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

This matter concerned an appeal by Mr Bagorski against a decision by the Secretary of the Department of Social Services regarding his eligibility for a disability support pension. The core of the dispute revolved around whether Mr Bagorski's impairments attracted a rating of 20 or more points under the relevant Impairment Tables, as required by section 94(1)(b) of the Social Security Act 1991 (Cth). The Administrative Appeals Tribunal, specifically Member D K Grigg, was tasked with reviewing the Secretary's decision.

The legal issues before the Tribunal were twofold: firstly, whether Mr Bagorski's physical impairment, arising from migraine headaches, met the threshold for an impairment under section 94(1)(a) of the Act, which the Respondent conceded. Secondly, and crucially, the Tribunal had to determine if this impairment attracted an Impairment Rating of 20 or more points under section 94(1)(b). This required an assessment of whether the condition causing the impairment was "permanent" and whether the resulting impairment was likely to persist for more than two years, as defined by the Impairment Tables Determination.

The Tribunal's reasoning focused on the criteria for assessing "permanence" and "impairment rating" as stipulated in the Determination. For an impairment to attract a rating, the underlying condition must be fully diagnosed, fully treated, fully stabilised, and likely to persist for over two years. The Tribunal outlined the factors to be considered in determining if a condition has been fully diagnosed and treated, including corroborating evidence, the nature of treatment undertaken, and any planned future treatment. Furthermore, the Tribunal detailed the conditions under which a condition is considered "fully stabilised," either through reasonable treatment that is unlikely to yield significant functional improvement for work within two years, or where no reasonable treatment is undertaken but significant functional improvement is not expected.