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

[2022] AATA 4424

Chaker and Secretary, Department of Social Services (Social services second review) [2022] AATA 4424 (22 December 2022)

Division:GENERAL DIVISION

File Number:          2019/2701

Re:Hanaa Chaker

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Mrs J C Kelly, Senior Member

Date:22 December 2022

Place:Sydney

The reviewable decision is affirmed.

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

Mrs J C Kelly, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – whether applicant has impairments that were fully diagnosed, treated and stabilised – whether impairment rating was 20 points or more under the impairment tables during the relevant period – reviewable decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

Cases

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

22 December 2022

Introduction

1. The issue to be decided in this proceeding is whether the Applicant, Ms Chaker, satisfied the qualification criteria for Disability Support Pension (DSP) at the date she claimed DSP, 6 October 2017, or within 13 weeks after that date (the qualification period). That period is from 6 October 2017 until 5 January 2018.

2. The decision being reviewed was made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 18 March 2019. AAT1 found that the Applicant’s:

   (a)mental health condition, shoulder condition and back condition were fully diagnosed but not fully treated and stabilised; and

   (b)hearing loss was not fully diagnosed, treated, and stabilised.[1]

   [1] T2, 3-9.

   The qualification criteria

3. Section 94(1) of the Social Security Act 1991 (the Act) sets out the criteria that have to be satisfied during the qualification period. The Applicant has to have had:

   (a)a physical, intellectual, or psychiatric impairment(s);

   (b)impairment(s) that were fully diagnosed, treated, and stabilised and attracted 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 Impairment Tables); and

   (c)a continuing inability to work (CITW).

   Background facts

4. The Applicant was struck by a motor vehicle when she was crossing the road on 15 May 2017 (the MVA). She claims that ever since the accident, her friend, Sam, comes to check on her every day, does her shopping, and cleans her house. He is like a carer but does not get paid.

5. She was 39 years old on 6 October 2017, when she made the application for DSP which is the subject of this proceeding. The application was rejected on 18 November 2017 because she did not have an impairment rating of 20 points or more under the Impairment Tables.

6. On 17 September 2018, an Authorised Review Officer affirmed the decision to reject the application.[2] The Applicant sought review by AAT1.

   [2] T69, 310.

7. The Applicant made another claim for DSP which was granted on 8 July 2020 with effect from 8 April 2019. 

8. The present claim is, in effect, a claim for DSP for the period from 6 October 2017 until 8 April 2019.

9. The claim that was accepted on 8 July 2020 was based on a Job Capacity Assessment (JCA) report dated 15 June 2020 which found that:

   (a)The Applicant’s mental health condition was fully diagnosed, treated, and stabilised and she had an impairment rating of 20 points under Table 5;

   (b)Her hearing loss was fully diagnosed, treated, and stabilised and she had an impairment rating of 5 points under Table 11;

   (c)Her work capacity within two years with intervention was 8-14 hours per week.[3]

   [3] ST9, 755-758.

   The Respondent’s position

10. The Secretary, Department of Social Services (the Respondent) accepts that the Applicant had impairments during the qualification period and satisfies subsection 94(1)(a) of the Act. The impairments are mental health condition, shoulder condition, back and neck condition, hearing loss, knee condition, and morbid obesity.

11. The Respondent contends that the impairments do not attract a rating of 20 points or more under the Impairment Tables and therefore the Applicant does not satisfy subsection 94(1)(b) of the Act.

    The evidence

12. I will consider each impairment separately. In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1], Gyles J succinctly stated the legal position where an applicant’s entitlement to DSP must be considered within the qualification period:

    Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.

13. In addition to the documents the Respondent provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth), the Applicant provided documents before and after the hearing. The Respondent had no objection to the latter documents being taken into account.[4] The Applicant also gave oral evidence.

    [4] Email from Elizabeth Ulrick, Senior Government Lawyer, to the Administrative Appeals Tribunal, 17 June 2022.

14. The documents the Applicant provided after the hearing relate to circumstances before the MVA or much later, and do not cast light on the Applicant’s conditions during the qualification period.

    Mental health condition

15. The Respondent accepts that the Applicant’s condition of adjustment disorder with depression and dysthymia was fully diagnosed during the qualification period but contends that the subsequent diagnosis of psychotic illness cannot be considered to be fully diagnosed during the qualification period. 

16. Dr Aiman Alsayed was the Applicant’s general practitioner (GP). 

17. The psychotic illness diagnosed by Dr Hecham Alhajali, consultant psychiatrist, in his report dated 13 April 2019, was not fully diagnosed during the qualification period.[5] Dr Ishrat Ali, consultant psychiatrist, the Applicant’s treating psychiatrist from January 2016, did not report any psychotic symptoms before, during the qualification period, or at all.  Dr Bertucen, consultant psychiatrist, stated in the report dated 5 March 2018, two months after the qualification period ended, that the Applicant had no presenting features of psychosis or hypomania. He diagnosed major depressive disorder and to a lesser extent chronic posttraumatic stress disorder in partial remission.[6]

    [5] T81, 339-340.

    [6] T62, 287-294.

18. The next question to decide is whether the Applicant’s condition of adjustment disorder with depression and dysthymia was fully treated and stabilised during the qualification period.

19. In his report dated 21 August 2017, Dr Ali referred to his previous letter, which mentioned the Applicant’s medication, and stated that her condition has not changed, she was not fit for work, and would not be for some time.[7] That comment suggests that he was expecting an improvement in the Applicant’s condition with appropriate treatment. He diagnosed adjustment disorder with depression and dysthymia which was currently managed with medication.[8]

    [7] T36, 188.

    [8] T7, 125-126.

20. On 3 November 2017, Dr Ali reported that he had seen the Applicant on a few occasions, the most recent being 24 October 2017. He changed her medication, told her to increase it in two to three weeks’ time, and he proposed later on, to try to push it up to 200mg ‘depending upon her tolerance’.[9]

    [9] T45, 236.

21. On 23 November 2017, Dr Alsayed referred the Applicant to Dr Younan ‘for opinion and management of PTSD’ after the MVA.[10]

    [10] T48, 245-246.

22. On 28 November 2017, Dr Alsayed referred the Applicant to Mr Mental, Mental Health Team ‘for opinion and management ? manic depression’.[11]

    [11] T49, 248-249

23. The qualification period ended on 5 January 2018.

24. On 11 January 2018, Dr Alsayed wrote to Dr Ali thanking him for managing the Applicant’s depression/depression disorder which got worse after the MVA and stating that she suffers from ‘memory problem and unable to study English for citizenship’. Dr Alsayed advised Dr Ali that he was developing a multidisciplinary Team Care Arrangement for the Applicant, which he described, and asked if Dr Ali was willing to be involved.[12]

    [12] T54, 258-260.

25. Mr Metry, psychologist, referred to a report of Dr Ali dated 11 May 2018, but it was not in evidence. Medicare records show that the Applicant saw Dr Ali twice after 3 November 2017 and after the qualification period had ended: on 15 January 2018 and 1 May 2018.[13] Dr Ali retired in 2018 according to the Applicant.

    [13] ST4, 615, 617.

26. On 12 January 2018, Dr Alsayed wrote ‘To whom it may concern’. In the history, he listed the conditions depression in 2015 and manic depression disorder, mania and panic attacks in 2017. He stated that the Applicant suffered from major depression disorder, had been referred to a psychiatrist who prescribed antidepressants and was seen by a psychologist for cognitive behavioural therapy (CBT). In Dr Alsayed’s opinion, the Applicant’s ‘medical problems’ has been fully diagnosed, treated and stabilised.[14]

    [14] T55, 261-264.

27. On 5 March 2018, Dr Bertucen, consultant psychiatrist, wrote that the Applicant would benefit from psychiatric pharmacotherapy over the next 12 months, review by a psychiatrist every four to eight weeks, and further weekly or fortnightly CBT with a psychologist for six sessions. On the whole, he considered that the Applicant’s symptoms had stabilised as she was receiving and had received appropriate psychiatric treatments.[15]

    [15] T62, 287-294.

28. Mr Kasim Abaie, psychologist, reported for the first time on 8 September 2018.[16] The report addressed the Applicant’s condition at that time. She demonstrated symptoms of severe depression and anxiety with psychotic episodes. She had attended for psychotherapy and counselling.  She required psychotherapy and support and was unfit for work ‘due to multiple health problems’. Other reports from Mr Abaie were dated 19 January 2019 and 30 March 2019. They do not cast light on her mental health condition during the qualification period. 

    [16] T68, 308-309.

29. Dr Monir Younan, consultant psychiatrist, saw the Applicant on 30 August 2018 and reported on 3 September 2018.[17] He commented that her physical symptoms seemed to be the main barrier for work ability and a diagnosis of dissociative disorder and/or effective disorder had to be considered but regretted that he was unable to help her. He did not want to be involved medico-legally and would not be able to support her with Centrelink. The Applicant returned with a friend to see Dr Younan on 11 October 2018. He observed in his report of 15 October 2018 that her appearance ‘this time’ gave him the impression that she had not been psychiatrically well for years, and her friend indicated that her condition had become worse after the MVA. Dr Younan repeated that he was unwilling to be involved in her condition.[18] Again, the reports of Dr Younan do not assist to assess the Applicant’s condition during the qualification period.

    [17] T67, 307.

    [18] T71, 316.

30. On 25 May 2020, Mr Metry, psychologist, reported that he had been treating the Applicant since 14 March 2017. He stated that he did not think the Applicant’s conditions were fully diagnosed, treated, and stabilised during the qualification period as the Applicant attended only eight sessions in 2017. He noted the Applicant was involved in a MVA on 15 May 2017, and her last session in 2017 was 15 August 2017.[19]

    [19] ST8, 733-741.

31. In his report dated 6 June 2017, Mr Metry wrote that the Applicant had received six psychological therapy sessions and he felt that she would benefit from continuing CBT. He requested Dr Alsayed to approve further sessions.[20] Based on his 25 May 2020 letter, the Applicant had only another two sessions with Mr Metry in 2017 after 6 June 2017. This was confirmed by his report dated 24 May 2022 that was provided after the hearing.

    [20] T23, 156.

32. The Medicare records show that the Applicant attended no psychologist from 6 June 2017 until April 2018. The Applicant said that she attended a lady psychologist called Zeina. A report of Zeinab Allaw, forensic psychologist, dated 12 May 2020 states that the Applicant had attended eight sessions.[21] The Medicare records do not show the attendances upon this psychologist. I infer that the sessions with Ms Allaw were after 16 December 2019.  

    [21] ST7, 722.

33. I give greatest weight to the opinions of the treating psychiatrist, Dr Ali, and Mr Metry, the treating psychologist, when determining whether the Applicant’s mental health condition was fully treated and stabilised during the qualification period. As of 3 November 2017, Dr Ali was adjusting the Applicant’s medication. He did not see her again until 15 January 2018. The report of that consultation and the report of 11 May 2018 were not in evidence. Mr Metry’s opinion that the Applicant’s condition was not fully diagnosed, treated, and stabilised during the qualification period is consistent with the fact that Dr Ali was calibrating her medication and his previous expressed opinion that suggested that she may improve in time in relation to her capacity to work.

34. I give Dr Alsayed’s opinion expressed in the report dated 12 January 2018 little weight. At that time, he had not had a follow up report from Dr Ali about the Applicant’s progress on the altered medication regime and he had referred her to two other mental health care providers in November for assessment and treatment. Doing that is not consistent with the view he expressed that her medical problems had been fully diagnosed, treated, and stabilised.

35. Dr Bertucen interviewed the Applicant once, two months after the end of the qualification period. 

36. I am not satisfied that the Applicant’s mental health condition was fully treated and stabilised during the qualification period.

    Shoulder condition 

37. The Respondent accepts that the Applicant’s right shoulder condition, an undisplaced fracture of the right humeral greater tuberosity caused by the MVA, was fully diagnosed during the qualification period but contended that it was not fully treated and stabilised.

38. There were several reports about the Applicant’s right shoulder condition from Mr Tamer Kahil, consultant orthopaedic surgeon.  

39. Mr Kahil reported to Dr Alsayed on 30 May 2017 that he had instructed the Applicant to continue immobilising her right shoulder in the immobiliser, but to take it off three times daily and do pendulous movements. He commented that she would need range of motion physiotherapy to avoid right shoulder stiffness.[22]

    [22] T19, 150.

40. On 13 June 2017 Mr Kahil reported that he had advised the Applicant to take off the immobiliser completely, start moving her right shoulder and she should have some physiotherapy for shoulder movement ‘otherwise she will end up with a frozen shoulder’.[23]

    [23] T26, 159.

41. Mr Kahil reported on 25 July 2017 that the Applicant was out of the sling and had stiffness in her right shoulder. She was doing pendulous movement. He ‘repeatedly’ advised her to have physiotherapy and to see him six weeks after she commenced physiotherapy sessions. He commented that if she did not have physiotherapy, she would end up with severe limited range of motion.[24]

    [24] T33, 181.

42. On 16 January 2018, after the end of the qualification period. Mr Kahil reported on the Applicant.  He encouraged her to continue doing whatever she was doing and to see him in three months.[25]

    [25] T56, 265.

43. Dr Bertucen, consultant psychiatrist, commented in his report of 5 March 2018 that the Applicant was avoiding medical interventions which might potentially benefit her – including physiotherapy.[26]  He also commented:

    Ms Chaker does not, however, appear to have had any medical management over the last five to six months aside from continuation of prescription analgesia by her GP. Consequently, she is suffering painful right shoulder and impaired range of movement and presented for the interview today in a large and elaborate sling’.[27]

    [26] T62, 291.

    [27] T62, 288.

44. Dr Bodel, orthopaedic surgeon wrote a report dated 20 March 2018. He referred to the Applicant’s injuries to her neck, the right shoulder, the lower part of the back, and to both knees. He wrote that the Applicant had not been able to afford to have any physiotherapy and commented:

    At this stage she has had nothing done. She needs referral for an orthopaedic opinion about her shoulder. She has had an MRI scan which does show significant pathology and she may benefit from an injection of local anaesthetic and hydrocortisone into the subacromial space.

    She definitely needs at least eight to ten visits to the physiotherapist and then referral to an exercise physiologist to try and improve function in the neck and the shoulder and the back. She may need surgery in the right shoulder although hopefully that can be avoided.[28]

    [28] T63, 295-302.

45. In Dr Bodel’s opinion, she had not stabilised, and he anticipated that she would make further progress over time.

46. On 3 April 2018, Mr Kahil reviewed the Applicant and wrote:

    Unfortunately, her right shoulder is quite stiff and I could not move it. I could not get good history from her whether she is doing her physiotherapy or not and therefore either poor compliance or poor management. Because I can not continue with this self negligence, I discharge her back to your capable hands. I suggest referring her to another orthopaedic surgeon to take over the the (sic) care.[29]

    [29] T64, 303

47. The Applicant’s Medicare Report records no consultation with a physiotherapist (item number 10960) from 28 March 2017 to 11 August 2019.[30]

    [30] ST4, 606-633.

48. Dr Alsayed referred the Applicant to Mrs Rania Wansa, exercise physiologist, on 20 November 2017 for opinion and management of neck, back and shoulder pain.[31] The Applicant did not attend until 17 January 2018.[32]

    [31] T47, 239-240.

    [32] ST4, 615.

49. The Applicant was under the care of Mr Kahil before, during and after, the qualification period. She did not engage in physiotherapy as Mr Kahil recommended. It was reasonable treatment which would be expected to result in substantial improvement in the Applicant’s functional capacity. That opinion is supported by Dr Bodel in his report provided after the end of the qualification period. The Applicant’s shoulder condition cannot be considered to have been fully treated and stabilised during the qualification period.

50. The Applicant said that she could not afford to have physiotherapy during this period and also talked about insurance issues. I infer that there was confusion at the time about her entitlement to have treatment funded by Medicare because she was pursuing a civil claim for the MVA, and the insurer had not accepted liability. However, whatever the reason might be, it does not change the relevant fact that she had not had reasonable treatment.

    Back and neck condition

51. The Respondent accepts that the Applicant’s back and neck conditions were fully diagnosed during the qualification period but contended that they were not fully treated and stabilised. Were they fully treated and stabilised?

52. On 6 July 2017, Dr Alsayed referred the Applicant to Dr Akhter, rehabilitation medicine specialist, noting that the Applicant’s neck and back pain got worse following the MVA.[33] In undated reports, Dr Akhter reported the MVA aggravated the Applicant’s lower back pain and caused the Applicant to develop neck pain.[34] 

    [33] T30, 165-166.

    [34] T4, 102-104.

53. On 12 January 2018, after the qualification period, Dr Alsayed reported that the Applicant saw Dr Akhter for ongoing treatment and rehabilitation, and she had been referred to a physiotherapist for further management and evaluation and was still receiving remedial therapy and pain management to restore as much of her lumbar spine functions (emphasis added). He also expressed the opinion that the condition began many years ago and was fully treated and stabilised with no further improvement expected.[35] With respect to Dr Alsayed, the two statements are contradictory.

    [35] T55, 261-264.

1. In a report dated 12 February 2018, Dr Akhter considered a number of conditions and expressed the opinion that the Applicant was not fit to work, inter alia, because of the language barrier, which is not relevant to a DSP application which she was supporting.[36]

   [36] T59, 274.

2. Dr Alsayed reported that the Applicant was advised about physiotherapy for the neck pain she suffered.[37] He also referred the Applicant to Mrs Rania Wansa on 20 November 2017 for opinion and management of neck, back and shoulder pain. The Applicant did not attend until 17 January 2018.

   [37] T55, 263.

3. Dr Bertucen, consultant psychologist, commented in his report of 5 March 2018 that the Applicant was avoiding medical interventions which might potentially benefit her – including physiotherapy. The correctness of this opinion is supported by the fact that on 20 November 2017, Dr Alsayed referred the Applicant to Mr Nadeem Sheikh for ‘opinion and management neck, back and shoulder pain post a car accident’[38], however there is no record in the Medicare Report of the Applicant attending Mr Sheikh.

   [38] T47, 241-242.

4. On 20 March 2018, Dr Bodel wrote the following.[39] The Applicant reported previous thoracolumbar and lumbosacral pain for which she had some medication, but it was not a major concern. He noted that an MRI scan of the lumbosacral spine showed no major abnormality. She had not been able to afford physiotherapy ‘at this stage’. In his opinion, she needed at least 8-10 visits to a physiotherapist and then referral to an exercise physiologist to try and improve the function of her neck, shoulder and back. She had had minimal treatment, the condition had not stabilised, and she would make further progress over time.

   [39] T63, 295-302.

5. The Applicant’s Medicare Report records no consultations with a physiotherapist (item number 10960) from 28 March 2017 to 11 August 2019.[40]

   [40] ST4. 606-633.

6. Both Dr Alsayed and Dr Bodel recommended physiotherapy to treat the Applicant’s neck and back condition. She did not follow Dr Alsayed’s recommendation until about 19 months after the end of the qualification period. These conditions were not fully treated and stabilised during the qualification period.

   Hearing loss

7. The Respondent accepted that the Applicant’s hearing loss was fully diagnosed during the qualification period but contended that it was not fully treated and stabilised.

8. Dr Alsayed referred the Applicant to a hearing clinic on 2 November 2017 for opinion and management of hearing problem started post a car accident.[41]

   [41] T44, 234-235.

9. On 5 December 2017, Audi Hearing Clinic reported that the Pure Tone Audiogram showed a flat profound sensorineural hearing loss in the right ear and a sloping mild to moderate mixed hearing loss in the left ear. The recommendation was further investigation of hearing loss after clearance of wax from the left ear.[42]

   [42] T50, 250.

10. The Applicant reported to Dr Bertucen, consultant psychiatrist, that she suffered a temporary loss of hearing in her right ear at the time of the MVA.[43]

    [43] T62, 288.

11. On 14 May 2018, Dr William Mooney, reported that the Applicant had a ‘dead ear’ following the MVA.[44] The prognosis was to look after her other ear because the ‘dead ear’ was not ‘resuscitatable’. He thought that ‘perhaps’ hearing aids may be in order in the left ear. The Medical Council of New South Wales has imposed numerous conditions on Dr Mooney’s registration as a medical practitioner.[45]

    [44] T65, 304.

    [45] ST11, 785.

12. On 8 November 2018, Dr Howison reported that his prognosis of the Applicant’s hearing loss would depend on a firm diagnosis because, in his opinion, it was not a result of the accident and there were no requirements for treatment until a full diagnosis had been made.[46]

    [46] T72, 317-323.

13. I give greater weight to the opinion of Dr Howison than to the opinion of Dr Mooney given the conditions on Dr Mooney’s registration. I accept Dr Howison’s opinion and find that the hearing loss had not been fully diagnosed, treated, or stabilised during the qualification period. 

    Knee condition

14. The Respondent accepted that the Applicant’s ‘knee condition’ was fully diagnosed during the qualification period but contended that it was not fully treated and stabilised. It is not clear on what basis the concession was made that the knee condition was fully diagnosed.

15. Dr Alsayed signed letters addressed ‘To whom It May Concern’ dated 3 January 2018 and 11 January 2018 which listed conditions from which the Applicant suffered from 2013 and her current medications.[47] In the letters he expressed the opinion that the Applicant suffered from the listed conditions and ‘is totally and permanently unfit for work’ and ‘is unfit for work’ respectively. He did not refer to a knee condition in either letter.

    [47] T53-54, 254-256.

16. Dr Alsayed wrote a more detailed letter on 12 January 2018 in which he included that the Applicant suffered from knee pain with stiffness and limited ROM (range of movement).[48] Dr Alsayed wrote that she was referred for imaging and to Dr Maniam, orthopaedic surgeon but it is not clear whether those referrals were with respect to her knees or other orthopaedic conditions. In any event, the Medicare Report included no record of consultation with Dr Maniam.[49] Dr Alsayed also commented that exercise was the main treatment.

    [48] T55, 261-263.

    [49] ST4, 596-636.

17. While he expressed the opinion that many of her conditions were fully diagnosed, treated, and stabilised, he did not do so with respect to the knee condition. There was no specialist opinion about that condition. 

18. I am not satisfied that the Applicant’s knee condition was fully diagnosed, treated, or stabilised during the qualification period.

    Morbid obesity

19. In his numerous referrals in November 2017, Dr Alsayed reported that the Applicant’s history included ‘Obesity - Morbid 2015’ and ‘overweight 3 June 2016’, which suggests that the Applicant lost weight between 2015 and 2016.[50] 

    [50] T48, 243.

20. In the Team Care Arrangements Review on 2 June 2017 Dr Alsayed listed ‘Diets (sic) control’ as a goal which had been met and ‘R/F Dietitian’ under the heading ‘Further actions required?’.[51]

    [51] T22, 154-155.

21. In the Team Care Arrangements document dated 7 July 2017, Dr Alsayed repeated the history set out in paragraph 72, and under the heading ‘Referral’ listed various practitioners, including “Mrs Arwa Abdelfattah Deitain’, which I infer was a typographical error for dietitian. A table, relevantly included the following[52]:

    [52] T32, 177-180.

Goal – changes to be achieved	Required treatments and services including patient actions	Specific arrangements for treatments/services (when, who, and contact details)
Maintain healthy diet and optimum weight range (including lifestyle aspects of lipids and blood pressure)	Maintain healthy nutrition and weight control	Dr Aiman Alsayed Dietitian Other allied health educator

1. The Medicare Report records no consultation with a dietitian during the qualification period. The Applicant agreed that the first such consultation was on 27 May 2019.[53] The dietitian was Miss Arwa Abdelfattah.

   [53] ST4, 631.

2. There were a number of other references in 2019 to active treatment for the Applicant’s weight control. The Applicant talked about the side effects of an injection in 2019. She recently joined a healthcare fund for gastric band surgery.

3. On 1 May 2019, Dr Alsayed reported that the Applicant was prescribed Duromine (phentermine) from 18 April 2019 for her morbid obesity.[54]

   [54] ST1, 529-533.

4. On 12 September 2019, Dr Tabet, endocrinologist, reported that the Applicant had stopped taking Saxenda despite having good weight loss as a result of taking it.[55] Her weight had come down to 131 kg. He expressed the opinion that she was an ideal candidate for bariatric surgery and reported that he had discussed that option with the Applicant.

   [55] T85, 359.

5. On 12 March 2020, Dr Tabet reported that the Applicant attended the weight loss program at RPA (Royal Prince Alfred) to which he had referred her and he encouraged her to remain engaged in that program. Her weight had increased by 1kg.[56]

   [56] ST7, 727-728.

6. I am not satisfied that the Applicant had been diagnosed with morbid obesity within the qualification period. She certainly was not fully treated and stabilised during that period.

   Eye condition

7. The Applicant said that her cross-examiner looked very blurry and she was often in tears. She said that she had seen someone after the MVA who checked her eyes and found no cause for any problem. She was told at the hospital that it was related to the stress of the MVA. She saw her brother’s wife who is a doctor in Lebanon, who said there was nothing wrong with her eyes. She saw an eye specialist on her return who said the same thing.  She did not have the report. She went to the Sydney Eye Hospital just before she was granted DSP, before COVID-19. Dr Alsayed referred her to a Chinese eye specialist who also found nothing wrong but said she needed an operation, which is inconsistent. The Applicant’s evidence is that there has been no medical diagnosis of an eye condition. There is no medical evidence that she had an eye condition during the qualification period.

   Other evidence

8. Before concluding, it is appropriate to address a number of reports from Dr Alsayed dated during and shortly after, the qualification period: 3 January 2018[57], 11 January 2018[58], 12 January 2018[59], 22 January 2018[60] and 1 February 2018[61]. The first two may have been prepared for a purpose other than to support the DSP application. The latter three seem to be directed to whether conditions have been fully diagnosed, treated, and stabilised. The reports do not address impairment ratings under the Impairment Tables, or other relevant evidence which I have detailed in the above consideration. They were inconsistent with other evidence, and include conditions not specifically listed or otherwise corroborated at the time, for example a knee condition, and diabetes mellitus. The reports were not persuasive.

   [57] T53, 254-255.

   [58] T54, 256-257.

   [59] T55, 261-264.

   [60] T57, 266-269.

   [61] T58, 270-273.

   Overall Impairment Rating

9. An impairment rating can only be assigned under the Impairment Tables if the condition is permanent.[62] Three of the four criteria that must be satisfied under the Impairment Tables for a condition to be permanent are that the condition has been fully diagnosed by an appropriately qualified medical practitioner and has been fully treated and fully stabilised.[63] As none of Applicant’s conditions satisfy the criteria to be permanent during the qualification period, no impairment points can be assigned to them and therefore, the impairments arising from the Applicant’s conditions as at the qualification period warrant a total impairment rating of nil points. The Applicant’s impairment does not satisfy section 94(1)(b) of the Act.

   [62] Social Secuity (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, paragraph 6(3)(a).

   [63] Social Secuity (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, paragraph 6(4)(a), (b) and (c).

   Decision

10. For the above reasons, the reviewable decision is affirmed.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 22 December 2022

Date of hearing:	1 April 2022
Date final submissions received:	16 June 2022
Applicant:	In person
Solicitor for the Respondent:	Ms E Ulrick, Services Australia