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

Darwich and Secretary, Department of Social Services (Social services second review) [2019] AATA 2956 (26 August 2019)
Division:GENERAL DIVISION

File Number(s): 2017/6744
Re:Basma Darwich
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Senior Member Linda Kirk
Date:26 August 2019
Place:Sydney

The Reviewable Decision is affirmed.
.........................[sgd]...........................................
Senior Member Linda Kirk
Catchwords
SOCIAL SECURITY – disability support pension – qualification for payment – whether the applicant has physical, intellectual or psychiatric impairments – whether the applicant's conditions were fully diagnosed, treated and stabilised – whether the impairments attract 20 points or more – Impairment Tables – decision affirmed
Legislation
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) s 42, Sch 2
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member Linda Kirk
26 August 2019

Ms Basma Darwich (‘the Applicant’) suffers from a number of medical conditions which she claims make it difficult for her to work, or to look for work.
On 24 March 2016, the Applicant lodged a claim for the Disability Support Pension (‘DSP’).[1] On 19 May 2016, her application for DSP was rejected by a delegate of the Secretary of the Department of Social Services (‘the Respondent’),[2] and on 21 October 2016, an Authorised Review Officer (‘ARO’) affirmed the decision on review, on the basis that the Applicant did not satisfy the requirements of section 94 of the Social Security Act 1991 (Cth) (‘the Act’).[3]
[1] T28, 191.
[2] T30, 227.
[3] T36, 235.
On 22 November 2016, the Applicant applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal for review (‘AAT1’). In a decision dated 8 June 2017, AAT1 affirmed the decision of the ARO refusing the Applicant’s claim for DSP as she did not satisfy section 94(1)(b) of the Act[4] (‘the Reviewable Decision’).
[4] T2, 3.
On 13 November 2017, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[5]
[5] T1, 1.
The matter was heard by the Tribunal in Sydney on 27 June 2019. The Applicant attended the hearing in person and was self-represented. She was assisted by an interpreter in the English and Arabic languages.
LEGISLATION AND ISSUES FOR DETERMINATION
Pursuant to section 42 and Schedule 2 of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’) in order to qualify for DSP, the Applicant must satisfy the requirements of section 94 of the Act as at the date she made her claim, or within 13 weeks of lodging the claim, that is between 24 March 2016 and 23 June 2016 (‘the qualification period’).
The issue before the Tribunal is whether the Applicant qualified for DSP at the time of the qualification period.
Section 94(1) of the Act provides that a person qualifies for the DSP if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) the person has a continuing inability to work as defined in section 94(2) of the Act.
The Respondent concedes and the Tribunal accepts that the Applicant suffered medical conditions that caused impairment during the qualification period, and therefore she satisfied section 94(1)(a) of the Act at the time of her claim for DSP.
It follows that the issues for determination for the Tribunal in this matter are whether, during the qualification period, the Applicant had:
·an impairment rating of 20 points or more under the Impairment Tables (section 94(1)(b)); and
·a continuing inability to work as defined in section 94(2) of the Act (section 94(1)(c)).
The Impairment Tables
The Impairment Tables are set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).
The Impairment Tables describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment.
The Introduction to each relevant Table requires that “[s]elf-report of symptoms alone is insufficient” and “[t]here must be corroborating evidence of the person’s impairment”.
Part 2 of the Impairment Tables details the rules for assigning ratings to determine the level of functional impact of impairment. ‘Impairment’ is defined in section 3 to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”.
Section 6(3) of the Impairment Tables requires that an impairment rating can only be assigned if the condition causing that impairment is ‘permanent’. Section 6(4) of the Impairment Tables, provides that a condition is ‘permanent’ if it:
(a)has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)has been fully treated; and
(c)has been fully stabilised; and
(d)is more likely than not to persist for more than two years.
In assessing whether a condition is ‘fully diagnosed’ by an appropriately qualified medical practitioner and whether it has been ‘fully treated’, section 6(5) of the Impairment Tables instructs that a decision-maker must consider whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred; and whether treatment is still continuing or is planned in the next two years.
For the purposes of the Impairment Tables, section 6(6) defines ‘fully stabilised’ to mean:
(a)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 two 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 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.
The Macquarie Dictionary defines “undertaken” as, inter alia, committing oneself to, taking on, and promising to do a particular thing.
‘Reasonable treatment’ is defined in section 6(7) of the Impairment Tables as treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 11 of the Impairment Tables instructs that an impairment rating can only be assigned in accordance with the ratings in each table and a rating cannot be assigned between consecutive impairment ratings. Significantly, section 11(1)(c) provides:
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 (emphasis added)
EVIDENCE AND CONTENTIONS
The Applicant claims and the Respondent accepts that during the qualification period the Applicant suffered from the following conditions recognised under the following Tables:
·Table 4 – Spinal condition;
·Table 5 – Mental health condition;
·Other conditions - shoulder and hand pain, anaemia, vision, and migraine.
Table 4 – Spinal condition
The following evidence is before the Tribunal in relation to the Applicant’s symptoms and level of function with respect to her spinal condition.
In 2014, Dr Hanna reported that the Applicant has difficulty sitting or standing for long periods. She also has difficulty lifting and/or carrying more than five kilograms.[6]
[6] T18, 177.
On 4 March 2016, Dr Namuk Alkhateeb reported in relation to the Applicant:
her main problem is Dorsolumbar kyphoscoliosis causing the Facet joint Osteoarthritis with persistent pain. The x-ray of the thoracic and lumbar spine showed mild multilevel anterior endplate osteophytes market at T9/10 at the dorsal spine. At the lumbar spine she showed mild...[7]
[7] ST2,276. The proceeding page(s) to this report were not made available following a direction from the Tribunal dated 15 February 2019.
A CT scan of the Applicant’s thoracic spine performed on 16 March 2016 revealed "mild spondylitic change", "no compression fracture or focal bony lesion", no evidence of a disc protrusion with central canal preserved.[8]
[8] T26, 189.
A CT of the Applicant’s lumbar spine performed on 17 March 2016 revealed:[9]
·Alignment of the lumbar spine appears satisfactory;
·No scoliosis or spondylolisthesis;
·L2/3 and L3/4 levels appear normal;
·No canal or foraminal narrowing;
·L4/5 level shows broad bulging of the disc;
·No canal stenosis;
·Moderate to severe right foraminal narrowing noted.
[9] T27, 190.
The Applicant reported the following at a job capacity assessment on 2 May 2016:[10]
·She lives alone and completes all the household chores at a slow pace;
·She is able to travel independently on buses and trains;
·When she travels to do her grocery shopping, she walks to the nearby bus stop which takes 10 minutes and she goes on a bus ride which takes 30 minutes;
·She uses a folding shopping trolley to carry her shopping;
·She is able to bend forward to pick up a light object placed at knee height but she has difficulty straightening up again.
[10] T29, 223-224.
On 12 December 2017, Dr Joushan Ara referred the Applicant to see Dr Nazneen Akhter regarding her back pain. Dr Ara considered that the Applicant might benefit from an MRI and further pain management.[11]
[11] ST3, 277.
A CT of the Applicant’s lumbar spine performed on 10 January 2018 revealed a number of findings.[12]
[12] ST4, 279-280.
On 19 February 2018, Dr Nazneen Akhter reported that the Applicant has "chronic lower back pain with radiation to legs in both side (sic), caused sever kyphosis posture during walks...CT scan of lumbosacral spine showed multilevel disc prolapse”. Dr Akhter reported that the Applicant walks limited distances and "does not do any house hold tusk (sic) as her pain aggravates and stops her from day to day activities".[13]
[13] ST5, 281.
The Applicant told AAT1 that she finds it very difficult to reach up to retrieve a book from a shelf or a plate from a cupboard and she is unable to bend down to pick up something on the floor. It is not easy for her to turn her head from side to side and up and down to see what is around her. At the AAT1 hearing, she appeared able to turn her head to look over her shoulder, was able to bend forward to pick up what was on the table in front of her, and did not need assistance to get up out of her chair.[14]
[14] T2, 6.
At the hearing, the Applicant told the Tribunal that she lives alone and has done so since her husband died six and a half years ago.
She was asked whether she does any household chores. She said she rarely does work at home and her house is not clean. All she can do is wipe down surfaces. She was asked whether she does grocery shopping. She explained that when she goes shopping she buys just a few items and then goes home. She uses a shopping trolley to carry her groceries.
The Applicant was asked whether in May 2016 she could use public transport. She said that she could and she continues to do so. She travelled to the Tribunal by train to attend the hearing. She explained that she cannot walk without supporting herself by holding onto the wall or a chair. When she walks outside she supports herself on her shopping trolley. Sometimes people offer to help her, by allowing her to put her hand on their shoulder, or by holding her hand when she walks.
The Applicant agreed that her condition has worsened in the past three years. When she walks she has to stop for a while, take a rest, and then continue. She was asked which of her conditions gave her the most difficulty to function every day. She said that all of them are causing her problems: her back, her headaches and now her wrist bones are sore.
At the Tribunal hearing, the Applicant was able to remain seated for the duration of the hearing and was able to get up from her chair without assistance.
The Respondent submits, in light of the medical evidence available prior to and during the qualification period, the Applicant’s spinal condition is permanent and a rating of five points under Table 4 of the Impairment Tables is appropriate.[15]
[15] Respondent’s SFIC para [37].
Table 5 – Mental health condition
The following evidence is before the Tribunal in relation to the Applicant’s symptoms and level of function with respect to her mental health condition.
On 24 August 2012, Dr Hany Hanna, the Applicant's general practitioner, reported that the Applicant suffers major depression and is treated with Zoloft.[16] The Applicant's symptoms include, "insomnia, no motivation and cannot concentrate".[17] Dr Hanna reported that the underlying cause of the Applicant’s symptoms is the loss of her husband.
[16] T5, 102.
[17] T5, 103.
On 1 May 2013, Dr Hanna reported that the Applicant suffers from major depression and saw a psychiatrist on 9 October 2012.[18] On 6 November 2013, he reported that the Applicant’s major depression is treated with Zoloft. He noted that the Applicant cannot concentrate and is not motivated.[19] In 2014, Dr Hanna again noted the same diagnosis and treatment for the Applicant's major depression.[20]
[18] T9, 123.
[19] T13, 143.
[20] T16, 165.
On 10 October 2014, Dr Fayza Al Shamali, reported that the Applicant completed six sessions of psychological treatment.[21] He noted that the Applicant is taking anti-depressants prescribed by Dr Karima,[22] and her attitude towards psychological treatment is positive. The Respondent points out that Dr Al Shamali is not listed as a registered practitioner under the Australian Health Practitioner Regulation Agency.
[21] T17, 166.
[22] T17, 168. The Applicant did not provide any reports from Dr Karima as part of her application.
On 22 October 2014, Dr Hanna reported that the Applicant had been diagnosed with major depression with anxiety and was taking Zoloft and receiving counselling from Dr F Al Shamali.[23] The Applicant has "loss of appetite, trouble sleeping, difficulty concentrating, poor memory, difficulty fulfilling home duties". Prognosis is uncertain.
[23] T18, 172.
On 6 November 2015, Dr Al Shamali prepared a report, identical to his earlier report dated 10 October 2014.[24]
[24] T20, 181.
On 16 March 2016, Dr Mahmoud Abu-Arab, clinical psychologist, prepared a report and stated that the Applicant:[25]
·attended six consultations of cognitive behaviour therapy;
·has a history of depressed mood, loss of interest in pleasant activities, laziness, feeling tired, careless, hopeless and helpless;
·reported irrational fears of death and dying;
·friends and family are supportive and she calls friends to her home;
·reported episodes of shortness of breath, difficulty breathing, heart beating fast.
[25] T25, 187.
Dr Abu-Arab confirmed that the Applicant suffers from major depressive disorder as first diagnosis and generalised anxiety as second diagnosis. He opined that this condition affects the Applicant's ability to concentrate on tasks and communicate with supervisors and colleagues at work. The Applicant has attended psychotherapy in the past, her condition has stabilised and no significant improvement is expected.[26]
[26] T25, 188.
The Applicant reportedly told a job capacity assessor (‘JCA’) in May 2016 that she ceased Zoloft a few months prior to the assessment, as she did not experience any benefit from the medication. She also reported the following symptoms: "depressed mood, loss of interest in pleasant activities, laziness, feeling tired, carelessness, hopelessness and helplessness". The Applicant stated that she has friends and neighbours who are supportive. However, she is socially isolated and has minimal social contact. The JCA found that the Applicant’s mental health condition was not fully treated and stabilised as the Applicant ceased her medication, and she would likely benefit from seeing a psychiatrist to review her medication and explore suitable treatment to improve her symptoms.[27]
[27] T29, 221-222.
On 24 October 2018, Dr Abu-Arab reported that he was again seeing the Applicant under a Mental Health Care Plan. Although she did not respond to treatment, Dr AbuArab stated that the Applicant's diagnosis, treatment and prognosis remained unchanged. The condition continued to affect her ability to concentrate on tasks and communication. Her friends and neighbours continue to support her.[28]
[28] ST8, 284-285.
At the hearing, the Applicant told the Tribunal that in May 2016 her husband’s daughter and her neighbours used to come to visit her but now no one does. They would come for only 10 minutes to see how she was doing and then they would leave. They used to provide her with some assistance but now she has no help at all.
The Applicant told the Tribunal that three years ago she was preparing her own meals and was able to have showers and baths by herself. However now she cannot shower herself and all she can do is sit on the bathtub and pour hot water down her back. It has been a month since she has been able to wash her hair.
The Respondent submits that, even with the Applicant's self-admission that she ceased her medication at the time of claim, Dr Abu-Arab confirmed in his subsequent reports that her mental health condition is unlikely to improve despite the history of treatment with medication and counselling. Based on this evidence, the Respondent accepts that the Applicant's mental health condition was ‘permanent’ at the time of claim.[29]
[29] Respondent’s SFIC para [49].
The Respondent contends that four of the six descriptors of a mild functional impact on activities involving mental health function, and two of the six descriptors of a moderate functional impact are satisfied. Accordingly, a rating of no more than five points under Table 5 is appropriate.[30]
Other conditions
[30] Respondent’s SFIC para ???
Shoulder and hand pain
On 22 October 2014, Dr Hanna reported that the Applicant suffers from carpal tunnel syndrome, which caused her minimal or limited impact on her ability to function.[31] On 20 November 2015, Dr Namuk Alkhateeb reported "pins and needles, numbness and some pain of the finger' tips associated with finger discoloration. this is most probably due to Raynaud's phenomenon, idiopathy in origing (sic)."[32] On 4 March 2016, Dr Alkhateeb reported that he had seen the Applicant in relation to her carpel tunnel syndrome and Raynaud’s Phenomenon of the fingers. He reported that rheumatoid arthritis had been excluded on clinical grounds.[33]
[31] T18, 178.
[32] T21, 183
[33] ST2, 276.
The Applicant told AAT1 that she has pain in her shoulders and hands, especially in winter. Her shoulders are bent and her hands sometimes become swollen. She is able to slowly take a shower, wash her hair and dress herself. She told the Tribunal she is able to do up buttons, write with a pen or pencil and use a mobile phone. She is not able to unscrew a bottle of lemonade or take a carton of milk out of the refrigerator.[34]
[34] T2, 8.
Anaemia
On 6 November 2013 Dr Hanna reported that the Applicant has iron deficiency anemia which is generally well managed and causes minimal or limited impact on her ability to function.[35] On 22 October 2014, Dr Hanna reiterated that the Applicant suffers from anaemia which causes minimal or limited impact on her ability to function.[36] AAT1 noted that this causes her to become dizzy and to have pain in her head. She is always tired and has to have a sleep during the day. Her legs shake and she cannot walk very far. Pathology reports dated 24 February 2017[37] indicate the Applicant has vitamin B12 deficiency and low levels of iron.
[35] T13, 145.
[36] T18, 178.
[37] T38, 242; ST9, 286.
Vision

The Applicant told AAT1 she wears glasses when at home and uses eye drops as directed. She saw a specialist but does not have a report. On 9 March 2018, Mr Magdi Noussair, optometrist, reported that the Applicant "has weakness in eyesight in both eyes and as a result requires the use of glasses. Recently, she also developed cataracts in both eyes and this makes her eyes very sensitive to glare and lights".[38]
[38] ST6, 282.
The Respondent submits that there is no evidence to indicate whether the Applicant has consulted a specialist with respect to her vision, and accordingly contends that during the qualification period the Applicant’s visual impairment was not fully diagnosed, fully treated or fully stabilised.[39]
[39] Respondent’s SFIC para [64].
Migraine
On 7 February 2014, Dr Hanna reported that the condition of migraine headaches causes the Applicant minimal impact on ability to function.[40]
[40] T16, 164.
CONSIDERATION AND REASONS
The issue for determination by the Tribunal is whether the Applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period, and if so, what rating should be assigned for functional impairment in accordance with the Impairment Tables – s 94(1)(b).
Table 4 – Spinal condition
On the basis of the medical evidence detailed in paragraphs 23-26 and 28-30 above, the Tribunal is satisfied that the Applicant’s spinal condition was ‘permanent’ during the qualification period and can be assigned an impairment rating.
In assigning an impairment rating to the Applicant’s condition, the Tribunal has had regard to the medical evidence before it, the evidence provided by the Applicant to AAT1 and at the Tribunal hearing, and the descriptors in Table 4 below.
On the basis of the evidence before it, and for the reasons detailed below, the Tribunal is satisfied that the Applicant’s spinal condition meets the descriptors for a mild functional impact on activities involving spinal function.
The evidence before the Tribunal is that at the AAT1 hearing in June 2017 the Applicant was able to turn her head to look over her shoulder, bend forward to pick up what was on the table in front of her, and did not need assistance to get up out of her chair. At this time, the Applicant was also able to perform overhead activities such as washing her own hair. The Applicant’s evidence at the AAT1 hearing was that she finds it very difficult to reach up to retrieve a book from a shelf or a plate from a cupboard and she is unable to bend down to pick up something on the floor.
Having regard to the descriptors for mild and moderate functional impact in Table 4, the Tribunal finds that it is appropriate to assign an impairment rating of five points to the Applicant’s spinal condition.
Table 5 – Mental health condition
Based on the diagnosis made in March 2016 by Dr Abu-Arab, the Tribunal is satisfied that during the qualification period the Applicant suffered from major depressive disorder as first diagnosis and generalised anxiety as second diagnosis, and this condition was ‘permanent’ and can be assigned an impairment rating.
In assigning an impairment rating to the Applicant’s condition, the Tribunal has had regard to the medical evidence before it, the evidence provided by the Applicant to AAT1 and at the Tribunal hearing, and the descriptors in Table 5 below.
To satisfy the criteria for a mild or moderate functional impact on activities involving mental health, the person must have difficulty with most of the elements below (most meaning at least four of the six). If an impairment rating 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: subsection 11(1)(c) of the Impairment Tables.
With respect to descriptor (a), the Applicant’s evidence is that since her husband died six and a half years ago, she has lived alone and her stepdaughter and friends only visited her occasionally.[41] There is no corroborative evidence that the Applicant needs support from a family member or support worker to live independently and maintain adequate hygiene and nutrition. The Tribunal finds that the evidence satisfies the descriptor for a mild functional impact in relation to descriptor (a) self-care and independent living.
[41] T29, 222.
With respect to descriptor (b), the Applicant’s evidence is that she was able in May 2016 and is currently able to travel independently on buses and trains.[42] The Applicant attended the AAT1 and the Tribunal hearing alone and in person. The evidence supports a finding that the Applicant’s mental condition has a mild functional impact in relation to descriptor (b) social/recreational activities and travel.
[42] T29, 223.
In relation to descriptor (c), the evidence of Dr Abu-Arab, Dr Hanna and the Applicant is that she is socially isolated. Dr Abu-Arab reported that the Applicant "calls friends to her home"[43] and "her friends and neighbours are supportive", which indicates that she has some interpersonal relationships. The Applicant’s evidence at the hearing was that in May 2016 her step-daughter and friends would visit her. This evidence supports a finding of a mild functional impact of the condition in relation to descriptor (c) interpersonal relationships.
[43] T25, 187.
Dr Abu-Arab reported that the Applicant’s mental health condition "affects her ability to concentrate on tasks."[44] Dr Al Shamali reported that the Applicant's symptoms include "excessive crying, constantly feeling physically tense, loss of appetite and sleep disturbances including nightmares, flashbacks, negative emotions including disappointment, confusion, hopelessness, and lack of concentration, poor short memory and helplessness."[45] On the basis of this medical evidence, the Tribunal is satisfied it is appropriate to assign a moderate functional impact rating under descriptor (d) concentration and task completion.
[44] ST8, 285.
[45] T17, 167.
In relation to descriptor (e) behaviour, planning and decision making, Dr Abu-Arab reported that the Applicant has depressed mood and loss of interest in pleasant activities.[46] On the basis of this evidence the Tribunals finds that the Applicant suffers moderate functional impact under descriptor (e).
[46] ST8, 285.
In relation to descriptor (f), Dr Abu-Arab reported that the Applicant's mental health condition affects her ability to "communicate with supervisors and colleagues at work". The evidence before the Tribunal is that Applicant has never worked[47] or engaged in paid employment[48] as prior to his death she stayed at home to care for her husband. There is no evidence that the Applicant has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings. The evidence before the Tribunal is that Applicant completed 760 days in a program of support, requiring ongoing attendance and participation. The Tribunal is satisfied that the evidence before it is indicative of a mild functional impact of the Applicant’s condition in relation to descriptor (f) work and training capacity.
[47] T29, 225.
[48] STB, 284.
As the evidence before the Tribunal is that four of the six descriptors of mild functional impact on activities involving mental health are satisfied, the Tribunal finds that an impairment rating of five points under Table 5 is applicable to the Applicant’s mental health condition.
Other conditions
Shoulder and hand pain
The evidence before the Tribunal is that at the time of the qualification period the Applicant had been diagnosed with carpal tunnel syndrome and Raynaud’s Phenomenon. However, there is insufficient evidence for it to make a finding that this condition was fully treated and stabilised at the relevant time. There is no evidence that the Applicant had seen a specialist or consulted a surgeon about the possibility of undergoing release surgery. Accordingly, this condition was not ‘permanent’ at the date of the claim, and no impairment rating can be assigned to the condition.
Anaemia
The evidence before the Tribunal is that the Applicant has been diagnosed with iron deficiency anaemia and vitamin B12 deficiency. However, it finds that there is insufficient evidence for it to be satisfied that the condition is ‘permanent’ for the purposes of the Act. Even if the condition is permanent, the medical evidence is that it is generally well managed and causes minimal or limited impact on the Applicant’s ability to function.[49] Accordingly, no impairment rating can be assigned to this condition.
[49] T13,145; T18,178.
Vision
The evidence before the Tribunal is that at the qualification period the Applicant had problems with her vision and wears glasses and uses eye drops. However, there is no evidence to indicate that the Applicant had consulted a specialist with respect to her vision problems. Accordingly, the Tribunal cannot be satisfied that the Applicant’s visual impairment was fully diagnosed, fully treated or fully stabilised at the time and therefore an impairment rating cannot be assigned to this condition.
Migraine
The evidence before the Tribunal is that at the qualification period the Applicant suffered from the condition of migraine headaches. However, there is no evidence to indicate that the Applicant had consulted a specialist with respect to her migraines. Accordingly, the Tribunal cannot be satisfied that the Applicant’s neurological condition was fully diagnosed, fully treated or fully stabilised at the time, and therefore an impairment rating cannot be assigned to this condition.
CONCLUSION
During the qualification period, the Applicant suffered from impairments attracting a total rating of 10 points under the Impairment Tables. As this is less than the required total of 20 points necessary to establish eligibility for DSP, she does not satisfy s 94(1)(b) of the Act. Accordingly, the Applicant was not qualified for DSP during the qualification period.
As the Tribunal has found that the Applicant does not satisfy paragraph 94(1)(b) of the Act, it does not need to consider her continuing ability to work under paragraph 94(1)(c) of the Act, as failure to meet one of the legislative criteria in subsection 94(1) of the Act means that the section as a whole is not satisfied and the Applicant cannot qualify for DSP.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

............................[sgd]............................................
Associate
Dated: 26 August 2019

Date(s) of hearing: 27 June 2019

Applicant: In person

Solicitors for the Respondent: Ms B Salaji, Department of Human Services

[2019] AATA 2956

26 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	27 June 2019
Applicant:	In person
Solicitors for the Respondent:	Ms B Salaji, Department of Human Services