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

[2020] AATA 390

Chamberlain and Secretary, Department of Social Services (Social services second review) [2020] AATA 390 (4 March 2020)

Division:General Division

File Number:2019/2896          

:   ReGlenn Chamberlain

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:4 March 2020

Place:Adelaide

The decision under review is affirmed.

.................[sgnd].......................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - disability support pension – whether applicant’s medical conditions were fully diagnosed, fully treated and fully stabilised during the qualification period-whether an impairment rating of 20 points or more existed under the Impairment Tables– decision under review affirmed.

LEGISLATION

Social Security Act 1991(Cth)

Social Security (Administration) Act 1999

CASES

Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning v Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Yazdari v Secretary Department of Social Services [2014] AATA 34

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

4 March 2020

INTRODUCTION

1. Mr Chamberlain lodged a claim for the disability support pension (DSP) on 10 August 2018. Centrelink rejected the claim. Mr Chamberlain sought a review of that decision and a Centrelink authorised review officer (ARO) affirmed the decision to reject the claim DSP.

2. Mr Chamberlain applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for a review of Centrelink’s decision. His application did not succeed. On 10 May 2019 the AAT1 affirmed the decision under review.

3. Mr Chamberlain applied to this Tribunal for a review of the AAT1 decision.       

4. The hearing took place on 17 January 2020. Mr Chamberlain was self-represented and gave evidence. The Secretary was represented by Mr Visser. The Tribunal received in evidence as exhibits various medical and associated reports, Centrelink reports and documents.

   LEGISLATION AND ISSUES

5. Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment and if that impairment attracts a rating of 20 points or more under the Impairment Tables. The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). The assessment period in this case is 10 August 2018 to 9 November 2018

6. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”.

7. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

8. Accordingly, Mr Chamberlain will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the impairment tables and, finally, that he has a continuing inability to work.

9. Mr Chamberlain’s claim for DSP listed his disabilities and medical conditions as loss of function of the left hand, major depression and anxiety, “PTSD” and sleep problems due to an assault (home invasion).[1]

   [1] Ex1, T11/139.

10. The Secretary accepted that Mr Chamberlain has impairments and therefore satisfied s 94(1)(a) of the Act.

11. In the statement of facts and contentions, the Secretary contended that Mr Chamberlain’s upper limb condition was fully diagnosed, treated and stabilised which resulted in an impairment to his left arm with an impairment rating of 10 points under Impairment Table 2.

12. The Secretary contended that Mr Chamberlain’s mental health condition was not fully treated and fully stabilised in the assessment period and did not attract a rating of any impairment points.

13. With an overall impairment rating of 10 points, the Secretary contended that Mr Chamberlain did not satisfy s 94(1)(b) of the Act.

14. Accordingly the Secretary contended that Mr Chamberlain did not have a continuing inability to work and was not qualified for the DSP during the assessment period.

15. The main issue for determination is whether Ms Chamberlain’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work.

    CONSIDERATION

16. Decisions of the Tribunal such as Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (Bobera)[2] affirmed by the Federal Court in Gallacher v Secretary, Department of Social Services[3] indicate that the Tribunal must consider Mr Chamberlain’s qualification for DSP within the assessment period, that is the 13 week period from10 August 2018 to 9 November 2018.

    [2] [2012] AATA 922.

    [3] [2015] FCA 1123.

17. The way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions. For example, in Re Fanning and Secretary, Department of Social Services,[4] Deputy President Handley stated that:[5]

    “The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years”. While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.” (emphasis added)

    [4] [2014] AATA 447.

    [5] Ibid 33.

18. The applicable impairment rating, if any, for each of Mr Chamberlain’s conditions will be considered in turn by reference to the Impairment Tables.

    IMPAIRMENT TABLES

19. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

20. Section 6 of the Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.

21. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

22. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and, whether treatment is continuing or is planned in the next two years.

23. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

24. Consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an impairment rating.

    UPPER LIMB CONDITION

25. Mr Chamberlain, who is now 46 years old, was injured when he was attacked at home by intruders in 2013. His left hand and wrist were injured severely. He had surgery and subsequently wore a splint on the wrist. Later he was provided with a compression glove and allied health treatment included extensive physiotherapy and occupational health therapy.

26. Mr Chamberlain gave evidence about the impact of the damage to his left wrist. At home, his daily activities are affected. He has no grip strength in his left hand and has difficulty using it for fine, motor activities such as picking up a glass , a mug, a litre of milk, doing up buttons, tying shoelaces, or unscrewing a lid on a bottle. He said that if he attempts to move one of his fingers, they all move and his hand becomes a claw.

27. Mr Chamberlin is right hand dominant. His right hand and right arm are functional. He can drive a car, turn pages in the newspaper and use a mobile phone. However he has difficulty with any task that involves using two hands. He described his left arm and hand as restricted and non-operational. He can use his left arm as a support, for example, to pick up objects such as blankets or boxes which he can straddle on his left arm. He said that he is restricted in is ability to carry out housework and relies on support from his sister with laundry, bed making and cleaning. The difficulties with the left hand have existed for several years and they have not improved during the assessment period and its aftermath.

28. Mr Chamberlain’s general medical practitioner, Dr Kurlinkus, provided a report dated 3 May 2019 in which he described Mr Chamberlain’s left hand as non- functional. He wrote that Mr Chamberlain:[6]

    …has been left with a permanent hand deformity with paraesthesia and loss of function of the hand. It should be noted that he suffered 100% division of his ulnar and radial arteries, 100% division of his ulnar and median nerves, and 100% division of tendons to his index, middle and ring fingers. This was a severe hand and forearm injury. As a result he has severe difficulties in handling, moving and carrying objects… he has a fixed deformity of his hand.

    [6] Ex1, T19/ 293.

29. A Job Capacity Assessment (JCA) report dated 21 April 2016 noted symptoms at that time in this way:[7]

    … permanent claw deformity, paraesthesia and pain. He is only able to do limited things with his left hand, he is able to drive, but any other than coarse movement is not possible… He has only a small range of flexion of his finger joints and he has significant loss of extension of his finger joints. He is unable to grasp with this hand and he is unable to pick up any fine objects. He can hold something light in the hand by cradling the object against his body and holding underneath.

    [7] Ex1, T12/164.

30. The JCA report assessed the upper limb condition as fully diagnosed, treated and stabilised with a moderate functional impact. An Employment Services Assessment Report on 20 April 2018 re-iterated that this was a permeant condition that is fully diagnosed, treated and stabilised.[8]

    [8] Ex1, T12.

31. Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms. The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not sufficient.

32. The introduction to Impairment Table 2 defines upper limbs as extending from the shoulder to the fingers. It envisages an impairment which could include amputation or absence of whole or part of an upper limb.

33. In the assessment of a person’s functional capacity, the impairment tables require that the assessment is carried out on the basis of what a person can do. Ratings are assigned to determine the level of functional impact of impairment. For a moderate functional impact Impairment Table 2 states:

Points

Descriptors

10

There is a moderate functional impact on activities using hands or arms.

(1)      The 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.

1. For a severe functional impact Impairment Table 2 states:

Points

Descriptors

20

There is a severe functional impact on activities using hands or arms.

(1)      Most of the following apply to the person:

          (a)       the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional

          (b)       the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

          (c)       the person has difficulty using a computer keyboard despite appropriate adaptations;

          (d)       the person has severe difficulty using a pen or pencil;

          (e)       the person has severe difficulty turning the pages of a book without assistance;

1. The Tribunal must look globally at the person’s functional impairments in terms of their overall capacity to do tasks with both the affected and unaffected hands. It is not a correct application of Impairment Table 2 to consider the functional impairment affecting only one hand. In Baxter and Secretary, Department of Social Services, the Tribunal comprising Senior Member Stefaniak commented:[9]

   …the upper limbs extended from the shoulder to the fingers and basically if someone, for example, has complete use of one arm and no use of the other, the Tribunal has to look at what a person can actually do, even if it is necessarily just that one good arm; perhaps holding the useless arm just to keep things steady and such like. That is how the criteria work…

   [9] (2017) AATA 1544.

2. On consideration of all of the medical evidence, the JCA reports, and the evidence of Mr Chamberlain, the Tribunal considers that the descriptors for a moderate functional impact on activities using hands or arms reflect Mr Chamberlain’s impairment. A majority of the descriptors must apply. All of them in the moderate range, apart from 1(e), depict the difficulties which Mr Chamberlain has. The evidence does not support a conclusion that the majority of the descriptors for a severe functional impact are met.

3. The appropriate rating is 10 points under Impairment Table 2 regarding the upper limb condition.

   MENTAL HEALTH CONDITION

4. Mr Chamberlain gave evidence about his way of life following the assault. He has become withdrawn. He lives alone. He does not like leaving home and mixing with people. His sister does his shopping and helps around the house three or four days a week.

5. He spoke about paranoia and anxiety that he feels when he is with other people and particularly in crowds. He has some contact with his adult children. His social life is limited and he does not have recreational activities. He does not sleep well.

6. In 2014, in the aftermath of the assault, Mr Chamberlain consulted a clinical psychologist, Mr De Blasio. He told the Tribunal that he did not find the sessions were beneficial. He was not comfortable in one-to-one conversations with the psychologist. The sessions were terminated early. He did not seek psychology assistance from another practitioner and he has not consulted a psychiatrist. He said that he does not feel comfortable talking with medical practitioners about his situation and he prefers to talk to his sister and his mother about those problems and gets more benefit by doing so.

7. Mr Chamberlain said that he had been taking a low-dose antidepressant and other medication for physical pain. Generally from the time of the assault through to the assessment period and up to the present time he has avoided long-term use of medication. He does not like the side effects, stating ‘I’m not comfortable taking medication. So I’ll try and avoid it.’

8. Mr Chamberlain does not consider that a mental health care plan would work successfully for him. There is nothing more in terms of medication or professional assistance that he thinks is going to help him.

9. Medical certificates between December 2013 and June 2014 do not include a diagnosis of PTSD. They refer to the severe injury to the left wrist and hand. Clearly that was the injury which required primary attention at that time.

10. On 31 October 2014, Mr Chamberlain’s general practitioner, Dr Trigg, completed a Centrelink medical report form and referred to a diagnosis of PTSD and reactive depression and anxiety. Dr Trigg recorded that the diagnosis was confirmed by Mr De Blasio, medication had been discussed and prescribed. Dr Trigg wrote that no further treatment was planned for the time being as it seemed that Mr Chamberlain had come to terms with the incident. Dr Trigg wrote that Mr Chamberlain was anxious and frustrated at times but was doing his best to overcome his problems. He wrote:[10]

    He has been subject to nightmares, insomnia and anxiety regarding safety of himself, his home and family since the violent home invasion, but has overcome this to a great degree.

    [10] Ex1, T17/213.

11. In subsequent medical certificates in 2017 and 2018 Dr Trigg recorded a diagnosis of “anxiety, depression with possible PTSD secondary to the hand injury.[11]

    [11] Ex1, T17/244, 245,.

12. In a report dated 5 August 2016[12] Mr De Blasio wrote that Mr Chamberlain attended on four occasions between 3 March 2014 and 4 April 2014 for psychological assessment and treatment. Mr De Blasio conducted a psychometric assessment and provided a diagnosis that Mr Chamberlain fulfilled the criteria of PTSD.

    [12] Ex1, T17/241.

13. Mr De Blasio commenced treatment which he described as “cognitive restructuring of negative appraisals of the assault as well as the start of desensitisation.” Mr De Blasio reported that Mr Chamberlain did not remain in therapy. Mr de Blasio was uncertain whether the discontinuation of therapy arose out of difficulties that Mr Chamberlain had in discussing the assault or whether his personality did not lend itself to that type of therapy.

14. Over two years later, Mr Chamberlain attended one further appointment with Mr De Blasio . That appointment preceded the report which Mr De Blasio wrote. Mr De Blasio confirmed that Mr Chamberlain was still experiencing the:

    …classic symptoms of PTSD, that is, re-experiencing aspects of the trauma, hyperarousal when exposed to cues that remind him of the trauma and avoidance of exposure to these cues.

15. Mr De Blasio reported that Mr Chamberlain was restricted in hobbies that he previously enjoyed, he had stopped seeing friends, he had become socially withdrawn, angry and depressed.

16. Mr De Blasio’s prognosis was:

    Given the severity of Mr Chamberlain’s symptoms to the complex condition of PTSD, the lack of psychological progress, and the ongoing inability to have full use of his hand, it is very unlikely that he will be able to return to work in the foreseeable future.

17. It is important to note that Mr De Blasio had not made a clinical diagnosis of a depressive disorder. His diagnosis was PTSD with features of withdrawal, anger and depression.

18. Mr Chamberlain’s general medical practitioner, Dr Kurlinkus wrote in a report dated 17 September 2019[13] that the mental health condition was confirmed by Mr De Blasio, as PTSD and depression with anxiety. Similarly, in a report dated 3 May 2019 Dr Kurlinkus referred to Mr Chamberlain’s PTSD and depression.[14]

    [13] Ex 2.

    [14] Ex 1, T1/239.

1. Impairment Table 5 provides the descriptors relating to functional impairment due to a mental health condition, which includes recurrent episodes of mental health impairment. The introduction to Table 5 also indicates that the signs and symptoms of mental health impairment can vary over time and for mental health conditions that are episodic, the rating that best reflects the persons overall functional ability is appropriate. It is necessary to have regard to the severity, duration and frequency of the episodes or fluctuations.

2. Impairment Table 5 specifies that the diagnosis of a mental health condition 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).

3. Mr De Blasio is a clinical psychologist and he provided a diagnosis of PTSD.

4. Mr Chamberlain has consulted the same general medical practice for many years. Initially he consulted Dr Trigg at that practice, and subsequent to Dr Trigg’s retirement, he consulted Dr Kurlinkus. Both of those GPs have provided certificates and reports. In particular, Dr Kurlinkus provided three detailed and helpful reports about Mr Chamberlain’s physical and psychological issues. Those reports include a focus on the elements of the Impairment Table’s which the Tribunal has to consider.

5. The general practitioners’ medical certificates in 2017 and 2018 record a diagnosis of depression/anxiety and PTSD secondary to the hand injury. Care must be exercised in analysing the purported diagnosis. A correct diagnosis is the best precursor to treatment that is reasonable and beneficial. In Yazdari & Secretary Department of Social Services the Tribunal comprising Senior Member Dunne and Professor Riley discussed diagnoses and medical descriptions of depression in this way:[15]

   …the term “Depression” is sometimes used by doctors or other health professionals to refer to mood disorders like “major depressive disorder”. However, the term can also be used to describe a symptom, or set of symptoms, that may result from any one of a number of distinct disorders like major depressive disorder, adjustment disorder with depressed mood, or even PTSD. It seems this is why some health professionals use the term “clinical depression” instead of “depression” and why psychiatrists and clinical psychologists often prefer to use diagnostic terminology from the DSM-IV-TR.”

   [15] (2014) AATA 34 [32].

6. In this case it would be possible to consider that the medical evidence presents differential diagnoses including:

   (a)a diagnosed anxiety disorder namely PTSD; or

   (b)a diagnosed mood disorder, namely depression and anxiety, with secondary PTSD; or

   (c)more than one diagnosable psychological condition such as, for example, a PTSD and a depressive disorder

7. As already indicated, Impairment Table 5 states that a diagnosis of a mental health condition must include evidence either by a psychiatrist or by a clinical psychologist. Mr Chamberlain did not consult a psychiatrist. The report from the clinical psychologist, Mr De Blasio, clearly refers to a diagnosis of PTSD not to a diagnosis of depression and anxiety.

8. Noting Mr De Blasio’s report, the Tribunal accepts that Mr Chamberlain had a fully diagnosed mental health condition during the assessment period. The condition was PTSD. However, there is no evidence confirmed by a psychiatrist or a clinical psychologist that Mr Chamberlain was suffering from clinical depression or anxiety in the form of a diagnosed mood disorder.

9. In considering whether the mental health function was fully treated and fully stabilised the Secretary contended that Mr Chamberlain had ‘extremely little psychological therapy’ for a PTSD condition and ‘an insufficient amount of pharmacological therapy treatment.’

10. The Employment Services Assessment report,[16] concluded that Mr Chamberlain’s mental health condition was fully diagnosed but not fully treated and stabilised in the assessment period.

    [16] Ex1, T12/172.

11. The report from Dr Kurlinkus dated 3 May 2019 noted that further treatment is unlikely to improve Mr Chamberlain’s PTSD as it was now six years since the assault. Dr Kurlinkus reiterated that viewpoint in his report dated 17 September 2019 in which he wrote that Mr Chamberlain:

    …has received counselling as well as medication therapy which recently was changed. There has not been any further treatment that was likely to result in significant functional improvement in his condition to enable him to undertake work in the next two years.

12. Dr Kurlinkus added that he has been treating Mr Chamberlain since February 2017, that during this time Mr Chamberlain has remained the same, he is now taking the low-dose antidepressant (Zoloft) as well as Lyrica (neuropathic pain medication). Dr Kurlinkus wrote that Mr Chamberlain’s condition is stable.

13. Rule 6(5) of the rules for applying the Impairment Tables requires the Tribunal to consider the treatment or rehabilitation that has occurred in relation to the mental health condition and whether or not treatment is continuing or is planned in the next two years.

14. The treatment which Mr Chamberlain received was limited to an incomplete course of psychology therapy for PTSD some four years before the assessment period. Mr Chamberlain feels that the therapy finished prematurely because the psychologist thought it was not providing any therapeutic benefit. It may well be that both psychologist and client came to a mutual decision that the therapy was not working. In relation to medication, Mr Chamberlain appears to have an open, careful mind to following medical advice to assess whether a particular medication will have benefit. The Tribunal does not take an adverse view about Mr Chamberlain’s perspective on the value of the psychology treatment that was on offer and his caution about medication. The effect of his evidence is that he considers that he has taken appropriate measures to seek treatment, he has implemented the recommended treatment in good faith, and the treatment has put him in a position which is as ‘good as it gets’. However the Tribunal has to consider the evidence about the permanency of the mental health condition in the context of the Rules for applying the Impairment Tables.

15. By any measure, it appears that Mr Chamberlain was the victim of a violent assault which has devastating psychological effects. As Dr Kurlinkus put it: ‘his whole world has changed since the assault.’[17]

    [17] Ex1, T19/294.

16. However, the psychology treatment was extremely limited. It was treatment based on a diagnosis of PTSD not on a diagnosis of depression, with symptoms of anxiety and depression .,. There is no evidence from a psychiatrist or a clinical psychologist that Mr Chamberlain has clinical depression.

17. The psychology treatment for Mr Chamberlain’s PTSD was in its formative stages and far from complete. It was a form of therapeutic intervention that may have led to other kinds of therapy, potentially from other practitioners with particular expertise in psychology, psychiatry and counselling. Potentially it could have led to referral to a psychiatrist for assessment, diagnosis and intervention. Potentially, it could have led to a referral to an agency which specialises in working with victims of crime. It could have led to involvement with agencies providing specialised, professional guidance to treat depression and anxiety. While they are all matters of speculation, they also reflect the types of services that are often accessed in the treatment of depression, anxiety and PTSD. It is difficult to conclude that intermittent use of prescribed medication plus four sessions of psychological therapy meet the criteria in the Impairment Tables for reasonable treatment of Mr Chamberlain’s PTSD.

18. The Tribunal is satisfied that Mr Chamberlain’s mental health condition was not fully treated and fully stabilised in the assessment period. In particular the Tribunal considers that reasonable treatment, as defined in the rules for applying the Impairment Tables, was not undertaken. According to Rule 6(6)(b) a condition can be regarded, nonetheless, as fully stabilised when the person has not undertaken reasonable treatment and these criteria apply:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two 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

19. The Tribunal is not satisfied that either one of those criteria apply to Mr Chamberlain.

20. As the Tribunal is satisfied that the mental health condition was not fully treated and fully stabilised during the assessment period, it cannot attract an allocation of points under the Impairment Tables.

    SUMMARY

21. The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.

22. As outlined previously, the Tribunal finds that Ms Chamberlain’s upper limb condition was fully diagnosed treated and stabilised during the assessment period. The applicable rating for the upper limb condition is 10 points.

23. Mr Chamberlain’s mental health condition was diagnosed during the assessment period, however it was not fully treated and fully stabilised. Accordingly, an impairment rating cannot be given.

24. With a total of 10 impairment points. Mr Chamberlain does not have an impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore he does not satisfy s 94(1)(b) of the Act.

25. In these circumstances it is not necessary to consider whether or not during the assessment period Mr Chamberlain had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

26. As Mr Chamberlain was not qualified for DSP at the time he lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.

    DECISION

27. The Tribunal affirms the decision under review.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for the decision herein of

Member I Thompson.

..............[sgnd]...................

Administrative Assistant Legal

Dated: 4 March 2020

Date of hearing:   17 January 2020  

Applicant:  In person        

Counsel for the Respondent:   Mr C Visser

Solicitors for the Respondent:   Department of Human Services