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

This matter concerned an appeal by an applicant against a decision of the Secretary, Department of Social Services, affirming a decision that the applicant did not qualify for a Disability Support Pension. The dispute centred on whether the applicant's impairments met the criteria for the pension, specifically regarding the severity and impact of a spinal condition. The decision was made by P E Nolan SM.

The primary legal issue before the court was whether the applicant's impairments, particularly a spinal condition, were fully diagnosed, treated, and stabilised during the relevant period and whether these impairments attracted 20 or more impairment points under the relevant Impairment Tables, as required by section 94(2) of the Social Security Act. The court also considered whether the applicant had a continuing inability to work, which necessitates satisfying all criteria under section 94(2) of the Act.

The court accepted the respondent's concession that the applicant's spinal condition, comprising a fractured L1 vertebra and an L5/S1 disc prolapse, was fully diagnosed, treated, and stabilised during the relevant period. However, the court found that this condition attracted only 10 impairment points under Impairment Table 4 - Spinal Function. To qualify for a higher rating of 20 points, the applicant would have needed to demonstrate specific functional limitations, such as an inability to perform overhead activities, turn their head without trunk movement, bend forward to pick up a light object, or remain seated for at least 10 minutes. The medical evidence, particularly from neurosurgeons, provided limited assistance regarding the applicant's functional impairment during the relevant period.

As the applicant's impairments did not attract 20 or more impairment points, the court concluded that the applicant did not qualify for the Disability Support Pension. Consequently, the decision under review was affirmed. The court noted that the applicant might benefit from lodging a fresh application with additional medical evidence addressing the specific criteria for the pension.