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

Farinaccio and Secretary, Department of Social Services (Social services second review) [2021] AATA 3292 (13 August 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0381
Re:Annette Farinaccio
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member
Date:13 August 2021
Place:Perth

The reviewable decision, being the decision of the AAT1 dated 2 December 2019, is affirmed.
...............[Sgd].........................................................
L M Gallagher, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – assigning impairment ratings – continuing inability to work – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5)
Social Security (Administration) Act 1999 (Cth) – Sch 2 cl 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 5(2), 6(3), 6(4) – 6(7), 6(8), 8(1), 8(2), 10(1)
Social Security (Active Participation for Disability Support Pension) Determination 2014 ss 5, 7(2), 7(3) – 7(5)
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Gallacher v Secretary, Dept of Social Services [2015] FCA 1123
Larkin and Secretary, Department of Social Services [2018] AATA 342
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
SECONDARY MATERIALS
Department of Social Services, ‘Guides to Social Policy Law’ Social Security Guide (online guide version 1.281, 9 August 2021) chapters 3.6.2 and 3.6.3 < FOR DECISION
L M Gallagher, Member
13 August 2021
BACKGROUND

On 26 October 2018, Ms Farinaccio lodged a claim for Disability Support Pension (DSP) with the (then) Department of Human Services (now, the Agency[1])[2].
[1]The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known, as the ‘Department of Human Services.’
[2]R2, T51.
Following an assessment of DSP medical eligibility on 10 December 2018, the Agency deemed that the medical conditions presented, being Ms Farinaccio’s:
(a)cardiac arrhythmias (supraventricular tachycardia or SVT);
(b)Cushing’s syndrome;
(c)multiple systems atrophy; and
(d)
adrenal tumours (adrenal gland adenoma and pituitary microadenoma)

(together, the Claimed Conditions)[3],
did not appear to meet the eligibility criteria required, in order for Ms Farinaccio to proceed to an employment services assessment, on the basis that she was ‘manifestly medically ineligible’.[4]
[3]The Claimed Conditions also include Ms Farinaccio’s left and right knee conditions (see [5] below), her mental health condition, her visual impairment, left shoulder injury, carpal tunnel syndrome and her fibromyalgia.
[4]R2, T54, p274. Refer further to topic 3.6.2.20 of the Guides to Social Policy Law: Social Security Guide (the Guide) regarding manifest grants and rejections for DSP and reasons for manifest eligibility and ineligibility.
On 26 October 2018, the Agency rejected Ms Farinaccio’s claim for DSP on the basis that she did not have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) (the Impairment Tables) (the Original Decision).[5]
[5]R2, T55.
On 4 January 2019, Ms Farinaccio requested an internal review of the Agency’s decision.[6]
[6]R2, T74, p 368.
On 12 May 2019, a Job Capacity Assessment (JCA) Report was submitted to the Agency, following a telephone assessment of Ms Farinaccio on 15 April 2019 by a registered occupational therapist (OT).[7] The OT also assessed Ms Farinaccio’s lower limb deficiencies, being her left and right knee conditions.[8]
[7]R2, T58.
[8]R2, T58, p 284.
On 25 June 2019, at the Agency’s request, the Health Professional Advisory Union (HPAU) provided an opinion regarding her claimed conditions.[9]
[9]R2, T60; as to whether Ms Farinaccio’s conditions are FDTS and, if so, which impairment rating would apply.
On 28 June 2019, an Authorised Review Officer (ARO) of the Agency affirmed the Original Decision.[10]
[10]R2, T61.
On 10 September 2019, Ms Farinaccio applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the ARO’s decision dated 28 June 2019.[11]
[11]R2, T65.
On 2 December 2019, the Tribunal’s Social Services & Child Support Division (AAT1) affirmed the ARO’s decision dated 28 June 2019 on the basis that Ms Farinaccio’s claimed conditions were either not fully diagnosed, fully treated and fully stabilised (FDTS) or were FDTS but did not cause the necessary functional impairment (the Reviewable Decision).[12]
[12]R2, T2.
On 22 January 2020, Ms Farinaccio applied to the Tribunal’s General Division for a review of the Reviewable Decision (R1, T1).
RELEVANT LEGISLATION AND GENERAL PRINCIPLES
The statutory principles relevant to Ms Farinaccio’s application are contained in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act 1999 (Cth) (the Administration Act), the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
The Guide to Social Policy Law: Social Security Guide (the Guide) assists those who administer the Act. The Tribunal, whilst not bound to apply policy guidelines, will usually do so unless there are cogent reasons in a particular case for not doing so.[13]
[13]Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–645.
The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies.[14]
[14]Section 3.6.3 of the Guide.
Qualification criteria

14. Section 94 of the Act sets out the qualification criteria for DSP. For present purposes,
the three primary requirements are that:
(a)the person has a physical, intellectual or psychiatric impairment;[15]
(b)the person’s impairment is of 20 points or more under the Impairment Tables;[16] and
(c)the person has a continuing inability to work (CITW).[17]
[15]Section 94(1)(a) of the Act.
[16]Section 94(1)(b) of the Act.
[17]Section 94(1)(c)(i) of the Act.

The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement that the person has a CITW, are of equal importance.[18]
[18]Topic 3.6.3.05 of the Guide.
In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine Ms Farinaccio’s eligibility for DSP on 26 October 2018, the date the claim was lodged.[19]
[19]Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referable to Ms Farinaccio’s condition during the relevant period (Re Fanning and Secretary, Department of Social Services[2014] AATA 447, Deputy President Handley at 473 [31]; affirmed by the Federal Court of Australia in Gallacher v Secretary, Dept of Social Services [2015] FCA 1123 at [27]-[28].
The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.[20]
[20]Section 3 of the Determination.
The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions.[21]
[21]Section 5(2) of the Determination.
Section 6 of the Impairment Tables set out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings.
Section 6(1) of the Determination provides that a person’s 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”. To be given a rating under the Impairment Tables,
[22]Section 6(3) of the Determination. Refer also to ss 6(4) to 6(7) of the Determination.
the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years.[22]
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned.[23]
[23]Section 6(8) of the Determination.
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[24] Unless required by the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[25]
[24]Section 8(1) of the Determination.
[25]Section 8(2) of the Determination.
To select the applicable Impairment Table and assess impairments, one must take the following steps:[26]
(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]Section 10(1) of the Determination.
Continuing inability to work, severe impairment and participation in a program of support
Section 94(2) of the Act identifies the criteria that the Secretary must consider when determining whether a person has a CITW, because of an impairment.
Section 94(2) of the Act is as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)… the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity -- such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
All of the criteria in s 94(2) of the Act must be satisfied in respect of the requirement that a person have a CITW under s 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention.
In relation to s 94(2) of the Act, extracted at para [25] above, relevantly:
(a)the Tribunal has no power to dispense with the operation of the program of support requirement in s 94(2)(aa) of the Act and it is irrelevant whether an applicant was aware of the requirement or not;[27]
(b)a person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table;[28]
(c)a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of subsection 94(3C);[29] and
(d)work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market.[30]
[27]See Larkin and Secretary, Department of Social Services [2018] AATA 342 at [57] in which the Secretary referred to a number of authorities to this effect.
[28]Section 94(3B) of the Act.
[29]Section 94(3C) of the Act.
[30]Section 94(5) of the Act.
With regards to participation in a program of support (POS), the POS Determination relevantly provides the following guidance:
(a)the relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person;[31] and
(b)the requirements for active participation in a POS are contained in s 7 of the POS Determination.
(i)Generally, a person must have participated in the POS for at least 18 months during the relevant period.[32]
(ii)Sections 7(3)-7(5) of the POS Determination relate to situations where a person can participate in a POS for less than 18 months and still satisfy the POS requirement (provided that person had commenced in a POS prior to lodging their claim for DSP).[33]
[31]Section 5 of the POS Determination.
[32]Section 7(2) of the POS Determination.
[33]See Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33].
ISSUES FOR DETERMINATION
The issues which arise in this matter are whether, at the date of Ms Farinaccio’s claim for DSP:
(a)Ms Farinaccio suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(i)Ms Farinaccio’s impairments receive an impairment rating of 20 points or more under the Impairment Tables; and if so,
(ii)whether those 20 impairment points are achieved under a single Impairment Table such that Ms Farinaccio has a severe impairment; and
(b)Ms Farinaccio has a CITW, which includes:
(i)that she be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)if, and only if, Ms Farinaccio does not have a severe impairment,
Ms Farinaccio has actively participated in a program of support.
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 1 April 2021. Ms Farinaccio was self-represented.

The Secretary was represented by Mr Allan Quanchi, Lawyer, Services Australia.

The parties appeared at the hearing by telephone.
At hearing, the Tribunal admitted the following documents into evidence:
(a)Medical Records of St John of God Murdoch Hospital filed on 9 October 2021 (A1);
(b)Medical Records from Sonic HealthPlus filed on 9 October 2021 (A2);
(c)Letter from Dr Craig Drummond, GP, dated 10 July 2018 (A3);
(d)Letter from Dr Craig Drummond, GP, dated 21 January 2017 (A4);
(e)Letter from Mr Jonathan Spencer, Orthopaedic Surgeon, dated 29 April 2016 (A5);
(f)Letter from Dr Frederick Ng, Consultant Psychiatrist, dated 26 March 2015 (with attachments) (A6);
(g)Reports from People Sense (together, being A7):
(i)Closure Report dated 23 December 2015;
(ii)Graduated Return to Work Program dated 15 April 2014; and
(iii)Initial Assessment Report dated 17 February 2014.
(h)Report from Dr Evan Jenkins, GP, dated 26 September 2014 (A8);
(i)Report on localised bone scan from Perth Radiological Clinic dated 27 March 2020 (A9);
(j)Letter from Jess Ware, Employment Team Leader, REFAP Pty Ltd (undated) (A10);
(k)Secretary’s Statement of Facts, Issues and Contentions dated 28 October 2020, including the Secretary’s List of Authorities (R1); and
(l)T documents (T1 – T74) (pages 1 - 373) plus Supplementary T documents (ST1 – ST3) (pages 374 – 587) (R2).
Following the hearing, the Tribunal received the following additional documents from the parties:
(a)Ms Farinaccio’s email dated 22 April 2021 attaching letter from Ms Amy Richardson, Occupational Therapist, dated 23 December 2015.
(b)Secretary’s supplementary submissions dated 7 May 2021, including the Secretary’s List of Authorities.
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Ms Farinaccio’s evidence at hearing
At hearing, Ms Farinaccio gave oral evidence in relation to a number of her Claimed Conditions.[34]
[34]At hearing, Ms Farinaccio did not give any oral evidence in relation to her Cushing’s syndrome, multiple systems atrophy, adrenal tumours, visual impairment, left shoulder injury or her carpal tunnel syndrome. The Tribunal relies on the available documentary evidence on these conditions.
Cardiac arrhythmias
At hearing, Ms Farinaccio said that in relation to her cardiac condition:
(a)She started off with Dr Keith Woollard, a cardiologist at St John of God Hospital.[35]
(b)Dr Woollard diagnosed her supraventricular tachycardia.[36]
(c)Ms Farinaccio said she had seen multiple cardiologists following Dr Woollard having retired.[37]
(d)She commenced new (heart) medication in about 2019 which has not helped.[38]
(e)She has ongoing issues with different medications and has anaphylactic reactions to them so she was returned to her original medication but at a higher dose.[39]
(f)This course of action really had not helped a great deal.[40]
(g)She has been given a referral to Dr Kuruvilla[41] to see if there’s anything further that can be done.[42]
(h)The only two options remaining to be considered are ablation and a pacemaker.[43] This was set out in the report dated 29 April 2019 from the Perth Cardiovascular Institute and submitted to the Agency.[44]
[35]Transcript, p 9 [45].
[36]Transcript, p 11 [5].
[37]Transcript, p 11 [9]–[10].
[38]Transcript, p 12 [35].
[39]Transcript, p 12 [40].
[40]Transcript, p 12 [40].
[41]Dr Susan Kuruvilla is a Consultant Cardiologist at Hollywood Private Hospital.
[42]Transcript, p 12 [40]–[45].
[43]Transcript, p 12 [45].
[44]
Left and right knee conditions
Ms Farinaccio gave oral evidence regarding her knee conditions as follows:
(a)Her knee problems are ongoing.[45]
(b)Initially she was told she needed a knee replacement on her right knee.[46]
(c)She was recommended for the right knee reconstruction because there are tears and there is arthritis in her right knee.[47]
(d)However, she asked to hold off on the knee replacement procedure for as long as she could.[48]
(e)This was in the hope of being able to afford stem cell treatment first, to prolong the need for the knee reconstruction.[49]
(f)She then underwent a right knee reconstruction.[50]
(g)Unfortunately over the last couple of years her knees have progressively worsened and she will now be looking at having the right knee replaced.[51]
[45]Transcript, p 19 [40].
[46]Transcript, p 19 [40].
[47]Transcript, p 19 [45].
[48]Transcript, p 19 [40].
[49]Transcript, p 19 [40].
[50]Transcript, p 19 [40]. Ms Farinaccio underwent a right knee reconstruction on 16 June 2016 (R2, T39, p188).
[51]Transcript, p 19 [45].
Mental health condition

In relation to her depression condition, Ms Farinaccio stated that Dr Drummond had referred her to a mental health social worker.[52] Ms Farinaccio explained that Dr Drummond did not have a report from the social worker, however she did attend (face to face) sessions with the social worker and multiple phone sessions,[53] throughout 2017 and in early 2018.[54]
[52]Transcript, p 20 [40].
[53]Transcript, p 20 [45].
[54]Transcript, p 21 [10].
Ms Farinaccio said that Dr Drummond then referred her to Ms Maria Ann Holkens, a clinical psychologist, to whom she attended 10 weekly sessions in 2018. Ms Farinaccio said she ceased attending as she could not afford the cost of the sessions or related reports.
[55]Transcript, p 21 [10]-[35].
Ms Farinaccio said that Dr Drummond never requested any reports from Ms Holkens.[55]
Ms Farinaccio said that (while she has no reports), she had treatment for major ongoing mental health issues, including a recent suicide attempts where she was referred to an emergency appointment, because her issues are ongoing.[56]
[56]Transcript, p 21 [40].
Fibromyalgia
In relation to her fibromyalgia, Ms Farinaccio said that she has taken multiple medications for pain. Ms Farinaccio added that she is on multiple medications now, so her fibromyalgia is not “getting treated and stabilised.” Ms Farinaccio said that unfortunately, her fibromylgia is just something she has to live with, “along with everything else.”
CONSIDERATION
Whether Ms Farinaccio suffered from a physical, intellectual or psychiatric impairment or impairments
The Tribunal is required to assess the medical evidence concerning Ms Farinaccio’s functional ability resulting from her impairments as at the date of claim.
It is not in dispute that Ms Farinaccio suffers from impairments. The Tribunal finds on the evidence that at the date of claim, Ms Farinaccio suffered from various impairments resulting from her Claimed Conditions. The Tribunal notes the medical reports, medical certificates and radiological evidence in this regard.[57]
[57]
As such, the Tribunal finds that Ms Farinaccio satisfies s 94(1)(a) of the Act.
Whether Ms Farinaccio’s impairments receive an impairment rating of 20 points or more
It is not in dispute that Ms Farinaccio has not participated in a POS for the required 18 months.[58] Further, Ms Farinaccio has not claimed, nor is there any evidence to suggest, that she has been specifically exempted from this requirement.
[58]Transcript, p 27 [5]-[10] and R1, T70, p 399.
Therefore, in order for the present application to succeed, the Tribunal must be satisfied that at least one of the Claimed Conditions attracts 20 points for that single condition.[59]

That is, the Tribunal must find that Ms Farinaccio suffers from a severe impairment.[60]
[59]The Tribunal emphasises that this is in addition to the requirement that an applicant demonstrate that he or she is unable to work for 15 hours or more per week, within the next two years, with intervention.
[60]Refer to paras [25] and [26] above.
Before considering whether Ms Farinaccio suffers from a severe impairment, the Tribunal must first determine whether any of the Claimed Conditions are FDTS. It is only then that a condition may be deemed permanent and therefore be rendered capable of being assigned impairment points under the relevant Impairment Tables (whether those points be 20 points or more under a single table or otherwise).
Ms Farinaccio, contended at hearing that each of the Claimed Conditions ought to attract their own individual impairment rating.[61] Ms Farinaccio, however, has not made submissions as to how many impairment points each Claimed Condition should be afforded and defers to the Tribunal’s assessment in this respect.[62]
[61]Transcript, p 14 [45] and p 15 [5]. Ms Farinaccio, however, did not particularise the point rating she considers ought to apply to each of the Claimed Conditions.
[62]Transcript, p 15, [25]-[35]. That is, if indeed the Tribunal finds that one or more of Claimed Conditions are FDTS and hence ought to attract an impairment rating. See paras [48]–[51].
The Secretary, however, contended that Ms Farinaccio was not qualified for the DSP at the relevant time as she did not have an impairment rating of at least 20 points and a CITW.[63] Specifically, the Secretary submitted that none of the Claimed Conditions, other than Ms Farinaccio’s right knee, were FDTS and hence (por and in any event) cannot attract an impairment rating.[64] Specifically, the Secretary contended:
[63]R1, [5.1].
[64]See R1 [5.21], [5.24], [5.32],[5.33],[5.39],[5.40], [5.41], [5.47], [5.50], [5.51] and [5.56].
(a)Cushing’s syndrome/adrenal tumours – The specialist medical evidence, particularly that of Dr Mattes and Clinical Associate Professor Henley, is that as at October 2018 that further investigation was still to be undertaken regarding Ms Farinaccio’s diagnosis of Cushing’s syndrome.[65]
[65]Transcript, p 8 [40].
The Secretary relies on a body of medical evidence in submitting that Ms Farinaccio’s Cushing’s syndrome and adrenal tumours were not fully diagnosed at the date of claim,[66] or, in the alternative, that they were not fully treated and fully stabilised at that time.[67]
[66]R1 [5.25]-[5.29].
[67]R1 [5.30]-[5.31].
(b)Cardiac arrythmias – Ms Farinaccio’s SVT is fully diagnosed. However, from late 2017 right up to 2019 and 2020 there was increased cardiac arrhythmia, light-headedness and even blackouts and increasing severity without changes to medication or treatment and further cardiologist reviews were being recommended. This increasing severity of this condition and the need for specialist further review at the relevant time indicates it was not yet fully treated and fully stabilised.[68]
[68]Transcript, p 8 [45]; p 9 [5]-[15].
The Secretary relies on a body of medical evidence in submitting that Ms Farinaccio’s SVT was, at the date of claim, fully diagnosed but not fully treated or fully stabilised.[69]
[69]R1 [5.34]-[5.38].
(c)Left and right knee conditions
(i)Right knee – Ms Farinaccio’s right knee condition originated back in 2012, when Dr Prosser, an orthopaedic surgeon, noted that there had been previously two dislocations and early osteoarthritis. Treatment continued through to the date of claim.[70] It is therefore open to the Tribunal, to find this condition is FDTS.[71] There is no corroborating medical evidence of that right knee condition having a functional impact greater than 0 points under Table 3 of the Impairment Tables.[72]
[70]See R1 [5.42].
[71]See also R1 [5.41], [5.43], [5.44].
[72]Transcript, pp 16- 17. See R1 [5.45].
(ii)Left knee – This condition appears to have originated in on 3 October 2007, where Dr Drummond's surgical notes recalled that Ms Farinaccio presented with a left knee problem from a fall. There appears to be insufficient corroborative evidence about the treatment of the left knee and whether the condition had stabilised, by October 2018. It has been recorded anecdotally, in the HPAU report that Ms Farinaccio was not observed to have issues with mobility but there was apparent issues and symptoms related to other conditions. Then further, on 10 July 2018, Dr Drummond also notes again that the left knee condition is the one that's troublesome.[73] Therefore, at the date of claim, Ms Farinaccio’s right knee condition was fully diagnosed, but not fully treated or fully stabilised.[74]
[73]Transcript, pp 16- 17.
[74]R1 [5.40].
The Secretary relies on a body of medical evidence in submitting that Ms Farinaccio’s left knee condition was, at the date of claim, fully diagnosed but not fully treated or fully stabilised.[75]
(d)Mental health condition – While it accepts that Ms Farinaccio’s depression was diagnosed at the qualification date, the Secretary considers, however, that Ms Farinaccio’s depression was not fully treated and fully stabilised at that time.[76]
The Secretary relies on a body of medical evidence in making this submission.[77]
(e)Other conditions – There is insufficient evidence for the Tribunal to find any other medical condition as being permanent at the qualification date, including Ms Farinaccio’s claimed:
(i)visual impairment;
(ii)left shoulder injury;
(iii)carpal tunnel syndrome; and
(iv)fibromyalgia.[78]
[75]R1 [5.42] and [5.46].
[76]R1 [5.47].
[77]R1 [5.48].
[78]See R1 [5.51]-[5.55].
Having regard to the available medical evidence in its entirety:
(a)the Tribunal is satisfied that only Ms Farinaccio’s right knee condition was FDTS; and
(b)the Tribunal cannot be satisfied that Ms Farinaccio’s other Claimed Conditions were FDTS, at the date of claim, for the following reasons:
(i)By Ms Farinaccio’s own evidence, she is still exploring treatment options in relation to her cardiac condition, her right knee condition and her fibromyalgia.[79] This accords with the available medical evidence regarding the state of these conditions at the qualification date.[80]
(ii)While Ms Farinaccio considers that she has had treatment for her ongoing depression condition,[81] there is no evidence to demonstrate this was the case at the qualification date.
(iii)
As for Ms Farinaccio’s Cushing’s syndrome/adrenal tumours, it appears to the Tribunal that at the qualification date the exact cause and diagnoses of her condition was still unknown and required further investigation. Hence it cannot be said to have been fully diagnosed at the relevant time.

The Tribunal notes the Secretary’s submissions and related evidence in this regard.
(iv)There is insufficient evidence before the Tribunal in relation to Ms Farinaccio’s claimed visual impairment, left shoulder injury and carpal tunnel syndrome to conclude that any of these conditions were FDTS at the qualification date. At hearing, Ms Farinaccio elected not to comment further on these conditions when given the opportunity.[82]
[79]See paras [35], [36] and [40] above.
[80]See, for example, extracts at R2, [5.34], [5.42], [5.44] and [5.55].
[81]See para [38] above.
[82]Transcript, p 22 at [35]–[40].
While the Tribunal considers that Ms Farinaccio’s right knee condition was FDTS at the qualification date, there is no evidence before the Tribunal that this condition caused her any functional impairment at that time. Rather, in July 2018, Dr Drummond considered Ms Farinaccio’s right knee outcome to be “fantastic.”[83] Therefore, no impairment points can be allocated to Ms Farinaccio’s right knee condition.
[83]A3.
In light of the matters addressed and findings made at paras [42] to [48] above,
the Tribunal is unable to allocate impairment points to Ms Farinaccio’s functional impairments and she fails to satisfy s 94(1)(b) of the Act.
Whether Ms Farinaccio has a continuing inability to work
Based on paras [44] to [50] above, the Tribunal finds that Ms Farinaccio’s Claimed Conditions are not FDTS and she fails to satisfy subsection 94(1)(b) of the Act. Given this finding, the Tribunal is not required to consider whether Ms Farinaccio had, at the date of claim, a CITW in satisfaction of subsection 94(1)(c) of the Act.
In this regard, and for completeness only, the Tribunal notes that:
(a)Ms Farinaccio concedes she has failed to complete a POS in accordance with the relevant requirements and the evidence indicates this to be the case.[84]
(b)The JCA report further indicates that Ms Farinaccio would have the capacity to work 15 to 22 hours per week in within two years, with intervention.[85]
[84]See para [44] above.
[85]R2, T58, p288.
Therefore, on the available evidence Ms Farinaccio’s application is likely to have failed:
(a)regardless of whether any or all the Claimed Conditions were FDTS; and
(b)
if any or all of the Claimed Conditions had been found to be FDTS, regardless of whether 20 impairment points were assigned under a single condition,

or accumulatively.
CONCLUSION
The Tribunal accepts that, at the date of claim, Ms Farinaccio suffered from medical conditions impacting on her health such that she satisfies s 94(1)(a) of the Act. However, the Tribunal has found that there is insufficient evidence to establish that any of the Claimed Conditions can be assigned any impairment points.
As Ms Farinaccio’s Claimed Conditions do not attract any impairment points, she fails to satisfy the second qualification criteria under s 94(1)(b) of the Act and in turn fails to qualify for the DSP.
DECISION
The decision of the AAT1 dated 2 December 2018, which affirmed a decision of the Agency dated 28 June 2019 to reject Ms Farinaccio’s application for DSP lodged on 26 October 2018, is affirmed.

I certify that the preceding 57 (fifty -seven) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

...........[Sgd]..................................................
Associate
Dated: 13 August 2021

Date of hearing: 1 April 2021

Applicant: Self-represented

Representative for the Respondent: Mr A Quanchi, Lawyer, Services Australia

Transcript, p 12 [45] and p 13 [45]. The Tribunal is unable to locate a report of this description.

The Tribunal notes, however, the reference in the JCA report to Ms Farinaccio having advised the assessor of her referral to a cardiologist and of a ‘possible pacemaker’ (R2, T58, p285).

R2 T5–11; T15–18; T19–21; T24–27; T29; T35–50; T56–57; T59; T62; T64; T66–68; ST1–3.

See also the documents admitted into evidence at hearing at [31] above.

[2021] AATA 3292

13 August 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	1 April 2021
Applicant:	Self-represented
Representative for the Respondent:	Mr A Quanchi, Lawyer, Services Australia