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

Athurugiriya and Secretary, Department of Social Services (Social services second review) [2018] AATA 1458 (31 May 2018)
Division:GENERAL DIVISION
File Number: 2017/7436
Re:Sanjee Athurugiriya
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:31 May 2018
Place:Brisbane

The Tribunal affirms the decision under review.
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Catchwords
SOCIAL SECURITY – disability support pension – whether impairments permanent –– decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
31 May 2018
INTRODUCTION AND CLAIMS HISTORY

On 21 October 2016 Ms Athurugiriya lodged a claim for Disability Support Pension (“DSP”) listing her medical conditions as:[1]
·Degeneration of spine;
·Lumbosacral disc syndrome;
·Plantar fasciitis;
·Anxiety;
[1] Exhibit 1, T Documents, T 27, page 167, DSP Claim of Ms Athurugiriya dated 21 October 2016.
Ms Athurugiriya indicated in her claim form that due to her conditions she had difficulty with mobility and interactions and was currently treating her conditions with physiotherapy and counselling.[2]
[2] Exhibit 1, T Documents, T 27, pages 167 – 168, DSP Claim of Ms Athurugiriya dated 21 October 2016.
A Job Capacity Assessment (“JCA”) was conducted face-to-face with Ms Athurugiriya by a registered psychologist and registered nurse on 15 November 2016. The JCA found that Ms Athurugiriya’s:[3]
(a)spinal condition was fully diagnosed but not fully treated and stabilised;
(b)plantar fasciitis condition was fully diagnosed, fully treated and fully stabilised but attracted a zero point rating as it was not clear whether or not Ms Athurugiriya’s limitations with walking, sitting or standing were related to the plantar fasciitis condition or the spinal condition; and
(c)anxiety condition was not fully diagnosed, fully treated or fully stabilised.
[3] Exhibit 1, T Documents, T 30, pages 174 – 182, JCA report dated 28 November 2016.
As a result of the JCA report, the Department of Human Services (“Centrelink”) rejected Ms Athurugiriya’s claim for DSP because she did not have permanent impairments with a total Impairment Rating of 20 points or more.[4]
[4] Exhibit 1, T Documents, T 31, pages 183 – 184, Rejection of claim for DSP dated four May 2017.
Claim History
Ms Athurugiriya sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
[5] Exhibit 1, T Documents, T 36, pages 203 – 212, Decision of ARO and notes dated eight September 2017.
Ms Athurugiriya’s medical conditions were not considered permanent, as defined in the Social Security Act 1991 (Cth) (the “Act”), and did not attract an Impairment rating of 20 points or more.[5]
Ms Athurugiriya then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejectedMs Athurugiriya’s claim and affirmed the ARO’s decision on 17 November 2017.[6]
[6] Exhibit 1, T Documents, T 2, pages 3-6, SSCSD’s Decision and Reasons for Decision dated 17 November 2017.
Ms Athurugiriya has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1-2, Application for Review of Decision dated 11 December 2017.
ISSUES FOR DETERMINATION
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Ms Athurugiriya must have a physical, intellectual or psychiatric impairment;
(b)Ms Athurugiriya’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[8] and
(c)Ms Athurugiriya must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Athurugiriya meets the Section 94 Requirements, is the date the claim for DSP was lodged (in this instance, 21 October 2016), unless

Ms Athurugiriya becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[9] Therefore, to qualify for DSP Ms Athurugiriya must have met the Section 94 Requirements between 21 October 2016 and 20 January 2017 (“Qualification Period”).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Athurugiriya’s impairments after the Qualification Period can be considered if it “cast[s] light on” the functional impact of the impairments as at the Qualification Period.[10]
DID MS ATHURUGIRIYA HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “[I]mpairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”, and “condition” as “a medical condition”.[11]
Ms Athurugiriya’s Medical Conditions
[11] Determination, s 3.
Spinal Condition
In March 2015 Dr Doan, General Practitioner, reported that Ms Athurugiriya had lower back pain and mild scoliosis which was expected to impact on her ability to function for more than 24 months.[12]
[12] Exhibit 1, T Documents, T 12, pages 70 – 80, Medical report of Dr Doan dated 19 March 2015.
Dr Borja-Erece, General Practitioner, provided a medical certificate on

21 October 2016 which was lodged with Ms Athurugiriya’s DSP claim. Dr Borja-Erece reported that:[13]
(a)Ms Athurugiriya had spinal degeneration, lumbosacral disc syndrome and plantar fasciitis which was permanent and likely to affect Ms Athurugiriya’s capacity to work for more than 24 months;
(b)as a result of her conditions Ms Athurugiriya had back pain, feet pain, limited movement and range of motion of her back and difficulty weight bearing; and
(c)the treatment for her conditions has included cortisone injections, physiotherapy, and medication
[13] Exhibit 1, T Documents, T 28, page 172, Medical certificate of Dr Borja-Erece dated 21 October 2016.
In September 2015 Ms Athurugiriya had a CT scan and x-ray of her lumbosacral and lumbar spine which indicated:[14]
(a)some exaggeration of the lumbar lordosis and mild spondylotic change at L3/4 and L4/5; and
(b)that there was no disc herniation, no spinal stenosis and no nerve root impingement.
[14] Exhibit 1, T Documents, T 21, pages 129 – 130, X-ray and CT report dated 7 September 2015.
In November 2015 Dr Borja-Erece reported that Ms Athurugiriya’s lower back pain was a secondary condition and was causing her pain and limiting her mobility.[15]
[15] Exhibit 1, T Documents, T 23, page 137, Medical certificate of Dr Borja-Erece dated 9 November 2015.
In February and June 2016 Dr Sumanasekera, General Practitioner, reported that:[16]
(a)Ms Athurugiriya had lower back pain which was a temporary exacerbation of a permanent condition;
(b)her back condition was causing her lower back pain, which was radiating to both her legs;
(c)she was treating the condition with physiotherapy, and orthopaedic review was planned; and
(d)it was likely to impact on her capacity to work for the next 13 – 24 months.
[16] Exhibit 1, T Documents, T 24, page 138, Medical certificate of Dr Sumanasekera dated 9 February 2016; T 25,
page 139, Medical certificate of Dr Sumanasekera dated 27 June 2016.
Ms Athurugiriya was seen at the orthopaedic physiotherapy screening clinic on

16 January 2018, as a result of an orthopaedic referral from Dr Borja-Erece.[17] The orthopaedic physiotherapy screening clinic recommended that Ms Athurugiriya would benefit from a referral to physiotherapy and a dietician and that she would be reviewed in four – five months’ time.[18]
[17] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 20 April 2018, Annexure B, Report of Ms
Elwell dated 17 January 2018.
[18] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 20 April 2018, Annexure B, Report of Ms
Elwell dated 17 January 2018.
Plantar Fasciitis
In December 2014 Ms Athurugiriya had plantar fasciitis which was described in a medical certificate as temporary. The planned treatment at that time was investigation, Voltaren and cortisone injections.[19]
[19] Exhibit 1, T Documents, T 9, page 67, Medical certificate dated 9 December 2014; T10, page 68, Ultrasound
report dated 15 December 2014; T 11, page 69, Ultrasound report re-guided injection dated 30 December 2014
In March 2015, Dr Doan reported that Ms Athurugiriya had plantar fasciitis in her left foot which she was treating with anti-inflammatory medication, namely, Voltaren, that she had a cortisone injection and that she had planned podiatry treatment. Dr Doan noted that Ms Athurugiriya had pain on the sole of her foot all the time, swelling of the foot and had difficulty weight bearing, standing and walking. In Dr Doan’s opinion Ms Athurugiriya’s plantar fasciitis was likely to impact on her ability to function for 3 – 12 months and the effect of the condition was uncertain.[20]
[20] Exhibit 1, T Documents, T 12, pages 76 – 78, Medical report of Dr Doan dated 19 March 2015.
In April 2015 Ms Athurugiriya had an ultrasound guided injection.[21]
[21] Exhibit 1, T Documents, T 16, page 117, Ultrasound report dated 27 April 2015.
In June 2015 Dr Borja-Erece reported that Ms Athurugiriya’s plantar fasciitis was expected to impact on Ms Athurugiriya’s capacity to work or study for an uncertain period of time, was causing pain and impacting on her ability to stand for long periods.[22]
[22] Exhibit 1, T Documents, T 18, page 119, Medical certificate of Dr Borja-Erece dated 18 June 2015.
In September 2015 Ms Athurugiriya had an ultrasound and x-ray of her left foot which suggested that she may have fasciitis and that there was some mild osteoarthritic changes.[23]
[23] Exhibit 1, T Documents, T 21, pages 129 - 130, Ultrasound report dated 7 September 2015.
In November 2015 Dr Borja-Erece reported that:[24]
(a)Ms Athurugiriya’s plantar fasciitis was her primary condition and was expected to impact on Ms Athurugiriya’s capacity to work or study for 13 – 24 months;
(b)the plantar fasciitis was limiting her mobility and the pain was such that she could not walk when it was severe; and
(c)she was treating the condition with cortisone injections, physiotherapy, ultrasound and x-ray reviews and massage.
[24] Exhibit 1, T Documents, T 23, page 137, Medical certificate of Dr Borja-Erece dated 9 November 2015.
In February 2016, Dr Sumanasekera reported that Ms Athurugiriya had plantar fasciitis in her right foot which was temporary and likely to impact her for the next 3 – 12 months.[25]
[25] Exhibit 1, T Documents, T 24, page 138, Medical certificate of Dr Sumanasekera dated 9 February 2016.
Anxiety condition
Dr Borja-Erece reported on 21 October 2016, that Ms Athurugiriya had anxiety which was causing her difficulty with concentration and interacting with other people, and that she was treating the condition with counselling.[26]
[26] Exhibit 1, T Documents, T 28, page 172, Medical certificate of Dr Borja-Erece dated 21 October 2016.
Dr Borja-Erece reported in June 2017, that Ms Athurugiriya’s primary condition was depression and anxiety which was expected to impact on her capacity to work or study for an uncertain period of time and was causing her to suffer from low mood, low concentration and worry, and she was treating the condition with treatment and counselling with a psychologist.[27]
[27] Exhibit 1, T Documents, T 32, page 185, Medical certificate of Dr Borja-Erece dated 12 June 2017.
In July 2017 Mr Gerhardt, Clinical Psychologist, reported that Ms Athurugiriya:[28]
(a)had attended six sessions with him to date;
(b)generally had extremely severe depression, anxiety and stress (based on various psychological scales and tests);
(c)meets the DSM-5 criteria for an adjustment disorder with mixed anxiety and depression in the presence of persistent pain; and
(d)will have some proven benefits from engaging in ongoing therapy, although significant functional improvement is unlikely to occur.
[28] Exhibit 1, T Documents, T 33, pages 186 – 192, Report of Mr Gerhardt dated 25 July 2017.
In November 2017, Ms Athurugiriya presented at the Ipswich Hospital with symptoms of obsessive-compulsive disorder and was prescribed medication (that would require review in 6 weeks) and advised to continue psychology sessions.[29]
[29] Exhibit 1, T Documents, T 38, pages 215 – 220, mental health services transfer of care report dated 7 November
2017.
In December 2017 Mr Gerhardt reported that Ms Athurugiriya:[30]
(a)had attended 10 sessions to date;
(b)generally had extremely severe depression, anxiety and stress (based on various psychological scales and tests);
(c)meets the DSM-5 criteria for an adjustment disorder with mixed anxiety and depression in the presence of persistent pain; and
(d)will have some proven benefits from engaging in ongoing therapy, although significant improvement is unlikely to occur.
[30] Exhibit 1, T Documents, T 39, pages 221 – 227, report of Mr Gerhardt dated 18 December 2017.
Conclusion on Impairments
The Secretary accepts that Ms Athurugiriya suffers from impairments for the purposes of section 94(1)(a) at the Qualification Period.[31]
[31] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 20 April 2018, para 32.
Considering the medical evidence, the Tribunal finds that during the Qualification Period Ms Athurugiriya suffered from a Spinal Impairment, a Mental Health Impairment and Plantar Fasciitis Impairment, for the purposes of the Act, and that the requirement in section 94(1)(a) of the Act has been met.
DOES MS ATHURUGIRIYA’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[32] They are function based[33] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[34]
[32] Determination, ss 4(2) and 5(2)(a).
[33] Determination, ss 5(2)(b) and (c).
[34] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[35]
(a)Ms Athurugiriya’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[35] Determination, see s 6(3).
Ms Athurugiriya’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[36]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(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.
[36] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[37] the following must be considered:[38]
(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.
[37] For the purposes of ss 6(4)(a) and (b) of the Determination.
[38] Determination, see s 6(5).
A condition is fully stabilised[39] if:[40]
(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[[41]; or
(ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[39] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[40] Determination, see s 6(6).
[41]         For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Impairment Tables, Ms Athurugiriya’ medical history in relation to the condition causing the Impairments, must first be considered.[42]
[42] Determination, see s 6(2).
Is Ms Athurugiriya’s Spinal Impairment Permanent?
The Tribunal finds that Ms Athurugiriya’s Spinal Impairment is fully diagnosed, but was not fully treated and stabilised during the Qualification Period, because she had not been fully reviewed by an orthopaedic specialist and had not commenced recommended medication and physiotherapy treatment until after the Qualification Period. Ms Athurugiriya told the Tribunal that she was planning on seeing the orthopaedic specialist again very soon.
Because the Spinal Impairment was not fully treated during the Qualification Period, no Impairment Rating can be assigned.
It appears from the evidence that Ms Athurugiriya’s Spinal Impairment may have worsened since the Qualification Period. It is open to Ms Athurugiriya to lodge a fresh claim for DSP in the event that this condition could now be considered permanent.
Is Ms Athurugiriya’s Plantar Fasciitis Impairment Permanent?
The medical evidence supports a finding that Ms Athurugiriya’s Plantar Fasciitis Impairment was fully diagnosed during the Qualification Period. The issue is whether it was fully treated and fully stabilised.
The Secretary is prepared to accept that Ms Athurugiriya’s Plantar Fasciitis is permanent despite the limited evidence.[43] While Dr Doan referred to Ms Athurugiriya as having planned podiatry treatment, there is no evidence from the podiatrist.[44] However, it is clear that this condition has continued for some time and there is no evidence to indicate that there is any additional treatment for Ms Athurugiriya that will significantly improve her ability to function. In the circumstances, the Tribunal finds that Ms Athurugiriya’s Plantar Fasciitis Impairment is permanent and an Impairment Rating can be assigned.
[43] Exhibit 2, Secretary's Statement of Issues, Facts and Contentions dated 20 April 2018, para 42.
[44] Exhibit 1, T Documents, T 12, pages 76 – 78, Medical report of Dr Doan dated 19 March 2015.
Using the Impairment Tables

The level of impact of Ms Athurugiriya’s Plantar Fasciitis Impairment has to be assessed against the descriptors[45] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an Impairment Rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[46]
[45] Determination, see ss 3 and 5(3).
[46] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables, sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do, or what others do for the person.[47]
[47] Determination, see s 6(1).
Pursuant to the Determination:
(1)…in applying the Tables the following information must be taken into account:[48]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c) any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[48] Determination, see s 7.
the following information must not be taken into account in applying the Tables:[49]
(a)symptoms reported by Ms Athurugiriya in relation to her condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Athurugiriya’ local community.
[49] Determination, see s 8.
Which Tables are appropriate is determined by:[50]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[50] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[51]
[51] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned, unless all the descriptors for that level of impairment are satisfied.[52]
[52] Determination, see s 11(1)(c).
The descriptor applies if the person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[53]
[53] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[54]
[54] Determination, see s 11(5).
Evidence Identifying the Loss of Function at the Qualification Period
There is limited evidence of how this Impairment impacts on Ms Athurugiriya’s ability to function. The corroborating evidence that is available indicates that:
(a)On 18 June 2015, Dr Borja-Erece described Ms Athurugiriya’s symptoms as foot pain and inability to stand for long periods;[55]
(b)on 21 October 2016, Dr Borja-Erece described Ms Athurugiriya’s symptoms as feet pain and difficulty with weight bearing;[56] and
(c)on 9 February 2016, Dr Sumanasekera described Ms Athurugiriya’s symptoms as severe pain in the right heel, difficulty with weight bearing and limited mobility.[57]
[55]         Exhibit 1, T Documents, T 18, page 119, Medical certificate of Dr Borja-Erece dated 18 June 2015.
[56]         Exhibit 1, T Documents, T 28, page 172, Medical certificate of Dr Borja-Erece dated 21 October 2016.
[57]         Exhibit 1, T Documents, T 24, page 138, Medical certificate of Dr Sumanasekera dated 9 February 2016.
Ms Athurugiriya informed the JCA on 8 November 2016 that her walking was limited to
[58] Exhibit 1, T Documents, T 30, page 176, JCA Report dated 28 November 2016.
10 minutes, her standing was limited to 8 to 10 minutes and that she can walk around a shop.[58]
Relevant Impairment Table and Impairment Rating
The relevant Impairment Table is Table 3 of the Determination, which deals with lower limb function. The introduction to Table 3 provides:
·Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table lower limbs extend from the hips to the toes.
The Secretary submits that an appropriate Impairment Rating under Table 3 is 5 points.[59]
[59] Exhibit 2, Secretary's Statement of Issues, Facts and Contentions dated 20 April 2018, para 42.
In order to assign an Impairment Rating of 5 points, the evidence would need to show that there is a mild functional impact on activities involving the lower limbs.
The Descriptors for an Impairment Rating of 5 points are:
(1)       At least one of the following applies:
(a)       the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b)       the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)       the person has some difficulty climbing stairs; and
(2)       At least one of the following applies:
(a)       the person is unable to stand for more than 10 minutes;
(b)       the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
To assign an Impairment Rating of 10 points there would need to be corroborating evidence that:
(1) At least one of the following applies:
(d)[Ms Athurugiriya] is unable to walk far outside [her[ home and needs to drive or get other transport to local shops or community facilities; or
(e)[Ms Athurugiriya] is unable to use stairs or steps without assistance; or
(f)[Ms Athurugiriya] is unable to stand for more than 5 minutes; and
(2) [Ms Athurugiriya] is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
An Impairment Rating of 10 points 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.
There is no medical or corroborating evidence to suggest that Ms Athurugiriya meets the criteria for a moderate Impairment Rating of 10 points.
Based on the corroborating evidence that is available, the Tribunal finds that an Impairment Rating of 5 points is appropriate for Ms Athurugiriya’s Plantar Fasciitis Impairment under Table 3.
If Ms Athurugiriya’s Plantar Fasciitis Impairment has deteriorated since the Qualification Period, it is open to Ms Athurugiriya to lodge a fresh claim for DSP.
Are Ms Athurugiriya’s Mental Health Impairments Permanent?
Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a Mental Health Impairment must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
There is no evidence of any diagnosis having been made by a clinical psychologist or psychiatrist prior to or during the Qualification Period. However, Ms Athurugiriya was diagnosed by her general practitioner with anxiety and depression and these diagnoses were confirmed after the Qualification Period by a clinical psychologist. The OCD Impairment was not diagnosed until after the Qualification Period and therefore cannot be considered for the purposes of this DSP application.
Even if it was accepted that Ms Athurugiriya’s anxiety and depression were fully diagnosed, the conditions were not fully treated and fully stabilised during the Qualification Period. Ms Athurugiriya did not commence psychological counselling until after the Qualification Period and had not commenced trialling any medications to assist her impairments until November 2017.
As a result, no Impairment Rating can be assigned in relation to Ms Athurugiriya’s Mental Health Impairments.
It is open to Ms Athurugiriya to lodge a fresh claim for DSP in the event that these impairments can now be considered permanent.
WERE MS ATHURUGIRIYA’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act.
The Tribunal has found that the total Impairment Rating for Ms Athurugiriya’ permanent Impairments was 5 points. Therefore, Ms Athurugiriya did not satisfy section 94(1)(b) of the Act at the Qualification Period.
DID MS ATHURUGIRIYA HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
The Tribunal has concluded that Ms Athurugiriya’s permanent Impairments did not attract an Impairment Rating of 20 points or more under the Impairment Tables during the Qualification Period, therefore it is unnecessary to consider whether Ms Athurugiriya had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Ms Athurugiriya’s claim fails. Her permanent Impairments did not attract an Impairment Rating of 20 points or more under the Impairment Tables at the Qualification Period and as a result she did not qualify for DSP at the date of rejection.
The decision under review is affirmed.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..........................[Sgd]..............................................
Associate
Dated: 31 May 2018

Date of hearing: 10 May 2018

Applicant: By Telephone

Advocate for the Respondent: Donna Smith

Solicitors for the Respondent: Department of Human Services

[2018] AATA 1458

31 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Natural Justice

Date of hearing:	10 May 2018
Applicant:	By Telephone
Advocate for the Respondent:	Donna Smith
Solicitors for the Respondent:	Department of Human Services