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

This matter concerned an appeal by Mr Kertesz against a decision by the Secretary of the Department of Social Services affirming a decision to refuse him a disability support pension. The central dispute revolved around whether Mr Kertesz's impairments attracted an impairment rating of 20 or more points under the relevant Impairment Tables, as required by the Social Security Act 1991 (Cth). The case was heard by D K Grigg M.

The court was required to determine which of the Impairment Tables was applicable to Mr Kertesz's conditions and, consequently, what impairment rating, if any, should be assigned to his diagnosed impairments. Specifically, the court had to consider whether Mr Kertesz's lumbar spine impairment, among other conditions, met the criteria for a permanent condition and whether the resulting functional impairment was likely to persist for more than two years, thereby satisfying the requirements of section 94(1)(b) of the Act.

The court reasoned that Table 4 of the Determination, concerning Spinal Functions, was the appropriate table for assessing Mr Kertesz's lumbar spine impairment. This table requires a permanent condition resulting in functional impairment when performing activities involving spinal function, supported by corroborating medical evidence beyond self-reported symptoms. The court considered medical reports from Dr Waturuocha and Mr Nothdurft, as well as a Job Capacity Assessment (JCA) report, which indicated limitations in lifting, carrying, and manipulating objects, as well as difficulties with prolonged sitting, standing, and walking. However, the court also noted Mr Kertesz's own evidence that he could perform certain daily activities, albeit with pain, and that his conditions did not make it difficult to use public transport or care for himself. The court applied the criteria for assessing "permanent" conditions, which include full diagnosis, full treatment, full stabilisation, and a likelihood of persistence for more than two years.

The court concluded that Mr Kertesz had established impairments including depression and anxiety, lumbar spine impairment, shoulder impairment, and hip impairment. However, based on the evidence and the application of the Impairment Tables, the court found that the impairments did not attract an impairment rating of 20 or more points. Therefore, the decision under review was affirmed.