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

Fardell and Secretary, Department of Social Services (Social services second review) [2018] AATA 340 (26 February 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4840
Re:Alwyn Fardell
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:26 February 2018
Place:Canberra

The Tribunal affirms the decision under review.
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Deputy President J Sosso
Catchwords
SOCIAL SECURITY – disability support pension – whether Applicant’s conditions attract 20 points or more – whether conditions fully diagnosed, treated and stabilised – whether conditions permanent – impairment ratings – continuing inability to work – decision under review affirmed.
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President J Sosso
26 February 2018
INTRODUCTION

Mr Alwyn Fardell, (the Applicant), seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) of 19 July 2017 (T2, p.7) which affirmed the decision of the Department of Human Services (the Department) dated 1 February 2017 to reject the Applicant’s application for the disability support pension (the DSP).
On 4 February 2016 the Applicant lodged a claim for the DSP – T39 p.297.
The Applicant was born in 1960 and was 55 years of age when he first lodged his claim. He recorded the following disabilities and injuries (T39 p.293):
“Blackouts, diziness (sic), vomiting (regularly), migraines, Insomnia, torn left shoulder, heart problems, difficulty breathing, shaky hands, bad knees, hip & ankle (left), arthiritis (sic), stress fracture (Back), Bad nerves.”
The Applicant noted his most recent employment was with “Electrolux” between 2 June 1981 and 5 July 2005 – T39 p.294.
In response to a letter from Centrelink dated 12 February 2016 requesting more information, the Applicant provided a series of medical reports from various medical practitioners.
In a medical report of Dr Mark Perko dated 29 February 2016 it was observed that the Applicant -T42 p. 301:
“has not had any gainful employment since leaving his job ten years ago…
Examination identifies a painful arc on the left with subacromial signs and tuberosity tenderness. He had a small lipoma on the posterior aspect of the shoulder at the acromial angle. The right shoulder demonstrates a mild degree of motion restriction with end range pain.
Radiographs do not show any significant joint degenerative changes of either gleno-humeral joint. He has tuberosity prominence and reactive changes consistent with subacromial impingement from a rotator cuff disorder.”
Dr Perko concluded that the Applicant is “managing symptoms with activity changes and analgesics when required” and opined “I would not expect that his employment status will change in the future” – p.301.
On 29 February 2016, Dr Ky McGrillen of The Mater Clinic identified- T41 p. 300: No significant degenerative change at the glenohumeral joint” on the right or left shoulders.
Both Dr May El-Khoury on 23 May 2016 (T44 p.304) and Dr Thim Chen on 30 May 2016 (T45 p.305) submitted medical reports in which they expressed their belief that the Applicant was entitled to DSP, but did not explain in any detail why they thought so.
The Applicant was involved in a motor vehicle accident on 28 May 2004 “when he was run into by a motor car while riding his bicycle. He apparently flew over the bonnet, striking the windscreen and landing on the concrete on the roundabout on the other side… He was taken by ambulance with a collar on his neck and on a fracture board under him with a presumed injury to his back, to Orange Base Hospital” – T13 p.130.
On 11 August 2010, the Applicant started receiving Carer Payments in respect of the significant daily care that he provided for his mother – T77 p.401. On 12 May 2016, Carer Payments ceased as his mother had entered aged care – p.401.
A Job Capacity Assessment was performed on 15 June 2016. The Assessor submitted a report to the Department on 12 July 2016 – T46, p 306.
The Assessor made the following recommendations:
(a)the Applicant had a fully diagnosed, treated and stabilised Shoulder and Upper Arm Disorder in relation to the left shoulder. This attracted 0 impairment points under Table 2 of the Impairment Tables on the basis that it did not affect the Applicant’s ability to function.
(b)the Applicant’s Capacity for work within 2 years with Intervention was 15-22 hours per week.
On 13 July 2016, the Applicant’s claim was rejected by the original decision-maker – T48 p.315, and that decision was affirmed by the Authorised Review Officer (the ARO) on 1 February 2017 – T64 p.346.
The ARO made the following findings of fact – T64 p. 347:
·     your conditions of depression, rotator cuff disorder, chronic pain, osteoarthritis in bilateral knees, and mild sleep apnoea are not accepted as being permanent as they have not been fully treated and stabilised.
·     Your total impairment rating is nil.
·     You do not have an impairment rating of 20 points or more.
·     You do not have a severe impairment,
·     You have not actively participated in a program of support.
·     You do not have a continuing inability to work 15 works per week or more because of your impairment.
The AAT1 was constituted by Member Halstead. He found that s 94(1)(a) of the Social Security Act 1991 (the Act) was satisfied as the Applicant had an impairment at the time he made his claim – T2 p.8. However, Member Halstead found that the Applicant provided insufficient evidence about his current medical circumstances and, therefore, an impairment rating for the purposes of s 94(1)(b) of the Act could not be assigned. Consequently, he found that the Applicant was not qualified for the DSP at the date of his claim.
The Applicant participated in the hearing of 21 February 2018 by teleconference. He was self-represented. The Respondent was represented by Mr Jonathon Tsianikas, Government Lawyer of the Department.
ISSUES
Set out in the Secretary’s Statement of Facts, Issues and Contentions (SFIC) dated 24 January 2018 – para 3, are the issues to be determined in this matter. As they accurately state the task presently required of the Tribunal I set them out below:
The issue for determination in this matter is whether the Applicant, Mr Fardell, was qualified to receive Disability Support Pension (DSP) on the day of his claim, 5 February 2016, or within 13 weeks of that day, ending on 7 May 2016 (the qualification period).
This requires consideration of whether, during the qualification period, the Applicant had:
(a)a physical, intellectual, or psychiatric impairment;
(b)an impairment rating of at least 20 points when assessed under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)a continuing inability to work.
THE LEGISLATION
To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Act. So far as is relevant, they are:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairments is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Impairment Tables are located in the Determination, which was made pursuant to section 26 of the Act and came into force on 1 January 2012.
Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clauses 5(2) and (3). Importantly, Clause 5(2) explains that the that the Tables are function based rather than diagnosis based (Cl 5(2)(b)), and describe functional activities, abilities, symptoms and limitations – Cl 5(2)(c). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions – Cl 5(2)(d).
The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).
An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).
To be a permanent condition it must be:
(a)fully diagnosed by a medical practitioner;
(b)fully treated;
(c)fully stabilised; and
more likely than not, to persist for more than two years – Cl 6 (4).
In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).
A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).
A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.
This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:
“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 of 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 preferred 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.”
CONSIDERATION
Introduction
The Respondent concedes (SFIC para 20) that the Applicant had impairments for the purposes of s 94(1)(a) of the Act. The Applicant, in the course of the hearing, did not dispute the Respondent’s presentation of the facts and the medical evidence before the Tribunal. Furthermore, at the hearing, the Applicant did not give oral evidence but actively participated in the proceedings.
Upper Limb Conditions
The Respondent accepts that the Applicant had a fully diagnosed, treated and stabilised condition of chronic pain in his shoulders, neck and back during the qualification period. Further, it is also accepted that the chronic pain condition is permanent, and can be rated under “Table 2 – Upper Limb Function” of the Impairment Tables.
This concession was appropriate, given the history of the Applicant’s medical condition ever since his motor vehicle accident in 2004.
Dr Max Ellis, in his medical report dated 8 June 2005, noted (T5 p.92):
“Neck pain continues spreading to both shoulders to the left arm and hand and there is numbness and paraesthesiae in his left hand intermittently… Lifting aggravates the pain in his neck and shoulders and arm, his left arm is weak…”
He also noted that the Applicant: “suffered also a traumatic capsulitis of his left shoulder identified in the ultrasonic scan with painful restriction of movement in the left shoulder” – T5 p.93.
In her medical report of 12 April 2006, Dr Sophia Lahz stated that after his accident, the Applicant “spent three months off work on suitable duties. During this time, he was in ‘severe pain all over the body’ most notably the left shoulder, mid back and left groin…” – T10 p.105. She also reported that: “He has consulted Dr Mark Perko, a shoulder surgeon about his painful left shoulder. According to Mr Fardell, the doctor has mentioned a ‘tendon tear’ and advised physiotherapy and painkillers…” – T10 p.106. She concluded that: “It is nearly two years since the subject motor accident, and the injuries sustained in the subject motor accident can be considered stabilised” – T10 p.122.
Dr Peter Burgess, in his report of 21 June 2006, noted (T13 p.133) that the “pain in [the Applicant’s] shoulders he says is in the upper medial scapular muscles on both sides, more particularly on the left” – p.133. Dr Burgess also noted that the Applicant’s “current treatment for pain is Oxycontin one a day” – p.133.
Dr Burgess observed that the Applicant “needs employment that avoids specific stresses on his neck, his back, his left shoulder…” – p.139. He said, in relation to treatment, “that the major treatment is to continue his analgesia and his anti-depressant but I would not consider him a case for surgery in any areas until he had given up his job for a minimum of three months…” – T13 p.129.
Dr Richard Cranswick in his report of 30 October 2006 noted that the Applicant reported “severe unremitting pain” and was “apparently unresponsive to Oxycontin” – T14 p.144. He diagnosed a “general, nonspecific chronic illness and whether this is related to psychological disturbance, continuing pain and/or physical disturbance is unclear.” (p 144).
In a report dated 29 January 2007, Dr Ellis noted that the Applicant continued to perform his normal duties at work but “his future employment in normal duty work is under considerable doubt” – T17 p.152.
Dr Lahz opined, in her report dated 28 April 2008 (T27 p.217), that the Applicant’s “Left shoulder injury” had stabilised – T27 p.216.
In a report dated 26 September 2007, the Applicant’s General Practitioner, Dr Peter Holmes, wrote that the left shoulder injury caused “Pain” and a “reduced range” of movement – T37 p.259. The condition was treated with Oxycontin.
More recent medical reports state that the Applicant’s upper limb conditions have not, on the whole, changed.
Dr Perko observed that examination of the Applicant revealed “a painful arc on the left with subacromial signs and tuberosity tenderness.” He recommended the continued use of “analgesics” – T42 p.301.
Dr Claire Sui reported on 25 January 2017: “wide spread pain affecting almost all his joints, particularly his left shoulder…” – T63 p.344. She stated that the Applicant: ”gave a list of pain that he had, which basically included all the joints in the limbs and his back and neck” – p.344. The Applicant also told Dr Sui that he had been on Oxycontin for “more than 10 years with current dose of 20mg tds”– T63 p.344.
On 8 February 2017, Dr Perko reported that the Applicant had “chronic shoulder, neck and back pain” treated with “strong analgaesics” (sic). The Applicant had “received treatment from a number of practitioners with a pain management programme”.
The Job Capacity Assessor (JCA) met the Applicant on 15 June 2016. The JCA observed (T46 p.308) in relation to the Applicant’s “Shoulder and Upper Arm Disorder” (p.308):
“This condition is considered fully diagnosed as medical evidence indicates that diagnosis is confirmed by imaging and an Orthopaedic Surgeon.
This condition is considered fully treated and stabilised as medical evidence indicated that no further treatment recommended that is likely to significantly improve with client’s functional capacity within the next 2 years.”
The Assessor recommended a rating of zero points because the Applicant “can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.”
Under Table 2 of the Impairment Tables a person’s condition has a mild functional impact on activities using hands or arms if they can manage most daily activities, but have difficulty with “most” of the following:
(a)Picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)Handling very small objects (e.g. coins);
(c)Doing up buttons;
(d)Reaching up or out to pick up objects.
If a person has difficulty doing most of the above-mentioned activities, 5 points may be assigned.
A person’s condition has a “moderate” functional impact on activities using hands and arms if they have difficulty with “most” of the following:
(a)picking up a 1 litre carton full of liquid;
(b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)holding and using a pen or pencil;
(d)doing up buttons or tying shoelaces;
(e)using a standard computer keyboard;
(f)unscrewing a lid on a soft-drink bottle.
If a person has difficulty doing most of the above-mentioned activities, 10 points may be assigned.
No evidence relevant to the current qualification period (5 February 2016 – 7 May 2016) has been presented to show that the Applicant has difficulty with any of the above-mentioned activities. Table 2 requires that “There must be corroborating evidence of the person’s impairment”. Furthermore, it provides that:
“Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
·a report from the person’s treating doctor;
·a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
·a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the function impact;
·results of diagnostic tests (e.g. X-Rays or other imagery);
·results of physical tests or assessments.
In the absence of such evidence no impairment rating can be assigned in relation to the Applicant’s upper limb conditions.
Chronic Pain Condition
The Respondent concedes (SFIC para 45) that the Applicant’s chronic pain condition is fully diagnosed, treated and stabilised, and contends that the functional impairments arising from these conditions can be rated under “Table 4 – Spinal Function” under the Impairment Tables. Given the Applicant’s medical history outlined above, the concession is appropriate as is the identified Impairment Table.
Subsection 6(9) of the Tables contains matters which must be considered by a decision-maker when assessing pain. Paragraph 6 (9)(b) provides that:
“chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected…”

Under Table 4 a person’s condition has a “mild” functional impact on activities involving spinal function if “The person has some difficulty in:
(a)activities over head height (e.g. activities requiring the person to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning their trunk or moving their head (e.g. to look to the sides or upwards).”
One of these indicators must be satisfied for five impairment points to be assigned.
Furthermore, under Table 4 a person’s condition has a “moderate” functional impact on activities involving spinal function if “(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
If any of these conditions are satisfied, then a person may be assigned 10 points under Table 4.
The Applicant has provided no evidence in relation to the current qualification period to show that he meets some of the conditions set out in Table 4. Table 4 provides that “Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
·a report from the person’s treating doctor;
·a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
·a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
Again, in the absence of such evidence no impairment rating can be assigned in relation to the Applicant’s chronic pain condition.
Mental Health Conditions
Although the Respondent accepts (SFIC para 59) that the Applicant had a fully diagnosed mental health condition in the qualification period, it does not accept that this condition was fully treated and stabilised.
At the Hearing, Mr Tsionikas re-iterated many of the points made in the Respondent’s SFIC. Set out in paras 58.1 – 58.7 of the SFIC is the evidence concerning the Applicant’s mental health condition. As they capture the essential points necessary for my present purposes, and because the Applicant indicated that he did not disagree with Mr Tsionikas’ summary of the relevant facts and medical evidence, I set them out here:
·“In a report dated 15 July 2008, medical assessor Dr Permegiani diagnosed the Applicant with “chronic post-traumatic stress disorder” and “major depressive episode.” He considered that improvement could occur within six months if the Applicant accessed appropriate treatment including counselling and clinical behavioural therapy (T31, p 241). According to the AHPRA register of practitioners, Dr Permigiani is a psychiatrist (Attachment D).
·On 18 August 2016, consultant psychiatrist Dr Khanbhai wrote to Dr Holmes noting the Applicant’s guilt and other stressors surrounding his mother’s entry into aged care in December 2015. The Applicant reported his mood and function had “deteriorated in the last few months”. Dr Khanbai’s impression was of “borderline intellectual impairment”, “adjustment disorder”, “chronic pain syndrome” and “cannabis dependence”. He made recommendations accordingly, including psychological intervention (T50, p 318).
·On 29 September 2016, Dr Khanbai wrote to Dr Holmes for a second time. The Applicant’s mental state was the same and was affected by the stress of looking for work. Dr Khanbai observed that the Applicant had not been referred to a psychologist yet (T53, p 326).
·On 10 November 2016, Dr Holmes made a GP mental health care plan (T58, p 333).
·On 16 February 2017, consultant psychiatrist Dr Kumar observed that the Applicant’s “affect [was] quite engaging and bright”. Dr Kumar considered that the Applicant had “adjustment disorder” and recommended ongoing psychological treatment (T68, p 357).
·In a report dated 20 February 2017, clinical psychologist Ms Harris stated that she saw the Applicant on 3 January 2017 and 17 January 2017 and he refused to attend again unless she wrote a supportive letter for DSP. The Applicant presented as “highly pain-focused and embracing the sick role.” Her diagnosis was “somatic symptom disorder”. She considered the Applicant to be “largely disengaged from treatment at present” and recommended six sessions of clinical behavioural therapy in order to reduce health-related anxiety.
·On 22 June 2017, consultant psychiatrist Dr Kumar wrote that the Applicant reported that his depressive symptoms had been exacerbated by the recent death of his mother. Dr Kumar observed a “euthymic affect” and “disengagement from psychological treatment.””
Furthermore, Dr Belinda Harris, in her medical report dated 20 February 2017, notes (T70 p.362):
“Treatment Plan:
I have recommended to Mr Fardell that he attend the remainder of the 6 sessions of psychological treatment available to them under a Mental Health Care Plan.
Mr Fardell has shown low motivation to attend treatment for the purpose of psychological change or to improve his situation, and has rather focused on receiving a disability pension and/or financial recompense. He has largely disengaged from treatment at present. Mr Fardell’s prognosis is guarded, given the chronicity of his presentation, his low motivation for change, disengagement from treatment, and embrace of the sick role.
Summary of Recommendations:
·Should Mr Fardell be willing to engage, 6 sessions of cognitive behavioural therapy would be recommended, aimed at reducing health related anxiety. Given the severity and chronicity of Fardell’s presentation, further sessions are likely to be required.
·I am in agreement that, in the absence of psychological change, Mr Fardell is currently unlikely to be fit for paid employment and job seeking.”
The medical evidence highlights that psychological treatment was suggested by all of the Applicant’s treating practitioners. The Respondent submits that this was reasonable treatment which was expected to result in significant functional improvement to the Applicant.
As stated above, a condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. This has not been fulfilled here. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6). No evidence was produced to suggest that this situation applies here.
Therefore, it is clear that the Applicant’s condition was not fully treated and stabilised during the qualification period, and impairment points may not be assigned under Table 5. For this reason, it is not strictly necessary to consider how many impairment points may be assigned under Table 5.
However, if the Applicant’s condition in the future became fully diagnosed, treated and stabilised, then the condition would have to have a functional impact on the his activities in order for points to be assigned under the Impairment Tables.
Under Table 5 a person’s condition would have a “mild” functional impact on their activities involving mental health function if:
“The person has mild difficulties with most of the following:
(a)self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b)Social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d)concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e)Behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities
(f)Work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.”
If a person has difficulty with most of the above activities, then 5 points can be assigned to that person.
However, Table 5 also provides that “There must be corroborating evidence of the person’s impairment.” It adds, “Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
·a report from the person’s treating doctor;
·supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
·interviews with the person and those providing care or support to the person.”
Therefore, if a person wishes to rely on Table 5 for the assignment of impairment points, there must be corroborating evidence of functional impairment consistent with the examples above.
Overall Impairment Rating
In the absence of any evidence, the Tribunal is unable to assign any points to the Applicant under Tables 2 or 4 of the Impairment Tables.
ACTIVE PARTICIPATION IN A PROGRAM OF SUPPORT
As the Applicant has not met the requirements of s 94(1)(b) of the Act, it is not necessary to consider the question of whether the Applicant has actively participated in a Program of Support. I would only add that if a person cannot be assigned 20 points under a single impairment table, in other words, if a person does not have a severe impairment under one of the Impairment Tables, then that person must have actively participated in a POS before he or she can be found to have continuing inability to work.
CONTINUING INABILITY TO WORK
Since the Tribunal cannot be satisfied that the Applicant has met the requirements of s 94(1)(b) of the Act, it is not necessary to consider the question of whether the Applicant has a continuing inability to work.
DECISION
The decision under review is affirmed.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

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Associate
Dated: 26 February 2018

Date(s) of hearing: 21 February 2018

Applicant: In person

Solicitors for the Respondent: Mr Jonathon Tsianikas, Department of Human Services

[2018] AATA 340

26 February 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Appeal

Date(s) of hearing:	21 February 2018
Applicant:	In person
Solicitors for the Respondent:	Mr Jonathon Tsianikas, Department of Human Services