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

Juchau and Secretary, Department of Social Services (Social services second review) [2020] AATA 3116 (21 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1134
Re:Todd Charles Juchau
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:21 August 2020
Place:Brisbane

The Tribunal affirms the decision under review.
.................................[SGD].......................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions permanent – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member D K Grigg
21 August 2020
BACKGROUND AND CLAIM HISTORY

On 15 August 2019 Mr Juchau lodged a claim for Disability Support Pension (‘DSP’), describing his medical condition as vasculitis.[1]
[1] Exhibit 1, T Documents, T 45, pages 179-180, Mr Juchau’s Claim for DSP dated 15 August 2019.
On 22 August 2019, an Exercise Physiologist from the Assessment Services Division of the Department of Human Services (‘Centrelink’) assessed Mr Juchau’s medical records and provided Centrelink with a recommendation regarding whether Mr Juchau was medically eligible for DSP. According to the assessor:[2]
(a)Mr Juchau had Wegeners Granulomatosis, sleep apnoea, diabetes, anxiety, and depression, and back and neck pain; and
(b)Mr Juchau’s conditions were not fully diagnosed, treated, and stabilised.
[2] Exhibit 1, T Documents, T 47, pages 182 – 183, Assessment Services Recommendation for DSP medical
eligibility dated 22 August 2019.
As a result of the Assessment Services recommendation, Centrelink determined on 30 September 2019 to reject Mr Juchau’s claim for DSP.[3]
[3] Exhibit 1, T Documents, T 48, pages 184 – 185, Rejection of DSP claim dated 30 September 2019.
The decision to reject Mr Juchau’s claim for DSP was then referred to an Authorised Review Officer (‘ARO’) for review.
The review by the ARO was unsuccessful on the grounds that Mr Juchau’s impairments were not fully treated and not fully stabilised or did not attract a 20-point impairment rating.[4]
[4] Exhibit 1, T Documents, T 49, pages 186 – 192, ARO Decision and notes dated 5 November 2019.
Mr Juchau then lodged an application for review with the Social Services and Child Support Division (‘SSCSD’).[5] The SSCSD rejected Mr Juchau’s claim and affirmed the ARO’s decision on 5 February 2020.[6]
[5] Exhibit 1, T Documents, T 50, pages 193 – 200, Request for a review dated 18 November 2019.
[6] Exhibit 1, T Documents, T2, pages 5-10, SSCSD’s Decision and Reasons for Decision dated 5 February 2020.
Mr Juchau has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1- 4, Application for Review of Decision dated 25 February 2020.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the ‘Act’).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP, the following requirements must be met (‘Section 94 Requirements’):
(a)Mr Juchau must have a physical, intellectual, or psychiatric impairment.
(b)Mr Juchau’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘Determination’).[8]
(c)Mr Juchau must have a continuing inability to work.
[my emphasis]
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Juchau meets the Section 94 Requirements is the date of the claim (in this instance as at 15 August 2019), unless Mr Juchau becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, in order to qualify for DSP, Mr Juchau must have met the Section 94 Requirements between 15 August 2019 and 14 November 2019 (‘Qualification Period’).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Juchau’s impairments after the Qualification Period cannot be considered unless it ‘casts light on’ the functional impact of the impairments in the Qualification Period.[10]
DID MR JUCHAU HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment?
The Determination defines ‘Impairment’ to mean ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition’ and ‘condition’ as ‘a medical condition’.[11]
Mr Juchau’s Medical Conditions
[11] Determination, s 3.
Back/Neck Pain
In January 2016 Mr Juchau was involved in a car accident. Following the accident Dr Thomas Black, General Practitioner, reported that Mr Juchau was suffering ongoing neck and back pains, paraesthesia in the hands and feet and ongoing headaches.[12]
[12] Exhibit 1, T Documents, T9, page 66, Report of Dr Black dated 16 March 2016.
In March 2016 Dr Khandelival, Radiologist, reported that Mr Juchau had early lumbar spondylotic changes and a suboptimal cervical spine.[13]
[13] Exhibit 1, T Documents, T35, page 145, Health Professional Advisory Unit Opinion dated 7 December 2017.
In May 2016 Dr Black reported that Mr Juchau’s neck and back pain was permanent and being treated with oxycodone and physiotherapy. Dr Black also reported that planned treatment included physiotherapy and attending a pain clinic if it became necessary.[14]
[14] Exhibit 1, T Documents, T23, page 110, Medical certificate of Dr Black dated 20 May 2016.
On 12 May 2017 Mr Juchau was invited to attend an information session at a pain clinic but he did not respond to the invitation.[15]
[15] Exhibit 1, T Documents, T34, page 138, Letter from Dr Steven Smith to Dr Black dated 12 May 2017.
In January 2018 Dr Jason Miller, General Practitioner, reported that Mr Juchau’s severe back pain limits Mr Juchau’s ability to sustain postures, to ambulate any significant distance or to lift.[16]
[16] Exhibit 1, T Documents, T 37, page 159-160, Report of Dr Miller dated 30 January 2018.
In February 2018 Dr Miller, reported that Mr Juchau’s back pain was not responsive to conservative treatment and he was not eligible for surgery.[17]
[17] Exhibit 1, T Documents, T 38, page 161-162, Report of Dr Miller dated 23 February 2018.
Mental Health
In March 2016 Dr Black referred Mr Juchau to a psychologist because Mr Juchau had complained of upsetting mood disturbances, intrusive flashbacks and dreams following the car accident.[18]
[18] Exhibit 1, T Documents, T 10, page 67, Referral of Dr Black dated 16 March 2016.
On 13 July 2016, Grant Osland, Clinical Psychologist, reported that:[19]
(a)he had reviewed Mr Juchau on several occasions;
(b)Mr Juchau was suffering from mixed anxiety and a depressive condition;
(c)Mr Juchau had symptoms consistent with PTSD;
(d)Mr Juchau’s symptoms can be severe at times; and
(e)Mr Juchau had a “significant disability or loss of normal functioning” and was not fit to work in the foreseeable future.
[19] Exhibit 1, T Documents, T 27, page 114, Report of Mr Osland dated 13 July 2016.
Vasculitis
In March 2016 Mr Juchau was admitted to hospital for haemoptysis, rash and joint pain scleritis.[20] The Hospital considered that Mr Juchau may have vasculitis.
[20] Exhibit 1, T Documents, T 12, page 69, Discharge summary dated 31 March 2016.
Mr Juchau attended hospital again in April 2016. He was diagnosed with Wegener Granulomatosis.[21]
[21] Exhibit 1, T Documents, T 14, page 76, Discharge summary dated 13 April 2016.
In May 2016 Mr Juchau was reviewed by a Consultant Nephrologist who placed him on a medication regime which included cyclophosphamide, analgesia, and prednisolone.[22]
[22] Exhibit 1, T Documents, T 22, pages 108-109, Report of Dr Feddersen dated 5 May 2016.
In August 2016 Dr Black reported that:[23]
(a)Mr Juchau’s Wegener Granulomatosis:
(i)was causing him joint pain, malaise, breathlessness;
(ii)was permanent; and
(b)the medication Mr Juchau requires to treat the condition would cause long term symptoms.
[23] Exhibit 1, T Documents, T 23, page 110, Medical certificate of Dr Black dated 20 May 2016.
In February 2018 Dr Jason Miller, General Practitioner, reported that:[24]
(a)Mr Juchau had developed chronic kidney disease stage 1 secondary to PR3 predominant ANCA associated vasculitis and was being maintained on prednisone and azathioprine;
(b)Mr Juchau needs ongoing care and flare ups may result in hospitalisation;
(c)Serious inflammation or infection could cause disability or death.
[24] Exhibit 1, T Documents, T 38, page 161-162, Report of Dr Miller dated 23 February 2018.
Diabetes
In May 2016 Dr Feddersen, Consultant Nephrologist, reported that Mr Juchau had developed diabetes because of the medication he was taking.[25]
[25] Exhibit 1, T Documents, T 22, pages 108-109, Report of Dr Feddersen dated 5 May 2016.
In February 2018 Dr Miller reported that Mr Juchau’s diabetes was managed on medication but was likely to progress to insulin dependence soon.[26]
[26] Exhibit 1, T Documents, T 38, page 161-162, Report of Dr Miller dated 23 February 2018.
Hypertension
In May 2016 Dr Feddersen, Consultant Nephrologist, reported that Mr Juchau had hypertension.[27]
[27] Exhibit 1, T Documents, T 22, pages 108-109, Report of Dr Feddersen dated 5 May 2016.
Sleep Apnoea
In May 2016 Dr Feddersen, Consultant Nephrologist, reported that Mr Juchau had sleep apnoea.[28]
[28] Exhibit 1, T Documents, T 22, pages 108-109, Report of Dr Feddersen dated 5 May 2016.
In February 2018 Dr Miller reported that Mr Juchau had sleep apnoea which was being treated with a CPAP machine.[29]
[29] Exhibit 1, T Documents, T 38, page 161-162, Report of Dr Miller dated 23 February 2018.
Conclusion on Impairments
The Secretary accepts that Mr Juchau had Impairments which satisfied section 94(1)(a) of the Act during the Qualification Period.[30]
[30] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 7 July 2020, paragraph 20.
Considering the above evidence, the Tribunal finds that during the Qualification Period Mr Juchau suffered from a Spinal Impairment, Mental Health Impairment, Vasculities Impairment, Diabetes Impairment and a Sleep apnoea Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
In relation to the hypertension condition, there was insufficient medical evidence before the Tribunal. The Tribunal cannot determine whether this condition has been fully diagnosed, treated, and stabilised. The Tribunal has also not been provided with information regarding how this condition impacted on Mr Juchau’s ability to function during the Qualification Period.
DO MR JUCHAU’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[31] They are function based[32] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[33]
[31]Determination ss 4(2) and 5(2)(a).
[32] Determination, s 5(2)(b) and (c).
[33] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[34]
(a)the condition causing that impairment is ‘permanent’; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[34] Determination, see s 6(3).
The requirement that a condition must be ‘permanent’ is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[35]
[35] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Juchau’s conditions can only be ‘permanent’ for the purposes of the Determination if the following conditions are satisfied:[36]
(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.
[36] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[37] the following is to be considered:[38]
(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.
[37] For the purposes of ss 6(4)(a) and (b) of the Determination.
[38] Determination, see s 6(5).
A condition is fully stabilised[39] if:[40]
(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;[41] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[39] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[40] Determination, see s 6(6).
[41] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
Before applying the Impairment Tables the Tribunal must first consider Mr Juchau’s medical history, in relation to the condition causing the Impairments.[42]
WEGENER’S GRANULOMATOSIS IMPAIRMENT
[42] Determination, see s 6(2).
Is Mr Juchau’s Wegener’s Granulomatosis Impairment permanent and likely to persist
The Secretary accepts that Mr Juchau’s Wegener’s Granulomatosis Impairment was permanent during the Qualification Period. The Tribunal is also satisfied that this condition was permanent. Therefore, an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Juchau’s Wegener’s Granulomatosis Impairment has to be assessed against the descriptors[43] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed ‘Points’ corresponding to a descriptor).[44]
[43]Determination, see ss 3 and 5(3).
[44] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person 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.[45]
[45] Determination, see s 6(1).
Pursuant to the Determination the following information:
(a)must be taken into account in applying the Tables:[46]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)must not be taken into account in applying the Tables:[47]
(i)symptoms reported by Mr Juchau in relation to his condition where there is no corroborating evidence;
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Juchau’s local community.
[46] Determination, see s 7.
[47] Determination, see s 8.
Which Tables are appropriate are determined by:[48]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[48] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[49]
[49]Determination, see s 10(3).
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.[50]
[50]Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[51]
[51]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[52]
[52]Determination, see s 11(5).
Evidence Identifying the Loss of Function
There is limited evidence available.
In August 2016 Dr Black reported that Mr Juchau’s Wegener Granulomatosis was causing him joint pain, malaise, breathlessness.[53]
[53] Exhibit 1, T Documents, T 23, page 110, Medical certificate of Dr Black dated 20 May 2016.
In September 2017 Dr Miller reported that Mr Juchau’s symptoms included fatigue, long standing pain, and fevers.[54]
[54] Exhibit 1, T Documents, T31, page 128, Medical certificate of Dr Miller dated 20 September 2017.
The question is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
At the hearing Mr Juchau gave the following evidence:
·He sometimes becomes short of breath
·He can get out of bed in the morning and make breakfast
·He watches TV for most of the day
·He can walk about 20 meters before he starts to lose his breath
·He exercises by using handheld arm weights and raising his legs up and down
·He lives by himself
·He can go to the shop to buy groceries and rests on the shopping trolley as necessary
·He can do household chores with rest periods
·He sometimes uses a disability walker around the house
·He can drive for an hour and 20 minutes to visit his mother if he breaks the drive up into three stages
·He recently found security guard work, but it made his condition worse as it required him to stand on his feet for long periods. He said he was having to sit down every 15 minutes
Relevant Impairment Table and Impairment Rating

Considering the evidence Table 1 of the Determination, which deals with functions requiring physical exertion and stamina, is the relevant Table.
The introduction to Table 1 provides:

Introduction to Table 1

·     Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.

·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·     Self-report of symptoms alone is insufficient.

·     There must be corroborating evidence of the person’s impairment.

·     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 commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);

a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);

results of exercise, cardiac stress or treadmill testing.

Table 1 provides that the following must be satisfied for a 5- or 10-point impairment rating:

5
There is a mild functional impact on activities requiring physical exertion or stamina.

(1)      The person:

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

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

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

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

10
There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)       is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)      is able to:

(i)       use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

The Secretary contends that 5-points is an appropriate Impairment Rating.
In the circumstances the Tribunal finds that, based on the available corroborating evidence, an appropriate Impairment Rating falls between 5 and 10 points. 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.[55]
[55]Determination, see s 11(1).
Therefore, a 5-point Impairment Rating is appropriate for Mr Juchau’s Wegener’s Granulomatosis condition.
BACK AND NECK PAIN IMPAIRMENT
Is Mr Juchau’s Back and Neck Pain Impairment permanent and likely to persist
The Secretary contends that Mr Juchau’s Back and Neck Pain Impairment was not permanent on the grounds that it was not fully treated and stabilised during the Qualification Period.
At the hearing Mr Juchau said he no longer takes pain medication because it turned him into a “zombie” and he just puts up with intermittent pain. He said he did not attend the pain clinic because he did not think the clinic could do anything.
The Tribunal agrees with the Secretary. There is no medical evidence of the cause for the pain Mr Juchau complains of in relation to his neck and back. Other than taking strong pain medication (oxycontin and Lyrica)[56], there is no evidence to explain whether these conditions have had all reasonable treatment and if they had stabilised during the Qualification Period. There is also no evidence of specialist review, by a chronic pain specialist or orthopaedic specialist. As a result, the condition cannot be considered to be fully treated and stabilised, and no impairment rating can be assigned.
SLEEP APNOEA IMPAIRMENT
[56] Exhibit 1, T34, page 140, Patient Health Summary dated 12 September 2017.
Is Mr Juchau’s Sleep Apnoea Impairment permanent and likely to persist
The evidence available supports a finding that this condition was fully diagnosed during the Qualification Period. Mr Juchau had been treated with a CPAP machine.
There is no evidence that this condition has been reviewed since the original diagnosis. There is also no evidence to confirm whether Mr Juchau had had all reasonable treatment or whether the condition had stabilised. There is also no corroborating evidence of what impact this condition was having on Mr Juchau’s ability to function. As a result, this condition cannot be considered to be fully treated and stabilised and therefore no Impairment Rating can be assigned.
Mental Health Impairment
Is Mr Juchau’s Mental Health Impairment permanent and likely to persist
Other than a brief report from a psychologist in 2016 (three years prior to the Qualification Period), there is no other evidence from a clinical psychologist or psychiatrist to confirm:
(a)what mental health conditions, if any, Mr Juchau suffered from as at the Qualification Period;
(b)whether any mental health conditions had been fully treated; and
(c)what impact any mental health conditions were having on Mr Juchau during the Qualification Period.
As a result, this condition cannot be considered to be fully treated and stabilised and therefore no Impairment Rating can be assigned.
At the hearing Mr Juchau confirmed that he is no longer suffering from any mental health condition requiring treatment. He explained that he is in a “better headspace” now and no longer feels how he did when he first received his Wegener’s Granulomatosis diagnosis. At the time of this diagnosis he was understandably emotional.
Diabetes impairment
Is Mr Juchau’s Diabetes Impairment permanent and likely to persist
While Mr Juchau had been diagnosed with diabetes and was being treated with medication, it is not clear whether this condition can be considered fully treated and stabilised as at the Qualification Period.
Therefore, this condition cannot be considered to be fully treated and stabilised and therefore no Impairment Rating can be assigned.
There is insufficient medical evidence addressing the impact on function of Mr Juchau’s diabetes.
CONCLUSION
The Tribunal has found that Mr Juchau’s permanent impairments attract a 5-point Impairment Rating.
The Tribunal acknowledges and understands Mr Juchau’s concern about his Wegener’s Granulomatosis condition and its current and future impact on his ability to function. Mr Juchau also must take extra care at this time due to the COVID-19 pandemic.
The Tribunal is bound by the Act and subsidiary legislation.
It is not relevant for the purpose of this DSP application that Mr Juchau can no longer work as a full-time security guard, a job he told the Tribunal he enjoyed.
It is also not relevant to an assessment of DSP under the Act, that a superannuation fund has determined Mr Juchau was entitled to total permanent incapacity (“TPI”) payments. This is because there are different criteria which apply to an assessment for TPI. Usually TPI payments are linked to a determination as to whether a person can still be employed in the job they are trained/qualified to perform. That is not the criteria for the DSP. Under the Act a person must simply have a continuing ability to undertake any “work” for at least 15 hours per week.[57] It is not restricted to a person’s former work type.
[57] See sections 94(1)(c)(i) and 94(5), Act.
The Tribunal requires more detailed evidence of the functional impact of Mr Juchau’s medical conditions for a higher Impairment Rating to be considered.
If Mr Juchau’s condition/s have worsened since the Qualification Period, and he obtains up to date detailed medical evidence reporting the impact of these conditions on his ability to function, it would be open to Mr Juchau to reapply for the DSP.
CONTINUING INABILITY TO WORK
As Mr Juchau’s permanent Impairment attracts an Impairment Rating of 5 points during the Qualification Period it is unnecessary for me to consider whether Mr Juchau had a ‘continuing inability to work’ (as defined in section 94(2) of the Act) for the purposes of section 94(1)(c) during the Qualification Period.
DECISION
Mr Juchau’s claim fails because he did not qualify for DSP during the Qualification Period under section 94(1)(b) of the Act.
The decision under review is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.................................[SGD].......................................
Associate
Dated: 21 August 2020

Date(s) of hearing: 28 July 2020

Applicant: By telephone

Solicitors for the Respondent: Mr R McQuinlan, Services Australia

[2020] AATA 3116

21 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Remedies

Date(s) of hearing:	28 July 2020
Applicant:	By telephone
Solicitors for the Respondent:	Mr R McQuinlan, Services Australia