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

[2022] AATA 1077

Elsleiman and Secretary, Department of Social Services (Social services second review) [2022] AATA 1077 (6 May 2022)

Division: GENERAL DIVISION

File Number(s):      2021/0890

Re:Hyssem Elsleiman

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:L Rieper, Member

Date:6 May 2022

Place:Sydney

The Tribunal affirms the decision under review.

...............................SGD.........................................

L Rieper, Member

CATCHWORDS

SOCIAL SECURITY – qualification for disability support pension - where Applicant has multiple health conditions – whether conditions are fully diagnosed, fully treated and fully stabilised during qualification period - Applicant found to not have an impairment rating of 20 points or more under the Impairments Tables - decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 26, 94

CASES

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

SECONDARY MATERIALS

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

REASONS FOR DECISION

L Rieper, Member

6 May 2022

INTRODUCTION

1. Mr Elsleiman seeks a review of a decision made in the Social Security and Child Support Division of this Tribunal on 8 January 2021.

2. The issue to be determined is whether Mr Elsleiman was qualified for disability support pension (DSP) following a claim made by him on 1 August 2019.[1]

   [1] T61, p 260 – 269.

3. A hearing was held on 18 February 2022 via telephone. Mr Elsleiman appeared on his own behalf, and the Respondent was represented by Ms Hammerton of Services Australia.

   QUALIFICATION FOR DSP

4. DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.

5. Subsection 94(1) of the Social Security Act 1991 (Cth) (‘the Act’) sets out the qualifications for DSP:

   Qualification for disability support pension

   (1) A person is qualified for disability support pension 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)one of the following applies:

   (i)    the person has a continuing inability to work; (…)

6. The Tribunal must determine whether Mr Elsleiman satisfied the qualification criteria for DSP at the date of his claim, or within 13 weeks of that date, which in this case would be by 31 October 2019 (‘the qualification period’). The Tribunal may consider medical evidence (or other evidence) provided subsequent to a claim, but the evidence must pertain to Mr Elsleiman’s condition and the status of his treatment at the time of his claim or during the qualification period.[2]

   [2] See Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

7. In order to satisfy paragraph 94(1)(b) of the Act, Mr Elsleiman must have an impairment rating of at least 20 points in total. The Impairment Tables are a Ministerial Determination under subsection 26(1) of the Act and are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).

8. The Impairment Tables set out the rules for assessing an impairment and assigning a rating. An impairment rating can only be given to a medical condition that is permanent. Permanent means[3]:

   (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

   (b)the condition has been fully treated; and

   (c)the condition has been fully stabilised; and

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   [3] See section 6(4) of the Impairment Tables.

9. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it is necessary to consider[4]:

   (a)whether there is corroborating evidence of the condition; and

   (b)what treatment or rehabilitation has occurred in relation to the condition; and

   (c)whether treatment is continuing or is planned in the next 2 years.

   [4] See section 6(5) of the Impairment Tables.

10. Fully stabilised means[5]:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [5] See section 6(6) of the Impairment Tables.

11. Reasonable treatment is treatment that[6]:

    (c)is available at a location reasonably accessible to the person; and

    (d)is at a reasonable cost; and

    (e)can reliably be expected to result in a substantial improvement in functional capacity; and

    (f)is regularly undertaken or performed; and

    (g)has a high success rate; and

    (h)carries a low risk to the person.

    [6] See section 6(7) of the Impairment Tables.

12. The Secretary concedes, and the Tribunal agrees, that Mr Elsleiman had medical conditions that cause impairment and, therefore, he satisfied paragraph 94(1)(a) of the Act during the qualification period.

13. It follows that the issues the Tribunal must determine are whether, during the qualification period, Mr Elsleiman had:

    (a)an impairment rating of 20 points or more under the Impairment Tables; and, if so

    (b)a continuing inability to work as defined in subsection 94(2) of the Act.

    CONSIDERATION

    Chronic Lymphocytic Leukaemia (CLL)

14. In a report dated 19 March 2018, Dr Gasiorowski, Consultant Haematologist, reported that Mr Elsleiman had monoclonal B lymphocytosis and was “at risk” of it evolving to CLL.[7]

    [7] T27

15. In a subsequent report dated 29 October 2019[8], Dr Gasiorowski advised that Mr Elsleiman was a patient of the Haematology service at Concord Hospital. He was initially diagnosed with monoclonal B lymphocytosis in February 2018. He had subsequently progressed to chronic lymphocytic leukaemia (CLL) in March 2019 after presenting with progressive thrombocytopenia, lymphadenopathy, a rising paraprotein and 20kg weight loss. He went on to have immunochemotherapy with Rituximab and Bendamustine from May to September 2019. He had tolerated this well with no ill effects and was in clinical remission for CLL. The condition was to be monitored as it was incurable and follows a relapsing/remitting course. He noted that from here the typical patient would be in remission for 4-5 years.

    [8] T49

16. In a medical certificate dated 21 April 2020, Dr Guirguis, Mr Elsleiman’s general practitioner diagnosed CLL and diabetes.[9] In respect of the CLL he noted the symptoms were tiredness and fatigue, and “short of breath on exertion”, and that Mr Elsleiman had “finished his chemotherapy and (was) still recovering”. He described the condition as temporary and said that the prognosis was uncertain.

    [9] T54

17. In his evidence to the Tribunal Mr Elsleiman described his symptoms at the time as consisting of tiredness, excessive sweating, lack of quality sleep and loss of appetite.

18. The Secretary accepts that Mr Elsleiman’s CLL was fully diagnosed, treated and stabilised during the qualification period. The Secretary says that the impairment attracts 5 points under Table 1 of the Impairment Tables.

19. The relevant parts of Table 1 state:

Points

Descriptors

0

There is no functional impact on activities requiring physical exertion or stamina.

(1)    The person:

(a)       is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and

(b)       has no difficulty completing physically active tasks around their home and community.

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)    The person:

(a)       experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)      walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)        performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)       is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

1. The Tribunal accepts Mr Elsleiman’s evidence and notes that it seems to be consistent with the evidence he gave in his hearing before the Social Security and Child Support Division, at which time he apparently gave evidence that he had previously been able to mow the lawn and carry out gardening but now felt tired. He could also only go for short walks and was tired after visits to the shopping centre.

2. The Tribunal therefore accepts the Secretary’s submission that there was a mild functional impact on activities requiring physical exertion or stamina as at the qualification period. That means the appropriate rating under Table 1 is 5 points.

   Depression and adjustment disorder

3. In a report dated 24 September 2019, Dr Guirguis advised that Mr Elsleiman had been under his care for the last 20 years.[10] He was suffering many medical, physical and psychological conditions but “mainly” CLL. In a list of the medical conditions, he included depression and gave the date of onset as 28 August 2018. He repeated the diagnosis and date of onset in subsequent medical reports.

   [10] T44

4. On 18 October 2019, Dr Withers, clinical psychologist, reported that Mr Elsleiman had attended two appointments.[11] Continued regular appointments were planned to deal with Mr Elsleiman’s ongoing mental health issues associated with his cancer diagnosis and his recent separation from his wife. Mr Elsleiman was currently being assessed and was likely to be suffering from an adjustment disorder.

   [11] T46

5. In a report dated 7 November 2019, Dr Withers advised that Mr Elsleiman had attended three appointments.[12] She noted that he had symptoms “which indicate he is experiencing psychological distress, likely due to an adjustment disorder.”

   [12] T52

6. On 3 August 2020, Dr Withers reported that Mr Elsleiman had been attending regular appointments since 27 September 2019. She noted Mr Elsleiman had been dealing with significant stressors, was dealing with a cancer diagnosis and other serious health conditions and in her view seeking work would be detrimental to his mental health. She did not provide a diagnosis.

7. In a report dated 5 May 2021, Dr Withers noted that for the last few months Mr Elsleiman had been experiencing symptoms consistent with a major depressive episode.[13]

   [13] A1

8. In his evidence to the Tribunal Mr Elsleiman was not a particularly good historian in relation to his mental health condition. He could not remember when he first suffered symptoms but eventually said it was two and a half to three years ago. He confirmed that he had not consulted a psychiatrist.

9. The Secretary contends that Mr Elsleiman’s mental health conditions were not fully diagnosed, treated and stabilised during the qualification period.

10. The Tribunal accepts the Secretary’s contention. Whilst a diagnosis of depression was made by Dr Guirguis prior to the qualification period, the Impairment Tables require that for the purposes of Table 5 (which is used to assess mental health function) diagnosis of the condition must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist. There is no evidence of a diagnosis of depression from a psychiatrist or clinical psychologist prior to Dr Wither’s report dated 5 May 2021. Whilst Dr Withers is a clinical psychologist and she suggests that Mr Elsleiman had an adjustment disorder in her reports dated 18 October 2019 and 7 November 2019, it is not clear that she made any such diagnosis during the qualification period.

11. Even if there was a diagnosis of adjustment disorder the Tribunal is satisfied that it was not fully treated or stabilised during the qualification period. Mr Elsleiman had seen Dr Withers on no more than three occasions by the end of the qualification period and treatment continued well beyond that time.

12. That means no impairment points can be considered in respect of Mr Elsleiman’s mental health conditions.

    Diabetes

13. On 17 September 2019, Dr Ganda, a consultant endocrinologist, reported that Mr Elsleiman had been referred for management of type II diabetes which had been diagnosed in 2013.[14] Dr Ganda reported that the diabetes was reasonably well controlled. Mr Elsleiman’s blood pressure and lipids were well controlled apart from the “TG”. His numbness and hot sensation in the feet was likely related to diabetic neuropathy.

    [14] T43

14. In a further report dated 16 June 2020, Dr Ganda noted that the burning sensation in Mr Elsleiman’s feet had been worse in the last two months but he concluded with the same assessment that he had provided in September 2019.[15]

    [15] T59

15. Mr Elsleiman gave evidence to the Tribunal that he suffered from swollen feet during the qualification period and confirmed that his feet were hot and numb as he had told the Social Security and Child Support Division. He also said that he cannot wear shoes and socks.

16. The Secretary accepts that Mr Elsleiman’s type II diabetes was fully diagnosed, treated and stabilised during the qualification period. The Secretary says that the condition does not warrant the assignment of any impairment points under Table 3 (Lower Limb) during the qualification period. In particular, the medical evidence does not suggest that as a result of his diabetic neuropathy Mr Elsleiman had difficulty walking to local facilities, walking around a shopping mall or supermarket or climbing stairs. Nor did it indicate that it caused an inability to stand for more than 10 minutes or result in the need for a prosthesis or walking stick.

17. Whilst the Tribunal accepts Mr Elsleiman’s evidence regarding his diabetes, the Tribunal is not satisfied that during the qualification period his condition attracted any impairment points under Table 3 of the Impairment Tables. In particular there must be corroborating evidence of the impairment (see the introduction to Table 3). Having reviewed the medical evidence, the Tribunal is satisfied that it does not establish that Mr Elsleiman’s symptoms caused a functional impairment. The Tribunal is therefore unable to apply an impairment rating from Table 3.

    Spinal condition

18. The medical evidence shows that Mr Elsleiman’s lower back and neck problems date back to 2004.[16] When a job capacity assessment report was prepared on 18 December 2013 it was noted that Mr Elsleiman had been involved in a work-related incident in 2004 and his neck and back problems were exacerbated by a fall from rocks in 2010.[17]

    [16] See Disability Support Pension medical report signed by Dr Guirguis on 13 August 2013 at T10

    [17] T21

19. There is no medical evidence before the Tribunal which provides any details about Mr Elsleiman’s lower back and neck problems during the qualification period. In a medical certificate dated 27 March 2018, Dr Guirguis provided a “diagnosis” of “Neck, back, Rt shoulder, Rt Hip and knee injuries” and said that Mr Elsleiman was suffering pain, had very restricted ranges of movement, was unable to stand or walk long periods of time and was unable to lift any heavy weights.[18]

    [18] T29

20. There is no mention of neck or back problems in a subsequent medical certificate completed by Dr Guirugis on 21 April 2020[19] and in a report he prepared dated 30 June 2020,[20] he noted that in July 2018 Mr Elsleiman had been assessed by an orthopaedic surgeon in respect of a right hip replacement, but he made no mention of spinal issues.

    [19] T54

    [20] T60

21. In a more recent report dated 30 August 2021[21], Dr Guirguis said that Mr Elsleiman ’s back and neck injuries were treated but that he was left with partial but permanent disability. In respect of his neck, he reported that Mr Elsleiman suffers neck pain with cervical radiculopathy due to disc lesions. In respect of his lower back, he said that Mr Elsleiman suffers lumbar disc lesions which cause him persistent low back pain, which is aggravated by lifting weights, walking and even standing. He opined that Mr Elsleiman had an impairment causing a moderate to severe functional impact on activities involving spinal function.

    [21] Exhibit A4

22. Mr Elsleiman gave evidence that he is in constant pain but choses to only take Panadol Osteo and Panamax instead of prescription pain medications. He thought that he might have undergone some physiotherapy in 2019 but could not remember when. He said that he can only attend five physiotherapy sessions per year as that is all that is covered by Medicare. He recalled being advised to undergo spinal surgery in about 2008 or 2009 but did not proceed as he was concerned about the risk of ending up confined to a wheelchair. He has not sought advice on surgery more recently and would not proceed in any event.

23. The Secretary accepts that Mr Elsleiman’s back and neck condition were fully diagnosed during the qualification period but says that there is insufficient evidence to determine if the condition was fully treated and stabilised at that time.

24. The Tribunal accepts that Mr Elsleiman suffers pain in his back and neck, but it is not clear what the diagnosis was during the qualification period. In his report dated 30 August 2021 Dr Guirguis provides diagnoses, but it is not clear whether the diagnoses were made before or after the qualification period. In any event there no medical evidence to assist the Tribunal to understand what treatment is reasonably necessary and whether it has been undertaken. Dr Guirguis refers to treatment in the past tense which suggests that none is being undertaken now. In his report dated 30 August 2021, he only referred to Mr Elsleiman’s CLL when answering a question about diagnosis, treatment and stabilisation. Mr Elsleiman’s evidence regarding potential surgery also suggests there may be further treatment that has not been fully explored.

25. As the Tribunal is unable to determine that Mr Elsleiman’s spinal conditions were fully diagnosed or fully treated as at the qualification period, it is unable to consider an impairment rating.

    Upper limbs

26. Mr Elsleiman injured his right shoulder when he fell on rocks in December 2010, and he underwent surgery on 7 April 2011.[22] He also slipped when walking by the side of a swimming pool resulting in a visit to the Emergency Department of Concord Hospital on 19 October 2013 with an elbow fracture.[23]

    [22] T5

    [23] T16

27. As noted above, in a medical certificate dated 27 March 2018, Dr Guirguis provided a “diagnosis” of “Neck, back, Rt shoulder, Rt Hip and knee injuries” and said that Mr Elsleiman was suffering pain, had very restricted ranges of movement, was unable to stand or walk long periods of time and was unable to lift any heavy weights.

28. In a medical report, apparently completed by Dr Guirguis on 12 February 2014 for an earlier claim for DSP, the doctor noted a diagnosis of “Neck, Rt shoulder, back, both knees (sic) injuries in different accidents”.[24] He advised that Mr Elsleiman had severe right shoulder pain and was unable to lift or use his right arm above shoulder level.

    [24] T22

1. In his report dated 30 August 2021, Dr Guirguis stated that Mr Elsleiman still experiences pains in his right shoulder and arm with restricted movements. He could lift and use his hand but the pain in his shoulder and elbow are always there and are aggravated by lifting or using his hand or arm. He opined that under Table 2 of the Impairment Tables Mr Elsleiman had an impairment causing a mild to moderate functional impact on activities using hands and arms.

2. Mr Elsleiman’s evidence was that, just as for his spinal pain, he only takes Panadol Osteo and Panamax to treat his upper limb pain. He could not remember if he had any treatment during the qualification period. He said that when he has undergone physiotherapy, he has found that it helps a little.

3. The Secretary contends that Mr Elsleiman’s right shoulder and left elbow conditions were fully diagnosed during the qualification period but says that there is insufficient evidence to determine if the conditions were fully treated and stabilised at that time.

4. The Tribunal is willing to accept that Mr Elsleiman’s upper limb injuries were fully diagnosed, fully treated and fully stabilised as at the qualification period. The Tribunal notes that unlike his back, Mr Elsleiman’s has had surgery, at least on his shoulder, and the evidence indicates he has been left with restricted movement despite the surgery.

5. Mr Elsleiman’s evidence regarding his upper limb function was that as at the qualification period he could not carry heavy items such as bags of shopping, do up buttons or reach above head height with his right arm. He is right hand dominant. He could handle small objects such as coins. He could not pick up a litre of milk with his right hand, pick up an empty cardboard box with both hands, do up his shoelaces or open a soft drink bottle. He could use a pen or pencil and a keyboard as long as he could rest his arms.

6. Mr Elsleiman was in receipt of carer payment and carer allowance for care he provided to his wife until 20 July 2019.[25] He gave evidence that one of the activities he carried out for his wife was making her food, although he subsequently said that he often stood with her whilst she prepared the food. He said that he was able to make her sandwiches and get her a glass of water. He said that when slicing a tomato he had to use his left hand to hold the knife whilst he held the tomato with his right hand.

   [25] T72, p.385

7. The appropriate Table for assessing upper limb function is Table 2 of the Impairment Tables.

8. Dr Guirguis’ assessment of there being a mild to moderate impact on activities using hands or arms equates to an impairment rating of 5 or 10 points. Paragraph 11(1)(c) of the Rules for applying the Impairment Tables says that if an impairment falls between two impairment ratings then the lower rating must be assigned. The Tribunal is mindful that Dr Guirguis’ assessment was undertaken in August 2021, which was well after the qualification period, however there is no evidence to suggest that Mr Elsleiman’s upper limb condition changed significantly since the qualification period. Therefore, taking into account that assessment and the evidence given by Mr Elsleiman during the hearing, the Tribunal is satisfied that the appropriate rating under Table 2 is 5 points.

   Lower limbs

9. Dr Guirguis’ medical certificate dated 18 May 2011[26] mentions right hip pain but does not refer to any injuries to Mr Elsleiman’s knees as a result of the fall he suffered on rocks in December 2010. In his report dated 30 August 2021, Dr Guirguis attributed injuries to Mr Elsleiman’s right hip and knee to a fall that occurred in 2010.

   [26] T5

10. When Dr Guirguis completed the medical report dated 13 August 2013, he stated that Mr Elsleiman was recovering from a right total hip replacement and was also suffering from pain in his knees.

11. In his medical certificate dated 27 March 2018, Dr Guirguis also referred to right hip and knee pain in both knees. He said that Mr Elsleiman was unable to stand or walk for long periods of time.

12. In his report dated 30 August 2021, Dr Guirguis assessed Mr Elsleiman as having a lower limb impairment which has a mild to moderate functional impact on activities using lower limbs. He said that Mr Elsleiman had recovered from his right hip replacement surgery with some limitations in his hip movement and ability to walk and exercise.

13. Mr Elsleiman told the Tribunal that as at the qualification period he could walk for less than 10 minutes. He described being able to walk from his car to the supermarket but said that he did not go inside and instead waited outside whilst his wife or daughter did the shopping. His evidence regarding using stairs was a little confused but he eventually confirmed that at as at the qualification period he was able to go up a flight of stairs with the use of the handrail. He can stand for 10 minutes.

14. The Secretary accepts that Mr Elsleiman’s right hip and left knee conditions were fully diagnosed during the qualification period but says that there is insufficient evidence to show that the conditions were fully treated and stabilised at the time.

15. The Tribunal is, again, willing to accept the opinion of Dr Guirguis in his report dated 30 August 2021, which is consistent with Mr Elsleiman’s evidence to the Tribunal. An impairment which has a mild to moderate functional impact on activities using lower limbs equates to either 5 or 10 points. Once again paragraph 11(1)(c) of the Rules for applying the Impairment Tables says that if an impairment falls between two impairment ratings then the lower rating must be assigned and so the appropriate impairment rating under Table 3 of the Impairment Tables is 5 points.

    Liver disease

16. On 4 November 2019[27], Dr Shim of the Liver Clinic at Concord Hospital reported that Mr Elsleiman had been a patient since 2014. He had liver cirrhosis on a background of diabetes, hypertension and hypercholesterolaemia. Given his condition he required 6 monthly reviews with blood tests and abdominal imaging as well as a gastroscopy whenever necessary to manage his condition and to prevent complications that could arise as a result of his condition. His condition was chronic and would most certainly need lifelong close monitoring. Dr Shim noted that Mr Elsleiman may not be able to undertake normal work duties.

    [27] T51

17. In his evidence to the Tribunal Mr Elsleiman confirmed his previous evidence to the Social Security and Child Support Division, that is, he suffers from intermittent abdominal pain that sometimes interrupts his sleep.

18. The appropriate Table for assessing a permanent condition resulting in functional impairment related to digestive system functions such as the liver is Table 10. The Tribunal is satisfied that the symptoms described by Mr Elsleiman do not attract any impairment points under Table 10.

    Hernias

19. Mr Elsleiman underwent a bilateral inguinal hernia repair in 2010 and an abdominal hernia repair in 2011.[28]

    [28] T16

20. On 14 February 2014, Dr Guirguis reported that Mr Elsleiman was currently stabilised with restricted daily duties of no heavy lifting, no frequent bending and rest when in discomfort or pain.[29]

    [29] T23

21. On 22 October 2019, Dr Guirguis reported that Mr Elsleiman had suffered a recurrence of his inguinal hernia bilaterally and was due to consult with his surgeon.[30]

    [30] T47

22. Mr Elsleiman could not recall when he consulted the surgeon but gave evidence that the surgeon recommended surgery which he refused.

23. Given that the evidence establishes that during the qualification period Mr Elsleiman was suffering from a recurrence of his hernia condition which Mr Elsleiman refused to have treated as recommended by his surgeon, the Tribunal is satisfied that the condition was not fully treated or fully stabilised and therefore no impairment rating can be considered.

    Other conditions

24. There are references to hypertension and hyperlipidaemia in the papers but little information about the symptoms suffered by Mr Elsleiman during the qualification period. The Tribunal is not satisfied that there was any impairment capable of attracting an impairment rating at that time.

25. Mr Elsleiman also mentioned sleep apnoea during the hearing. Once again there is insufficient medical evidence before the Tribunal to support a finding that Mr Elsleiman was suffering an impairment during the qualification period.

    CONCLUSION

26. The Tribunal is satisfied that at the qualification period, Mr Elsleiman had an impairment rating of 15 points under the Impairment Tables. This means that Mr Elsleiman did not fulfil the qualification requirements set out in subsection 94(1) of the Act because he did not have an impairment of 20 points or more under the Impairment Tables as at the qualification period.

27. It is therefore not necessary for the Tribunal to go on and consider whether Mr Elsleiman has a continuing inability to work as defined in subsection 94(2) of the Act.

    DECISION

28. The Tribunal affirms the decision under review.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of L Rieper, Member

................................SGD........................................

Associate

Dated: 6 May 2022

Date of hearing:	18 February 2022
Applicant:	In person
Solicitors for the Respondent:	Ms Cara Hammerton, Services Australia