
Table 4 – Spinal Function – 10 points
There is a moderate functional impact on activities involving spinal function.
1The 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 Wittig-Goss gave evidence that during the qualifying period:
·he could not perform any overhead activities and that he fundamentally did not do things such as washing his hair;
·that he had difficulty moving his head as he suffered sharp pain when he did so;
·that he was now driving again after having had his license disqualified due to the impact of alcohol and the painkillers he has been taking and that when he drives he turns his whole body to check for blind spots;
·that he had no issue bending but had difficulty lifting objects because of the residual impact of his carpal tunnel syndrome; and
·that he can get out of a chair if it’s at the right height and he has something to lean on.

Dr Lalor’s letter of 7 December 2017 advised that Mr Wittig-Goss has no trouble with standing, walking, driving, using stairs and that he can do limited bending. He does water aerobics to try and help himself. Mr Wittig-Goss cannot turn his head from side-to-side very easily and if he needs to he has to use his shoulders a lot. Similarly, Dr Lalor wrote that looking up causes Mr Wittig-Goss pain and is difficult to do.
The HPAU assigned Mr Wittig-Goss five impairment points under Table 4 as there was a confirmed mild functional impact on activities involving spinal function. The HPAU noted it was not likely there would be significant improvement in spinal function within the next two years, even with ongoing conservative treatment. The Respondent submitted that the AAT1 did not accept the HPAU recommendation that the spinal condition was fully diagnosed, treated and stabilised. The Tribunal was unable to find any reference to the HPAU report in the AAT1 decision and was unaware if the Member had considered this report in their determination.
The Respondent contended that the medical evidence did not support a finding that the condition had been fully treated and stabilised as it made no reference to previous treatment or alternative treatment options in respect of this separate condition.
The Tribunal is satisfied that Mr Wittig-Goss’s neck disorder, disc bulge at C5/6 and canal stenosis was fully diagnosed, treated and stabilised during the qualifying period and was having a mild impact upon his functionality. That he had sought and received treatment for pain he was experiencing in his neck and the corroborating CT scans confirms the disc bulge at C5-6. The Tribunal has considered the functional impact as reported by Mr Wittig-Goss, which was corroborated by his treating general practitioner, namely that he had no difficulty with sitting but had difficulties bending, with overhead activities, lifting, and needed support to get out of a chair. The Tribunal therefore assesses the spinal condition as mild under Table 4, as this best reflects the functional impact of this condition during the qualifying period. Therefore, the Tribunal has awarded the condition five impairment points.
Shoulder and upper arm disorder (thoracic outlet syndrome, carpal tunnel syndrome)
On 13 February 2017 Associate Professor John King, neurologist, provided an opinion to Mr Wallace in which he opined that:
Looking at the MRI of his cervical spine, he does have degeneration of the C5-6 disc, with a disc bulge at that level… The exact cause of his arm pain is not clear to me. It could be a thoracic outlet problem given his drooped shoulders, but he doesn’t have wasting of the small muscles of the hands and he has quite good pulses. I suppose a bilateral C6 radiculopathy might give similar symptoms. I told him that you have a vast experience with thoracic outlet syndrome and a unilateral procedure should give effective relief of his symptoms.
On 27 April 2017 Mr Simon Balster, physiotherapist, advised that he had seen Mr Wittig-Goss four times but with no success. He said:
He’s unable to perform the smallest of our TOS rehabilitation exercises without them aggravating his symptoms. His muscular weakness around his scapulothoracic muscles is considerable. Flexion of his arm results in bilateral but R > L interior scapular winging and downward rotation. His trapezius muscles produced 20% the force I’d expect from a normal muscle. I don’t think I can be of assistance with solving Murray’s problem.
The HPUA report notes that on 2 November 2016 Mr Wallace, had noted that:
Mr Wittig Goss had been seen by Dr D. Wong, general surgeon, EMG studies done and had proven bilateral carpal tunnel syndrome in 2010. Mr Wittig Goss had left and right carpal tunnel decompression but had breakdown and infection in the right. Mr Wallace had noted that prior to carpal tunnel syndrome Mr Wittig Goss had pain in the neck radiating to his both arms and into his hands, began slowly but became progressively worse and continued to worsen after his surgery. He had medical reviews and was sent for further electrical tests and was told his carpal tunnel was still a problem. Needle sampling of his arms and issue raised of nerve damage. Nil MRI scans was ordered. Mr Wallace had noted Mr Wiitig Goss had ongoing problems with both arms, with pain radiating to left side of the neck more than the right simultaneously, radiating down the arms to the hands and involving all fingers.
On 29 May 2017 Mr Wallace opined that Mr Wittig-Goss had the unusual and poorly understood but extremely painful condition of Thoracic Outlet Syndrome which affected both his arms and produced rapid pain and fatigue of the arms whenever used in an elevated or outstretched position. He noted that Mr Wittig-Goss had been treated by a physiotherapist who he described as a world authority on the non-surgical treatment of this condition; but it had been proven beyond his help and treatment had been totally ineffective. Mr Wallace opined that, at this stage, Mr Wittig-Goss’ condition could only be treated surgically and that he had a very high chance of success. He indicated the surgical options were a scalenotomy or a transaxillary rib resection. In his letter, Mr Wallace restated:
He does not have private health insurance and unfortunately I am unable to treat him within the public sector, having retired from the Royal Melbourne Hospital after a 50 year association there, and my surgical practice continuing only in the private sector at Epworth Hospital. Accordingly I am referring him to a colleague Mr John Goldblatt, a very experienced cardiothoracic surgeon, who has expertise in the treatment of this disorder, with the hope that Mr Goldblatt may be able to undertake surgery for him in the public sector at the Royal Melbourne Hospital.
Whilst there is a very good chance of him eventually getting back to work, it is highly unlikely that he will be able to firstly obtain prompt treatment in the public hospital system, where he will have to be on a waiting list, but it is inconceivable that even with the best possible outcome from surgical treatment with a cure of his condition and a restoration of his ability to work as an electrician, that this will be achieved in under six months or so. However, there is no guaranteeing that surgery for this bilateral thoracic outlet syndrome will cure his symptomology and allow him to get back to full activities as an electrician, but successful surgery treatment is his best hope for a full recovery.
Dr Lalor’s advice to the HPAU also referred to Mr Wittig-Goss’ TOS and carpal tunnel syndrome. In the letter he stated:
The Thoracic Outlet Syndrome does not allow him to lift his arm above his head at all with much discomfort and weakness. His hands get affected and even carrying light plastic bags of groceries is a problem.
The Carpal Tunnel Syndrome bilaterally causes him to have no strength in his hands and he tends to easily drop things.
…
He has had unsuccessful operations on both wrists. It seems there is no guarantee of any further surgery helping.
On 8 March 2018 Dr Lalor provided advice to the Tribunal from Mr Wallace confirming the presence of a florid bilateral neurogenic TOS and that the the only treatment he could offer was a surgical one. He noted Mr Wittig-Goss was understandably not keen to have the operation as there was not a 100% guarantee of success and he could end up worse. Therefore, there was no other treatment available other than analgesia; which meant this problem appeared to have been fully dealt with.
On 15 August 2018 Dr Christina Woods, consultant neurologist, provided a medical report to Dr Lalor in which she stated:
Examination of the lower limbs today revealed normal tone and reflexes. There was no muscle wasting and power was preserved. He does have reduced pinprick up to the knees with preserved proprioception and vibration and negative Romberg’s.
Nerve conduction studies done here at RMH of the upper limb show that the medium neuropathies have improved since carpal tunnel surgery and did not reveal any convincing evidence of neurogenic thoracic outlet syndrome. He has had nerve conduction studies done locally of the lower limbs that do not reveal large fibre neuropathy. He has had a number of blood tests which have all been normal.
I presume the diagnosis of thoracic outlet syndrome was based on his history and clinical examination taken by David Wallace, an expert in this area. Murray also describes many investigations prior to attending RMH.
…
As a separate problem it seems like he has probably has small fibre neuropathy.
…
I not have arranged for further follow-up in our clinic. Referral to a multidisciplinary pain service would be advisable regarding further review.
The Tribunal next explored the functional impact of Mr Wittig-Goss’s impairment under Table 2 of the Impairment Tables (a moderate functional impact). Table 2 states:
Table 2 – upper limb Function – 10 points
There is a moderate functional impact on activities using hands or arms.
1The person has difficulty with most of the following:
(a)picking up a 1 litre carton full of liquid;
(b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)holding and using a pen or pencil;
(d)doing up buttons or tying shoelaces;
(e)using a standard computer keyboard;
(f)unscrewing a lid on a soft-drink bottle.
Mr Wittig-Goss gave evidence that during the qualifying period:
·he could not pick up a 1L carton of liquid without using both hands but he often drops things, that he would struggle to pick up a cardboard box and that a friend does all his shopping;
·he could use a pen for a short time but then he finds his fingers have a tendency to cramp up and it becomes very painful;
·he could not tie up shoelaces and buttons, and that he wears boots and T-shirts to accommodate this difficulty;
·he was not computer literate and did not use a keyboard but just his mobile phone, which he did find difficult at times; and
·he could not unscrew a lid and had tools to assist him with this task.
Doctor Lalor’s letter of 7 December 2017 advised that Mr Wittig-Goss could not:
·pick up a light and bulky objects using both hands;
·reach out and pick up objects;
·repeatedly reach out and pick up anything; and
·carry anything heavier than 1kg for fear of dropping it.
Additionally, Dr Lalor described the functional impacts of Mr Wittig-Goss’ bilateral carpal tunnel syndrome: he experiences mild difficulties handling small objects like coins, he battles to hold and use a pen or pencil, he has difficulty with laces and buttons but he counters this by wearing non-lace up boots, and he has a great deal of trouble with keyboards and unscrewing lids on jars without using a device to open lids.
The Respondent contended that the medical evidence did not support a conclusion that Mr Wittig-Goss’ TOS had been fully treated and stabilised during the qualifying period. It was not until April 2017 that the physiotherapist advised he was unable to assist in management of the condition and Mr Wallace indicated that surgical treatment was recommended and would be of benefit. The Respondent accepted that the medical evidence confirmed that Mr Wittig-Goss’ Bilateral Carpal Tunnel Syndrome was fully diagnosed, treated and stabilised.
The Respondent contended that Mr Wittig-Goss’ upper limb functionality was impacted by both his TOS and Bilateral Carpal Tunnel Syndrome; and, given only one condition was considered fully treated and stabilised, the functional impact of the two conditions could not be separated and therefore nil impairment points should be assigned under Table 2.
The Tribunal notes that the condition of TOS has continually been referred to by the numerous treating medical specialists as difficult to diagnose. This seems to have been borne out by the most recent medical opinion of Dr Woods, who appears guarded in her opinion of the causation of Mr Wittig-Goss’ pain. Whilst surgery was initially recommended by Mr Wallace as appropriate treatment for resolution of this condition, to date no treating doctor in the public system has indicated that Mr Wittig-Goss would benefit from such surgery and he has not been placed on any waiting list for this procedure.
Additionally, Mr Wittig-Goss is rightly apprehensive of undertaking such surgery without any guarantee of significant success, especially in light of his negative result from his carpal tunnel procedure. The Tribunal notes the mention of “reasonable treatment” in s 6(7) of the Impairment Tables includes a requirement that it can reliably be expected to result in a substantial improvement in functional capacity. No such expectation has been provided to Mr Wittig-Goss. Therefore, the Tribunal does not consider the treatment is reasonable; which opinion has been again borne out by subsequent treating practitioners.
The Tribunal is satisfied that Mr Wittig-Goss’ Bilateral Carpal Tunnel Syndrome was fully diagnosed, treated and stabilised during the qualifying period and was having a moderate impact upon his functionality. The Tribunal is satisfied Mr Wittig-Goss had sought and received treatment for the pain he was experiencing in his hand and arms, . The Tribunal considered the functional impact as reported by Mr Wittig-Goss, which was corroborated by his treating general practitioner, in that he had difficulty picking up a 1L carton of liquid, picking up bulky objects, using a pen or keyboard, that he was unable to tie his shoelaces or do up buttons and could not unscrew a lid on a jar. The Tribunal therefore assesses the upper limb condition as moderate under Table 2 as this best reflected the functional impact of this condition, and the Tribunal awards the condition ten impairment points.
The Tribunal notes the Impairment Tables clearly state that when two or more conditions cause a common or combined impairment, a single rating should be assigned but it does not find that the Impairment Tables preclude a condition from being considered if another condition is present.
Mental health condition (depression)
A mental health care plan dated 1 May 2014 diagnosed Mr Wittig-Goss with chronic pain with depression and adjustment disorder. The report noted:
5 years back after the death of his partner all his problems started. He lost his house, property in the flood. He has been suffering from chronic neck pain and hand pain, surgery was done it has no improved his condition. He was unable to work. He lost his license due to drink driving. No finances because he has not filed the tax file. He could not pay the bills, debts accumulated. Because of all these he is very stressed. Recently his father died and in the funeral he came to know that he is not his biological father. His sleep is very much disturbed. Not much close friends. No contact with his family
Dr Teslin Mathews, consultant psychiatrist, in a letter to Mr Wittig-Goss’ general practitioner in support of Mr Wittig-Goss’ application for DSP of 4 April 2018, diagnosed Mr Wittig-Goss as suffering from Chronic Adjustment Disorder with depressed mood in the background of anxious dependent personality traits. Dr Mathews recorded an extensive history in this assessment noting:
As you know Murray is a 48-year-old single man, who lost his partner to cancer in 2011 and has lived alone since then..; he has no children. He was an electrician until 2011 when he had multiple losses; after he had surgery for Carpal Tunnel Syndrome, lost his partner and lost all his belongings in the floods.
…
He had been in a same sexual relations since 2007 seven; after ending both his previous marriages.
Murray’s father passed away in 2013, and at that point Murray discovered that his father was not his biological father, and this was a big blow to him.
Since 2013, he has become more and more depressed, very teary and breaks down with minimal stimulus. He also suffers with chronic pain which has not recovered after the surgery.
…
IN THE PAST: Murray was treated for anxiety and depression and was on Lovan 40mg in the morning. He also saw several psychologists over a period of time.
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Murray’s stepfather had raised his as his own son although he was born out of another of his mother’s relationship.
Murray’s biological father was aboriginal.
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Murray was sexually abused by his older brother, over a period of time from age 11. At this stage, Murray has no contact with his siblings or with his mother.
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Murray has suffered sexual abuse in childhood and is possibly grieving the death of his stepfather and is adjusting to the fact that he is from another of his mother’s relationships.
He is still grieving his past losses and possibly dealing with chronic pain issues and his inability to function.
…
Murray has significant physical problems which are treated and stabilised which stop him doing paid work.
The Tribunal next explored the functional impact of Mr Wittig-Goss’ impairment in respect of his mental health condition under Table 5 of the Impairment Tables. In respect of moderate functional impact, Table 5 states:
Table 5 – Mental Health Function - 10 points
There is a moderate functional impact on activities involving mental health function.
1The 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.
Mr Wittig-Goss gave evidence that during the qualifying period:
·he struggled at times to look after himself, that he became very sore doing the housework and he had to stop constantly, that a friend used to come over with cooked meals, that he often escaped to another friend’s property to isolate himself in their caravan, and that he had to push himself to shower regularly;
·he used to be a very active person and played golf and went to the football but since about 2013-14 he had been isolated and undertaken no activities;
·he was not in a relationship and had no contact with his family but he had friends who he could call who understood his problems;
·he had great difficulty concentrating and it took him a long time to complete simple tasks, most of it depending on how he was feeling each day;
·he couldn’t cope with stress, pressure or making decisions, he just wants to keep to himself and doesn’t plan ahead; and
·he did not believe he was capable of undertaking any work or training and that during his program of support he felt he just sat in a room and didn’t believe much sank in.

The Respondent submitted that this condition could not be considered fully diagnosed, treated and stabilised during the qualifying period as a diagnosis of Mr Wittig-Goss’ depression had not been made by an appropriately qualified medical practitioner, either a psychiatrist or clinical psychologist, in accordance with the determination.
Mr Wittig-Goss was of the opinion that he had been treated by a psychologist in accordance with the mental health plan implemented in 2014. He had seen someone for counselling to deal with the many stressors in his life, including the loss of his partner, the loss of all his possessions in the floods, his constant pain, the death of his father and the discovery that his father was not his biological father. Mr Wittig-Goss provided the Tribunal with medical evidence from Dr Mathew, a psychiatrist, who diagnosed him with significant psychological problems. However, this evidence was outside the qualifying period.
The Tribunal finds that Mr Wittig-Goss’ mental health condition, described as Chronic Adjustment Disorder with depressed mood, in the background of anxious dependent personality traits, had not been fully diagnosed, treated, and stabilised during the qualifying period. The Tribunal considers this condition as having a moderate functional impact on his activities but as it had not been diagnosed by an appropriately qualified medical practitioner in the qualifying period it awards nil points. The Tribunal finds that it is difficult to distinguish whether Mr Wittig-Goss’ inability to perform activities related to self-care and independent living and his problems with concentration were caused by the pain from his other physiological conditions, or whether it was a result of his mental health condition.
DOES MR WITTIG-GOSS HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mr Wittig-Goss must not only satisfy the requirement that he had an impairment with a rating of 20 points or more under the Impairment Tables during the qualifying period; he must also demonstrate he had a continuing inability to work. Mr Wittig-Goss would be considered to have had 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. A person with a severe impairment is not required to satisfy the Respondent that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single table.
The Tribunal strictly applies the program of support requirement, because no power exists to dispense with the operation of s 94(2)(aa) of the Act, and it is irrelevant whether an applicant was aware of the requirement.
Mr Wittig-Goss has not been found to have had a severe impairment of 20 points under a single table and therefore he must have participated in a program of support for the requisite 18 months prior to his claim. Mr Wittig-Goss had actively participated in a program of support with employment service providers for a total of 553 days in the three years immediately prior to his claim for DSP. The Tribunal finds that he has therefore completed a program of support and satisfies s 94(3C) of the Act.
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. The Tribunal does not consider that an absolute preference should be expressed for either report but 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 reporting, the 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 Respondent contended that Mr Wittig-Goss did not have a continuing inability to work, relying upon the JCA report that found that he would be able to work 15 to 22 hours a week within two years with intervention.
The Tribunal concluded that Mr Wittig-Goss satisfied s 94(2) of the Act as he a continuing inability to work. In reaching this conclusion, the Tribunal notes the findings of the HPAU and the JCA, which determined that Mr Wittig-Goss should be assigned a temporary work capacity of 0 to 7 hours per week until he had been provided with appropriate treatment and disability employment services support. As both these interventions have been provided over the last two years and Mr Wittig-Goss presents with no marked improvement, the Tribunal accepts this as indicative that he has a continuing inability to work.
CONCLUSION
At the date of application, Mr Wittig-Goss was not qualified to receive the DSP as his impairments attracted 15 impairment points under the Impairment Tables: his spinal condition attracted five points under Table 4 - Spinal Function and his carpal tunnel syndrome attracted 10 points under Table 2 - Upper Limb Function. As Mr Wittig-Goss’ mental health condition had not been diagnosed by an appropriately qualified medical practitioner during the qualifying period, nil points could be awarded to this condition by the Tribunal. Whilst the Tribunal finds that Mr Wittig-Goss was not qualified to receive the DSP as he did not have 20 points under the Impairment Tables during the qualifying period, it nevertheless finds that he satisfies s 94(1)(c) of the Act in that he has a continuing inability to work.
The Tribunal is very sympathetic to Mr Wittig-Goss’ situation and encourages him to reapply for the DSP, particularly in light of the fact that his mental health condition has now been diagnosed by a psychiatrist.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

.............[sgd]...........................................................
Associate
Dated: 26 April 2019

Date(s) of hearing: 22 February 2019

Applicant: Self represented

Advocate for the Respondent: Ms A Bramley

Solicitors for the Respondent: Department of Human Services, Freedom of Information and Litigation Branch

[2019] AATA 765

26 April 2019

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Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Date(s) of hearing:	22 February 2019
Applicant:	Self represented
Advocate for the Respondent:	Ms A Bramley
Solicitors for the Respondent:	Department of Human Services, Freedom of Information and Litigation Branch