Bunker and Secretary, Department of Social Services (Social services second review) - [2023] AATA 728

Bunker and Secretary, Department of Social Services (Social services second review) [2023] AATA 728 (11 April 2023)
Division:GENERAL DIVISION
File Number(s): 2020/8613
Re:Ms Sharon Bunker
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member B Cullen
Date:11 April 2023
Place:Brisbane

The Applicant’s claim fails because her impairments did not attract 20 or more points under the Impairment Tables, therefore, she did not qualify for DSP during the ‘Qualification Period’ as required under section 94(1)(b) of the Social Security Act 1991 (Cth).
The decision under review is affirmed.
.................................[SGD]......................................
Senior Member B Cullen

CATCHWORDS
SOCIAL SECURITY – whether applicant qualifies for disability support pension – whether conditions fully diagnosed, treated and stabilised during the qualification period – whether impairments were of 20 points or more under s 94(1)(b) – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
Department of Social Services, ‘Social Security Guide’, Guides to Social Policy Law (Guide, 3 April 2023) < FOR DECISION
Senior Member B Cullen
11 April 2023
Event history / Background / Facts:

On 1 May 2019, Ms Bunker (‘the Applicant’), lodged a claim for disability support pension (‘DSP’) with the Respondent, in respect of back pain and osteoarthritis, shoulder and arm pain, and left ankle pain.[1]
[1] Exhibit 1, T Documents, T36 at pages 151 – 181, ‘Claim for Disability Support Pension and Consent to Disclose Medical Information’; T3 at pages 5-11, ‘Decision of the Social Services & Child Support Division’.
On 12 June 2019, the Applicant’s DSP claim and file was assessed by a rehabilitation counsellor for the purposes of a DSP Medical Eligibility Assessment Recommendation. This assessment determined that a Job Capacity Assessment Report was required.[2]
[2] Exhibit 1, T37 at pages 182 – 183, ‘DSP Medical Eligibility Assessment Recommendation’.
On 5 August 2019, the Applicant underwent a face-to-face assessment with a rehabilitation counsellor for the purposes of a Job Capacity Assessment Report.[3] This report, dated 6 August 2019, determined that the Applicant’s “work capacities are 30+ hours per week, as the customer does not have any permanent, fully diagnosed, treated and stabilised medical conditions”.[4]
[3] Exhibit 1, T39 at pages 186 – 193, ‘Job Capacity Assessment Report’.
[4] Ibid at page 191.
On 13 August 2019, the Applicant’s claim for the DSP was rejected by Centrelink on the basis the Applicant did not have an impairment rating of 20 points or more.[5]
[5] Exhibit 1, T40, pages 194 - 195, ‘Rejection of your claim for Disability Support Pension’.
The Applicant then lodged further medical information with Services Australia (‘the Agency’), which was considered in a further DSP Medical Eligibility Assessment Recommendation undertaken by a psychologist. This assessment determined that the findings of Job Capacity Assessment conducted on 5 August 2019 were current and valid.[6]
[6] Exhibit 1, T42 at pages 198 - 199, ‘Disability Support Pension Medical Eligibility Assessment Recommendation’.
On 2 December 2019, the Applicant was informed that the Authorised Review Officer (‘ARO’)“… found [the] decision was correct….You do not have an impairment rating of 20 points”.[7]
[7] Exhibit 1, T47, pages 206 - 212, ‘Notice of Decision and Notes of Authorised Review Officer’.
The ARO’s key finding was that: “I have found your conditions of shoulder and upper arm disorder, spinal disorder and ankle disorder cannot be considered permanent”.[8]
[8] Ibid at page 208.
The ARO explained in relation to each condition:
Shoulder and upper arm disorder: “Based on the available evidence, I am satisfied that your condition is diagnosed. However, as you have surgical intervention planned which may improve your symptoms within the next 2 years, I cannot consider the condition to be fully treated and stabilised for the purposes of Disability Support Pension. As such, I am unable to assign an impairment rating for this condition.”[9]
Spinal disorder: “Based on the available evidence, I am satisfied that your condition is diagnosed. However, as you have future treatment options which may improve your symptoms within the next 2 years, I cannot consider the condition to be fully treated and stabilised for the purposes of Disability Support Pension. As such, I am unable to assign an impairment rating for this condition.”[10]
Lower leg disorder: “Based on the available evidence, I am satisfied that your condition is diagnosed. However, as you have surgical intervention planned which may improve your symptoms within the next 2 years, I cannot consider the condition to be fully treated and stabilised for the purposes of Disability Support Pension. As such, I am unable to assign an impairment rating for this condition.”[11]
[9] Ibid at page 209.
[10] Ibid.
[11] Ibid.
On 7 October 2020, the Applicant lodged an application for review of the decision of the Respondent dated 2 December 2019 to reject her claim for DSP, with the Tribunal. On 26 November 2020, the Tribunal (‘the AAT1’) affirmed the decision under review, finding that the Applicant’s back pain and osteoarthritis; shoulder pain and arm pain; and left ankle pain were not, “fully diagnosed, treated and stabilised.”[12]
[12] Exhibit 1, T3 at pages 4 - 11, ‘Decision of the Social Services & Child Support Division’.
On 27 December 2020, the Applicant requested a second review of the decision of the AAT1 dated 26 November 2020.[13] Following an Application by the Applicant made 14 June 2021, the Tribunal extended the time for the Applicant’s making of this application for review of the 26 November 2020 decision.[14]
[13] Exhibit 1, T2, pages 3 -4, ‘Application for Review’.
[14] Exhibit 1, T2 at page 3, Decision of the Tribunal, dated 30 June 2021, extending time for filing of the review.
Along with her review application, the Applicant lodged a written statement in response to Section 3 of the Tribunal’s application for review form, stating the following:
“I disagree with the decision from the AAT as I have constant pain 24/7 in my right and left arms and shoulders and I have chronic lower back pain due to osteoarthrists [sic] and my sciatic nerve is stuck between the 4^th and 5^th vertebrae I have this condition since 2015 and will never get any better.”[15]
[15] Exhibit 1, T1, page 2.
Decision under review
The decision under review is a decision of the Social Services & Child Support Division of the AAT1 dated 26 November 2020, which affirmed a decision of the Agency to reject the Applicant’s claim for the DSP lodged on 1 May 2019.[16]
[16] Exhibit 1, T3 at pages 4 – 11.
Issues:
Whether, at the date of claim of 1 May 2019, or within 13 weeks thereafter, the Applicant had a physical, intellectual or psychiatrist impairment(s) for the purpose of section 94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’); and
If so, whether the Applicant's condition(s) were fully diagnosed, fully treated and fully stabilised (‘FDTS’) and caused impairment(s) which attract an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) for the purpose of section 94(1)(b) of the Act; and
If so, whether the Applicant had a 'continuing inability to work' as defined in section 94(2) of the Act for the purpose of 94(1)(c) of the Act.[17]
Relevant Legislation:[18]
·Social Security Act 1991 (Cth).[19]
·Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011.[20]
·Social Security (Administration) Act 1999 (Cth).[21]
·Social Security (Active Participation for Disability Support Pension)
Determination 2014.[22]
·Social Security Guide.[23]
[17] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 1, [2].
[18] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 3, [13].
[19] Act No. 46 of 1991, C2023C00070, registered 30 March 2023.
[20] F2011L02716, registered 16 December 2011
[21] Act No. 191 of 1999, C2023C00074, registered 4 April 2023.
[22] F2015L00001, registered 2 January 2015.
[23] Department of Social Services, ‘Social Security Guide’, Guides to Social Policy Law (Guide, 3 April 2023) <>
The date for determining whether the Applicant meets the Section 94 Requirements is the date of her claim (1 May 2019), unless the Applicant becomes qualified within

13 weeks of lodging the claim, in which case, her start date is the day she becomes qualified.[24] Therefore, in order to qualify for DSP, the Applicant must have met the Section 94 Requirements between 1 May 2019 and 31 July 2019 (‘Qualification Period’).
[24] See ss 41 and 42, and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
When making a decision about whether the Applicant meets the Section 94 Requirements, the Tribunal can only consider medical evidence that relates to the functional impact of the Applicant’s impairments after the Qualification Period to the extent that it “may cast light on” the functional impact of the impairments within the Qualification Period.[25]
Did the applicant have a physical, intellectual or psychiatric impairment during the qualification period: section 94(1)(a)?
[25] 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; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment?
The Determination[26] contains the rules for applying the Impairment Tables and defines “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” to mean “a medical condition”.[27]
[26] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (‘Determination’).
[27] Determination, s 3, ‘Interpretation’.
Conclusion on Impairments
At the hearing, and in its Statement of Facts and Contentions, the Respondent accepted that the Applicant had back pain and osteoarthritis, an upper limb condition, and left ankle pain, which satisfied section 94(1)(a) of the Act during the Qualification Period.[28]
[28] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, page 7, [39].
Considering the above evidence, the Tribunal finds that during the Qualification Period, the Applicant had back pain and osteoarthritis, an upper limb condition, and left ankle pain which are impairments for the purposes of the Act. Therefore, the requirements in section 94(1)(a) of the Act have been met.
Do the applicant’s impairments attract an impairment rating of 20 or more points: section 94(1)(b) of the act?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in section 94(1)(b) of the Act.[29] They are function based,[30] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[31]
[29] Determination, ss 4(2) and 5(2)(a).
[30] Determination, s 5(2)(b) and (c).
[31] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[32]
·the condition causing that impairment is “permanent”; and
·the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.
[32] Determination, s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[33]
[33] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368 at [12].
The Applicant’s conditions can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[34]
·The condition has been fully diagnosed by an appropriately qualified medical practitioner;
·The condition has been fully treated;
·The condition has been fully stabilised; and
·The condition is more likely than not, in light of the available evidence, to persist for more than 2 years.
[34] Determination, 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”,[35] the following is to be considered:[36]
·Whether there is corroborating evidence for the condition;
·What treatment or rehabilitation has occurred in relation to the condition; and
·Whether treatment is continuing, or is planned, in the next 2 years.
[35] For the purposes of ss 6(4)(a) and (b) of the Determination.
[36] Determination, s 6(5).
A condition is “fully stabilised”[37] if:[38]
(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;[39] or
(ii)There is a medical or other compelling reason for the person not to undertake reasonable treatment.
[37] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[38] Determination, s 6(6).
[39] For “reasonable treatment”, see s 6(7) of the Determination.
In relation to the Applicant’s impairments, the Respondent’s position at hearing was that:
·None of the applicant’s impairments (back pain and osteoarthritis, an upper limb condition, and left ankle pain) were fully diagnosed, treated, and stabilised during the Qualification Period, and therefore should not be assigned an Impairment Rating using the Impairment Tables.
The Applicant’s Medical Conditions
The Tribunal must consider the Applicant’s medical history, and the evidence given by her at the Tribunal hearing, in order to make a decision about whether her back pain and osteoarthritis, upper limb condition, and left ankle pain were fully treated and stabilised.
The Respondent accepts that the Applicant’s impairments were fully diagnosed during the Qualification Period but asserts that they were not fully treated and stabilised.[40]
Back pain and osteoarthritis
[40] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, pages 7 to 11.
In relation to the Applicant’s back pain and osteoarthritis, the AAT1 Decision reflects the following:
The tribunal noted a chronic disease management plan, dated 31 December 2018, prepared by the current GP, Dr Khatun. The plan noted a history of osteoarthritis in the lower back demonstrated by a recent CT scan and proposed referrals to a physiotherapist and occupational therapist. Subsequent MCs issued by Dr Khatun identified back pain as a problem affecting Ms Bunker.[41]
[41] Exhibit 1, T3 at page 9, paragraph 34.
There is no evidence before the Tribunal capable of supporting a finding that the Applicant’s back pain and osteoarthritis condition was fully treated and stabilised during the Qualification Period.
In the hearing before this Tribunal, the Applicant also conceded that she had not proceeded with the chronic disease management recommendations as “COVID happened and nothing has – like nothing has been done since then.”[42]
[42] Transcript P-9 at [25] – [32].
Given the absence of supporting evidence and a clear indication from the Applicant that she has not proceeded with the chronic disease management recommendations, the Tribunal finds that the back pain and osteoarthritis condition was not fully treated and stabilised during the Qualification Period.
Upper limb condition
In relation to the Applicant’s upper limb condition, the AAT1 found that:
The tribunal noted the report of a JCA undertaken in August 2019. That report stated that Ms Bunker reported ongoing pain, restricted use of her right arm, but was independent in self-care and home duties. She advised that shoulder reconstruction was planned for November 2019.[43]
[43] Exhibit 1, T3 at page 10, paragraph 41.
The Applicant has filed some evidence of having engaged in physiotherapy for her shoulder condition during and after the qualification period.[44] The Respondent argues, and the Tribunal agrees, that the Applicant’s evidence demonstrates that her shoulder condition was not fully treated and stabilised during the Qualification Period, given that treatment was ongoing.
[44] Exhibit 4, Medical Reports lodged by the Applicant on 9 November 2021.
In the hearing, the Applicant told the Tribunal that this orthopaedic review happened after Covid, after March 2020.[45] On this basis, the Tribunal finds that the Applicant’s upper limb condition was not fully treated and stabilised during the Qualification Period (1 May 2019 to 31 July 2019).
Left ankle pain
[45] Transcript at P-11 at [1] – [13].
In relation to the Applicant’s left ankle pain, the AAT1 Decision reflects the following:
The Tribunal had minimal information about this problem and determined that, at the time of the claim, the problem of left ankle pain was not fully diagnosed, fully treated or fully stabilised. It warrants no impairment points.[46]
[46] Exhibit 1, T3 at page 11, paragraph 46.
The Respondent accepted at hearing that a 30 January 2019 ultrasound of the Applicant’s left ankle, by Dr Khaleel, diagnosed the Applicant with “Partial thickness tear of the anterior tibiofibular ligament and partial width full thickness tear of the anterior talofibular ligament with a posterior tibialis tendinopathy.”[47]
[47] Exhibit 1, T32 at page 140; Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions at page 12.
Consequently, the Respondent accepted that the Applicant’s left ankle injury was fully diagnosed. However, the Respondent asserts that the left ankle condition was not fully treated and stabilised during the Qualification Period, as per the 6 August 2019 Job Capacity Assessment Report: “Available medical evidence does not confirm that the claimant has engaged in all reasonable treatments (specialist consultation, surgical intervention and rehabilitation) and these treatments are likely to result in functional improvement, within the next 2 years.”[48]
[48] Exhibit 1, T39 at page 189.
A 19 September 2019 medical certificate from Dr Khatun indicates the treatment planned for the Applicant’s ankle condition was “physiotherapy with analgesics”[49]. There is no evidence before the Tribunal indicating that the Applicant has pursued this treatment. At the hearing, the Applicant conceded that the Pharmaceutical Benefits Document that was before the Tribunal revealed that she had only been prescribed prescription pain medication on one occasion, Tramadol on 31 December 2018.[50]
[49] Exhibit 1, T41 at page 197.
[50] Transcript P-12 to P-13.

Accordingly, as it is plain that the Applicant had not engaged in the proposed treatment of physiotherapy with analgesics for her left ankle pain either during the Qualification Period or following the Qualification Period.
The Tribunal considers that physiotherapy may have resulted in significant functional improvement of the Applicant’s left ankle pain condition.
For this reason, the Tribunal finds that the Applicant’s left ankle pain condition was not fully treated and stabilised in the Qualification Period.
Conclusion
Given the Tribunal’s findings, the Tribunal cannot assign impairment ratings to the Applicant’s conditions under the Impairment Tables.
The Tribunal appreciates that the relevance of the anchoring effect of the “Qualification Period” is not a factor that is always necessarily obvious to an Applicant. There is nothing precluding the Applicant from making a further application for DSP, based upon her current circumstances, in which case the assessment of her eligibility will be based on a different and more recent Qualification Period, depending on the date of lodgement of any future application by her.
Decision
The Applicant’s claim fails because her impairments did not attract 20 or more points under the Impairment Tables, therefore, she did not qualify for DSP during the ‘Qualification Period’ as required under section 94(1)(b) of the Act.
The decision under review is affirmed.

I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Cullen

......................................[SGD].................................
Associate
Dated: 11 April 2023

Date(s) of hearing: 6 June 2022

Applicant: In person

Solicitors for the Respondent: Ms T Wong, Services Australia

Date(s) of hearing:	6 June 2022
Applicant:	In person
Solicitors for the Respondent:	Ms T Wong, Services Australia