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

[2021] AATA 280

Evans and Secretary, Department of Social Services (Social services second review) [2021] AATA 280 (19 February 2021)

Division:GENERAL DIVISION

File Number(s): 2020/3471

Re:Damian Evans

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:19 February 2021

Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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

Member W Frost

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – disability support pension –- eligibility for disability support pension – whether the applicant’s impairments are fully diagnosed, fully treated and fully stabilised - whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.

Legislation
Administrative Appeals Tribunal Act 1975 ss 37, 43
Social Security Act 1991 ss 94, 26
Social Security (Administration) Act 1999 ss 17, 1169
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 sch 2 cl 4; s 5, 6, 10, 11

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher and Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

REASONS FOR DECISION

Member W Frost

19 February 2021

INTRODUCTION

1. The Applicant, Mr Damian Evans, is 42 years old and lives in Bundarra, New South Wales. Mr Dignam has multiple medical conditions that give rise to his claim for the Disability Support Pension (DSP), which was made on 20 September 2019 and is the subject of this decision.

2. Mr Evans’ claim for the DSP was rejected by the Department of Human Services, now Services Australia (referred to here as the Agency). In March 2020, an Authorised Review Officer (ARO) affirmed the Agency’s decision to reject Mr Evans’ claim for the DSP and, in May 2020, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) also affirmed this rejection. Mr Evans subsequently applied for review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (Tribunal).

3. The Agency, on behalf of the Respondent, did not consider that Mr Evans was qualified for the DSP at the date of his claim in September 2019, or within the relevant 13 weeks thereafter, because none of his conditions could be assigned an impairment rating to meet the required 20 points in the impairment tables (Impairment Tables) set out in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Determination). The Agency also contended that Mr Evans did not have a continuing inability to work.  

   ISSUE

4. The issue before the Tribunal is whether Mr Evans was qualified to receive the DSP at the date of his claim on 20 September 2019 or within the following 13 weeks.   

   BACKGROUND

5. On 20 September 2019, Mr Evans lodged his DSP claim, that is the subject of this decision, with the Agency.[1] In his claim form, Mr Evans listed his ‘disabilities or medical conditions’ as being: a heart attack resulting in two stents, shortness of breath, depression and anxiety, back pain and arm pain.[2]

   [1] Exhibit R1, T31, pages 170-201.

   [2] ibid., page 196.

6. In October 2019, Mr Evans’ claim for the DSP was rejected by the Agency on the basis of its assessment that his conditions did not amount to an impairment rating of 20 points or more under the Impairment Tables.[3]

   [3] Exhibit R1, T39, pages 214-215.

7. In March 2020, an ARO of the Agency affirmed the rejection of Mr Evans’ DSP claim.[4] The ARO found that Mr Evans’ ischaemic heart disease was permanent but assigned this condition 0 points under the Impairment Tables, because ‘the degree of functional loss experienced is not of sufficient severity to enable the next rating level to be assigned’.[5] Additionally, the ARO determined that Mr Evans’ chronic back pain, depression and anxiety could not be considered permanent.[6]

   [4] Exhibit R1, T46, pages 224-230.

   [5] ibid., page 226.

   [6] ibid.

8. On 13 May 2020, following Mr Evans’ application for review of the ARO decision,[7] the AAT1 affirmed the rejection of Mr Dignam’s DSP claim.[8] The AAT1 found that Mr Evans’ heart condition was not ‘fully stabilised’ and his back pain, anxiety and depression were not ‘fully diagnosed’ and therefore none of these conditions could be assigned any impairment rating under the Impairment Tables.

   [7] Exhibit R1, T47, pages 231-232.

   [8] Exhibit R1, T2, pages 5-9.

9. In June 2020, Mr Evans lodged an ‘Application for Second Review of Decision’ with this Tribunal,[9] which relevantly stated that: ‘I think decision was wrong as they haven’t taken into account information I have provided concerning my back condition. This will be ongoing as it is a permanent condition that has drastically changed my way of life’.[10]

   CONSIDERATION

   [9] Exhibit R1, T1, pages 1-4.

   [10] ibid., page 2.

   What is the qualification period for assessment of eligibility for the DSP?

10. Clause 4(1) in Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act) sets out how to determine the ‘start day’ for a social security payment, as follows:

    If:

    (a)a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b)the person is not, on the day on which the claim is made, qualified for the payment; and

    (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d)the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

11. Pursuant to the above, the Tribunal is required to assess Mr Evans’ DSP claim based on his conditions as at the date his claim was made or within the following 13 weeks.[11] The ‘start day’ for Mr Evans’ claim for the DSP is the day he lodged that claim, which was 20 September 2019, and the 13 week qualification period therefore runs from that date until 20 December 2019. As explained to Mr Evans at the hearing, in accordance with the legislative requirements, if there has been any deterioration or change to Mr Evans’ medical conditions suggesting he may have become qualified for the DSP at a later time (that is, after the end of the qualification period in December 2019), it is irrelevant to the Tribunal’s consideration of his impairments during the qualification period for the purpose of this application and he may seek to make a new claim for the DSP based on the current status of his conditions.[12]

    [11] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7]-[8]; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at 31-33.

    [12] Shi v Migration and Registration Authority [2008] HCA 31 at [144] – [145].

12. As the Tribunal stated in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

13. In this regard, the Federal Court of Australia in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 endorsed the principle, discussed in Harris[13] and Fanning,[14] that medical reports prepared after the qualification period will only be relevant to the extent that they refer to the applicant’s condition during the qualification period.[15]

    [13] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252.

    [14] Fanning and Secretary, Department of Social Services [2014] AATA 447.

    [15] Gallacher and Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

14. Accordingly, the Tribunal can only consider Mr Evans’ eligibility for the DSP within the qualification period commencing on 20 September 2019 and ending on 20 December 2019, assisted by medical information regarding his conditions as they were during that period, not following the end of that qualification period in December 2019.

    What are the qualification criteria for the DSP?

15. Subsection 94(1) of the Social Security Act 1991 (Act) relevantly provides that a person is qualified 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)one of the following applies:

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

16. Plainly, from the terms of the above provision, each element of these qualification criteria must be satisfied for a person to qualify for the DSP.

    The Impairment Tables  

17. The Impairment Tables for the DSP and the rules for their application (Rules) were made by legislative Determination pursuant to subsection 26(1) of the Act. In accordance with section 27 of the Act, the Impairment Tables to be applied by the Tribunal are contained in the Determination, which took effect from 1 January 2012.

18. As noted above in these reasons, under subsection 94(1)(b) of the Act, a person’s impairment must be determined to be 20 points or more under the Impairment Tables. As set out in section 5 of the Rules, the Impairment Tables are: function based rather than diagnosis based; describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.   

19. Section 6 of the Rules sets out how to apply the Impairment Tables when assessing functional capacity and assigning impairment ratings for a person. When applying the Impairment Tables, the impairment ‘must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person’ (subsection 6(1)). The Impairment Tables may only be applied after the person’s medical history has been considered and an impairment rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment ‘is more likely than not, in light of available evidence, to persist for more than 2 years’ (subsections 6(2) and (3) of the Rules).

20. Subsection 6(4) of the Rules provides that a person’s condition is ‘permanent’ if each of the following criteria is met:

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

    (b)the condition has been fully treated;

    (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.

21. Subsection 6(5) of the Rules provides that the following is to be considered in determining whether a condition has been ‘fully diagnosed’ and ‘fully treated’ for the purposes of subsections 6(4)(a) and (b):

    (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.

22. Under subsection 6(6) of the Rules, a person’s condition is ‘fully stabilised’ if:

    (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.  

23. The Rules provide, at subsection 6(7), that ‘reasonable treatment’ is 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.

24. Relevantly, the presence of a diagnosed condition does not necessarily mean there will be an impairment to which an impairment rating can be assigned under the Impairment Tables if the condition has no functional impact on the person, including because there has been appropriate treatment for that condition (subsection 6(8) of the Rules).

25. Subsection 10(1) of the Rules states that table selection from the available Impairment Tables is to be made applying the following steps:

    (a)identify the loss of function; then

    (b)refer to the Table related to the function affected; then

    (c)identify the correct impairment rating.

26. When assigning an impairment rating, section 11 of the Rules provides that:

    (a)an impairment rating can only be assigned in accordance with the rating points in each Table; and

    (b)a rating cannot be assigned between consecutive impairment ratings (example: A rating of 15 cannot be assigned between 10 and 20); and

    (c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and

    (d)a rating cannot be assigned in excess of the maximum rating specified in each Table.

    Was there a physical, intellectual or psychiatric impairment?

27. The Tribunal is satisfied on the evidence before it, including Mr Evans’ medical and related reports regarding his conditions, that Mr Evans had impairments during the qualification period that meet subsection 94(1)(a) of the Act, being that a person ‘has a physical, intellectual or psychiatric impairment’.

28. While the Respondent accepted that Mr Evans suffered impairments so as to satisfy this criterion for qualification for the DSP, the Respondent contended that during the qualification period none of Mr Evans’ conditions could be assigned an impairment rating under the Impairment Tables in order to satisfy subsection 94(1)(b) of the Act, being an impairment ‘of 20 points or more under the Impairment Tables’.

    Do Mr Evans’ conditions attract 20 points or more under the Impairment Tables?

29. The Tribunal considers Mr Evans’ impairments below and whether he can be assigned an impairment rating of 20 points or more in relation to those impairments such as to satisfy subsection 94(1)(b) of the Act.  

    Ischaemic heart disease

30. In relation to Mr Evans’ ischaemic heart disease, while the Tribunal accepts that it was a ‘permanent’ condition during the qualification period, as required by subsection 6(4) of the Rules, based on the evidence submitted to the Tribunal, it is not satisfied that this heart condition can be assigned a rating any higher than 0 points under the Impairment Tables.

31. To this end, the Tribunal sets out the documentary evidence in relation to Mr Evans’ heart condition, as follows:

    (a)In 2014, Dr Chitra Sivaramamoorthy, General Practitioner, reported in a Centrelink Medical Certificate that Mr Evans had ischaemic heart disease which began in 2012. Dr Sivaramamoorthy recorded the current medication used to treat this condition and noted that planned treatment included ‘smoking cessation, exercise, cardiologist review’.[16]

    (b)In February 2016, Associate Professor Lloyd Davis, Consultant Cardiologist, noted that Mr Evans had coronary stents implanted in 2012 following an inferior myocardial infarction and ‘has been doing well from the cardiac viewpoint. He denies cardiovascular symptoms. He walks for at least 30 minutes covering several kilometres on most days. He wakes refreshed.’ Additionally, an ‘exercise stress test was negative for ischemia’. Associate Professor Davis advised that Mr Evans was to remain on aspirin indefinitely and repeat a cardiac review in 2 years.[17]

    (c)In November 2018, Dr Alaa El-Smadi, General Practitioner, reported that Mr Evans’ heart condition was asymptomatic, did not ‘seem to have any impact currently’, although ‘annual follow up’ was required. Dr El-Smadi also observed Mr Evans had a ‘low fitness level’ and became tired easily from ‘manual labour duties’.[18]

    (d)In December 2018, Dr Chitra Sivaramamoorthy, General Practitioner, reported to Associate Professor Davis that Mr Evans was prescribed the following medications: Aspirin, Atorvastatin, Glyceryl Trinitrate, Metoprolol Tartrate, and Ramipril.[19]

    (e)On 9 September 2019, Dr Sivaramamoorthy reported to Associate Professor Davis that there had been no change to Mr Evans’ medication since December 2018.[20]

    (f)Between October 2019 and April 2020, part of which time was during the qualification period ending on 20 December 2019, Dr Sivaramamoorthy reported in Centrelink Medical Certificates that Mr Evans has ischaemic heart disease with a stent in his left circumflex artery. The heart condition is described as permanent and stable, but no symptoms are listed. The planned treatment for this condition is listed as ‘medication, cardiologist’.[21]

    (g)On 13 May 2020, Mr Evans gave oral evidence to the AAT1 that he rarely has chest pains, can walk for 4 to 5 minutes but is limited by shortness of breath and back pain, he is able to drive, go shopping and climb a few stairs and can do most housework but is limited by his back pain.[22]

    [16] Exhibit R1, T6, page 126.

    [17] Exhibit R1, T8, pages 133-134.

    [18] Exhibit R1, T15, pages 141-143.

    [19] Exhibit R1, T17, pages 146-147.

    [20] Exhibit R1, T30, pages 168-169.

    [21] Exhibit R1, T41, page 219; T44, page 222; T45, page 223; and T49, page 234.

    [22] Exhibit R1, T2, page 8.

32. The report by Associate Professor Davis from February 2016 indicates that Mr Evans’ heart condition had limited or no functional impact upon activities requiring physical exertion or stamina. In addition, Mr Evans’ general practitioner, Dr Sivaramamoorthy, did not identify a physical impairment arising from his heart condition during the qualification period. The AAT1 also took evidence from Mr Evans that his limited physical stamina was caused from other conditions, being back pain and shortness of breath. There is no corroborated evidence of the functional impact on Mr Evans as a result of his heart condition during or after the qualification period. Mr Evans told this Tribunal that two or three months ago he had attended a heart specialist and was now on a ‘different set of medication’, but there was no associated documentary evidence provided to the Tribunal at or before the hearing of this proceeding in relation to this submission.

1. As a result, while the Tribunal accepts that Mr Evans’ heart condition was permanent as at the qualification period, and has been stable since 2016, based on the evidence regarding the functional impact of this condition, it is not satisfied that Mr Evans’ heart condition can be assigned any higher rating than 0 points under the Impairment Tables, relevantly Table 1, for ‘Functions requiring Physical Exertion and Stamina’, which includes cardiac impairment. The Tribunal is satisfied that, during the qualification period in late 2019, the evidence demonstrates there was no functional impact on Mr Evans’ ability to undertake activities requiring physical exertion or stamina, such that 0 points is the only available rating of his heart condition.    

   Back pain

2. In relation to Mr Evans’ back condition, the Tribunal is satisfied that it was ‘fully diagnosed’ as at the qualification period in accordance with subsection 6(4)(a) of the Rules. However, based on the evidence submitted to the Tribunal, it is not satisfied that this condition was ‘fully treated’ and ‘fully stabilised’ during the qualification period as required by subsection 6(4)(b) and (c) of the Rules.

3. To this end, the Tribunal sets out the documentary evidence in relation to Mr Evans’ back pain, as follows:

   (a)In November 2018, Dr El-Smadi, General Practitioner, recorded that Mr Evans’ ‘chronic non specific low back pain’ commenced in 2012, but had not yet then been managed. The current treatment was listed as Panadol, with medication and physiotherapy planned.[23]

   (b)In September 2019, Mr Evans was referred to a Physiotherapist for three sessions.[24]

   (c)On 13 September 2019, just before the qualification period, Dr Craig Harris, Radiologist, following a CT scan reported ‘[r]ight-sided L5 pars defect with further defect of the left lamina/spinous process junction, with minor hypertrophic new bone formation, potentially causing lower back pain. There is no anterolisthesis or neural impingement in relation to these changes…. Minor disc bulging L4/S’.[25]

   (d)On 22 October 2019, which was during the qualification period, Dr Sivaramamoorthy reported in a Centrelink Medical Certificate that Mr Evans’ current treatment for chronic back pain was analgesics and physiotherapy. Future planned treatment included analgesics, physiotherapy and rheumatologist review.[26]

   (e)On 25 November 2019, during the qualification period, Dr Sivaramamoorthy reported in a Centrelink Medical Certificate that Mr Evans’ current and future treatment was unchanged from last month, but under planned treatment it was noted that he was ‘now referred to Neurosurgical clinic, Westmead hospital’.[27]

   (f)In February and April 2020, being after the qualification period, Dr Sivaramamoorthy reported in two separate Centrelink Medical Certificates that Mr Evans had experienced a recent aggravation of his symptoms.[28]

   (g)In March 2020, Dr Stu, Rheumatology Registrar for Dr Lau, reported that they had seen Mr Evans and ‘understand he has been doing stretching exercises for his back pain. Could we please incorporate core-strengthening exercises to his program’.[29]

   (h)On 13 May 2020, Mr Evans provided evidence to the AAT1 that he has never seen a spinal surgeon, is able to drive and sit in a chair for 30 minutes, lift his arms above his head and can usually pick up an object from a coffee table but not the floor.[30]

   [23] Exhibit R1, T15, page 142.  

   [24] Exhibit R1, T29, page 167.

   [25] Exhibit R1, T35, pages 206-207.

   [26] Exhibit R1, T41, page 219.

   [27] Exhibit R1, T44, page 222.

   [28] Exhibit R1, T45, page 223; T49, page 234.

   [29] Exhibit R2, ST1, page 290.

   [30] Exhibit R1, T2, pages 8-9.

4. On the evidence before the Tribunal it is not satisfied that, as at the end of the qualification period in December 2019, Mr Evans’ back condition was ‘fully treated’ or ‘fully stabilised’, including because he had not completed all reasonable treatment in accordance with subsections 6(6) and (7) of the Rules. Mr Evans was referred to a neurosurgeon during the qualification period. There was no evidence before the Tribunal that Mr Evans had  completed reasonable treatment with a neurosurgeon. Moreover, following the end of that qualification period in December 2019, Mr Evans experienced an aggravation of his symptoms, was referred to specialists for further treatment and received recommended exercises after a rheumatological review. Additionally, Mr Evans told this Tribunal that he had seen specialists ‘in the last 6 months’ for his back condition, which may have included a spinal surgeon, and described his pain being due to having ‘an extra bone that’s growing out from the lower limb bone’ and a ‘slipped disc’. Mr Evans said this gives him ‘grief’, but at the moment there was no surgery recommended and there was ‘nothing they can do about it’. Mr Evans said it was ‘very hard’ to exercise, including due to his heart condition. This further indicates that Mr Evans’ condition was neither ‘fully treated’ nor ‘fully stabilised’ during the qualification period ending in 2019. Additionally, there was no documentary evidence of these recent medical appointments in relation to Mr Evans’ back condition. For these reasons, the Tribunal finds that Mr Evans’ back condition was not ‘permanent’, as defined by subsections 6(3) and (4) of the Rules, and it cannot assign an impairment rating for this condition under the Impairment Tables.

   Anxiety and depression

5. In relation to Mr Evans’ anxiety and depression, the Tribunal is not satisfied that it was ‘fully diagnosed’ as at the qualification period because the condition had not been diagnosed by a clinical psychologist or psychiatrist as required by ‘Table 5 - Mental Health Function’ in the Impairment Tables and subsection 6(4)(a) of the Rules. To this end, the Tribunal sets out the documentary evidence in relation to Mr Evans’ anxiety and depression, as follows:

   (a)In November 2018, Dr Sivaramamoorthy, General Practitioner, reported in a Centrelink Medical Certificate that Mr Evans’ condition of ‘depression’ was temporary, expected to last ‘3-12 months’ and planned treatment included medication, cognitive behavioural therapy and counselling.[31]

   (b)In November 2018, Dr El-Smadi, General Practitioner, reported that Mr Evans suffered ‘major depressive disorder’, was currently on medication and planned treatment was a mental health plan and psychological counselling.[32]

   (c)On 4 November 2019, which was during the qualification period, Dr Sangeeta Jain, Psychologist, reported that Mr Evans had the previous month been referred to her under a mental healthcare plan for ‘management of depression and anxiety symptoms’. Dr Jain stated that Mr Evans had been suffering from depression and anxiety for the ‘last 2 years’ and that this has ‘impacted significantly in his life style choices’. Dr Jain accordingly recommended that Mr Evans receive ongoing psychological consultations.[33]

   (d)On 13 May 2020, the AAT1 reported that Mr Evans then no longer took antidepressant medication.[34]

   [31] Exhibit R1, T12, page 138.

   [32] Exhibit R1, T15, page 141-143.

   [33] Exhibit R1, T42, page 220.

   [34] Exhibit R1, T2, page 9.

6. At the hearing of this proceeding, Mr Evans told the Tribunal that he has insufficient funds to see a clinical psychologist or psychiatrist as required under the Impairment Tables and Rules. However, Mr Evans said that he was waiting for an appointment with a psychologist due to the limited number of subsidised sessions a person can access in a certain period of time.   

7. Based on the evidence, the Tribunal is not satisfied that, as at the qualification period, Mr Evans’ mental health conditions of anxiety and depression had been diagnosed by a clinical psychologist or psychiatrist. Accordingly, the Tribunal finds that this condition was not permanent and it therefore cannot be assigned a rating under the Impairment Tables.

   Arm pain

8. In relation to Mr Dignam’s claimed arm pain, the Tribunal is not satisfied that it was ‘fully treated’ and ‘fully stabilised’ as at the qualification period as required by subsection 6(4)(b) and (c) of the Rules. To this end, the Tribunal notes that in November 2018, Dr El-Smadi, General Practitioner, diagnosed Mr Evans with ‘left tennis elbow’ which began in October 2018, but had not been managed or investigated. Dr El-Smadi stated that planned treatment entailed physiotherapy, analgesia and possibly an ultrasound with guided steroidal injection.[35] There was no medical evidence before the Tribunal of this treatment having been completed by the end of the qualification period, or the level of functional impairment occurring during the qualification period. Accordingly, the Tribunal finds that this condition was neither ‘fully treated’ nor ‘fully stabilised’ as required under subsection 6(4)(b) and (c) of the Rules.

   [35] Exhibit R1, T15, page 142.

   Kidney cyst

9. In relation to Mr Evans’ renal cyst, based on the evidence submitted to the Tribunal it is not satisfied that this condition was ‘fully treated’ and ‘fully stabilised’ as at the qualification period and required by subsections 6(4)(b) and (c) of the Rules. To this end, the Tribunal notes that in October 2019, which was during the qualification period, Dr Sivaramamoorthy, General Practitioner, in a referral letter to Dr Mohan Arianayagam, Urological Surgeon, advised that Mr Evans had undergone a renal cyst scan of his left kidney.[36] A Health Summary Sheet from August 2020 lists Mr Evans’ current active problems, including ‘[c]omplex renal cyst left kidney’.[37] In September 2020, Dr Arianayagam opines that an ultrasound demonstrates Mr Evans has a cyst in his left kidney and the condition is to be observed ‘for the time being’ with a further ultrasound in one year.[38] Based on this evidence, Mr Evans’ renal cyst was still being investigated as at the qualification period and the Tribunal is not satisfied that this condition was ‘permanent’ pursuant to subsection 6(3) and (4) of the Rules. Accordingly, the Tribunal cannot assign an impairment rating to this condition under the Impairment Tables.

   [36] Exhibit R2, ST1, pages 282-283.

   [37] Exhibit R2, ST1, pages 287-289.

   [38] Exhibit R2, ST2, page 293.

   CONCLUSION

10. Mr Evans made his claim for the DSP in September 2019. Although Mr Evans’ present circumstances are such that a different outcome may be reached if he lodged a new DSP claim with the Agency, for the purpose of the current review before the Tribunal, it must apply the terms of the Act and the Rules to his DSP application from September 2019 and throughout the qualification period ending over one year ago on 20 December 2019.

11. As a result, and based on the evidence set out above in these reasons, the Tribunal finds that during the qualification period Mr Evans could not be assigned any impairment rating under the Impairment Tables for any of his conditions. Mr Evans’ claim for the DSP before the Tribunal therefore fails to satisfy subsection 94(1)(b) of the Act requiring an impairment rating of 20 points or more under the Impairment Tables.

12. Because the Tribunal has found that Mr Evans did not have a total impairment rating of 20 points or more under the Impairment Tables, given the conjunctive nature of subsection 94(1) of the Act, requiring each element to be met by an applicant, the Tribunal is not required to consider whether Mr Evans had a ‘continuing inability to work’ pursuant to subsection 94(1)(c), in order to determine whether he meets this subsequent element of the DSP qualification criteria.

13. Accordingly, for the foregoing reasons, Mr Evans’ application before this Tribunal is unsuccessful. This does not diminish the nature of the conditions suffered by Mr Evans but rather is a finding by the Tribunal that the requisite legislative criteria has not been met. As the Tribunal has noted, Mr Evans is at any time able to make a new claim for the DSP with the Agency, accompanied by contemporaneous evidence regarding his conditions and associated treatment.

    DECISION

14. The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the AAT Act.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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

Associate

Dated: 19 February 2021

Date of hearing:	10 February 2021
Applicant:	By telephone
Solicitor for Respondent:	Mr Allan Quanchi, Services Australia