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

Case

[2017] AATA 810

6 June 2017


Laming and Secretary, Department of Social Services (Social services second review) [2017] AATA 810 (6 June 2017)

Division:GENERAL DIVISION

File Number:           2016/6546

Re:Kevin Laming

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D K Grigg

Date:6 June 2017

Place:Brisbane

The decision under review is affirmed.

.................................[Sgd].......................................

Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – 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)

CASES

De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.

REASONS FOR DECISION

Member D K Grigg

6 June 2017

INTRODUCTION

  1. On 4 December 2015 Mr Laming lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “shortness of breath, morbid obesity (and) diabetes” (“Claimed Medical Conditions”).[1]

    [1]           Exhibit 1, T Documents, T20, pages 110-138, at 122, Mr Laming’s Claim for DSP dated 4 December 2015.

  2. To date Mr Laming’s claim has been rejected. Mr Laming seeks a further review by this Tribunal.

    Claim History

  3. As a result of a Job Capacity Assessment (“JCA”) Mr Laming’s claim was rejected by a Centrelink officer on 9 February 2016.[2] The JCA concluded that Mr Laming’s impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[3]

    [2]           Exhibit 1, T Documents, T24, page 150, Centrelink Decision dated 9 February 2016.

    [3]           Exhibit 1, T Documents, T23, pages 142-149, Job Capacity Assessment report dated 9 February 2016.

  4. Mr Laming then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Laming’s impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[4]

    [4]           Exhibit 1, T Documents, T31, pages 162-169, ARO Decision dated 9 May 2016.

  5. Mr Laming lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Mr Laming’s claim and affirmed the ARO’s decision on 3 November 2016.[5]

    [5]           Exhibit 1, T Documents, T3, pages 5-12, SSCSD’s Decision and Reasons for Decision dated 3 November 2016.

  6. Mr Laming has sought a review of the SSCSD’s decision by this Tribunal.[6]

    [6]           Exhibit 1, T Documents, T2, pages 3-4, Application for Second Review of Decision by Mr Laming dated 25

    November 2016.

    ISSUES FOR DETERMINATION

  7. The legislation relevant to this matter is contained in the Social Security Act 1991(Cth) (the “Act”).

  8. Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):

    (a)Mr Laming must have a physical, intellectual or psychiatric impairment;

    (b)Mr Laming’s impairment 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”).[7]

    (c)Mr Laming must have a continuing inability to work.

    [my emphasis]

    [7] A legislative instrument made under the Act: see s 26(1).

  9. The date for determining whether Mr Laming meets the Section 94 Requirements is the date of the claim (in this instance as at 4 December 2015), unless Mr Laming becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[8] Therefore, in order to qualify for DSP Mr Laming must have met the Section 94 Requirements between 4 December 2015 and 4 March 2016 (“Qualification Period”).

    [8]           See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999

    (Cth).

  10. It is important to keep in mind that medical evidence concerning the functional impact of Mr Laming’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[9]

    DID MR LAMING HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: s94(1)(a)?

    [9]           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?

  11. 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”.[10]

    Mr Laming’s Medical Conditions

    [10] Determination, s 3.

    Shortness of Breath

  12. On 18 March 2013 Mr Laming presented at Townsville Hospital complaining of chest pain and shortness of breath and was prescribed Atorvastatin to lower cholestoral and help prevent a heart attack, Metoprolol to regulate his heart rate and Aspirin to prevent blood clotting.[11]

    [11]         Exhibit 1, T Documents, T5, pages 69-73, Townsville Hospital Discharge Summary dated 21 March 2013.

  13. An echocardiogram revealed mild right ventricular dilation.[12]

    [12]         Exhibit 1, T Documents, T10, page 80, Report of Dr Binder dated 4 September 2013.

    Hypertension

  14. In 2013 Mr Laming was taking Olmesartan to treat high blood pressure.[13]

    [13]         Exhibit 1, T Documents, T5, pages 69-73, Townsville Hospital Discharge Summary dated 21 March 2013.

    Gastro-Oesophageal Reflux Disorder (GORD)

  15. In 2013 Mr Laming was taking Esomeprazole to treat GORD.[14]

    [14]         Exhibit 1, T Documents, T5, pages 69-73, Townsville Hospital Discharge Summary dated 21 March 2013.

    Renal Stones

  16. In 2013 Mr Laming was taking Allopurinol to treat/prevent kidney stones.[15]

    [15]         Exhibit 1, T Documents, T5, pages 69-73, Townsville Hospital Discharge Summary dated 21 March 2013.

    Sleep Apnoea

  17. Mr Laming was diagnosed with severe mixed central and obstructive sleep apnoea/hypopnoea associated with snoring, mild oxyhaemoglobin desaturation and moderate sleep fragmentation.[16]

    [16]         Exhibit 1, T Documents, T8, pages 77-78, Polysomnogram Report of Dr J Binder, Consultant Respiratory and

    Sleep Physician dated 3 July 2013.

  18. In 2014 Dr Jiang, Mr Laming’s general practitioner, described Mr Laming’s medical conditions in his report supporting Mr Laming’s claim as “mixed sleep apnoae” which he noted significantly affects Mr Laming’s “endurance” ability. Dr Jiang reports that, as a result, Mr Laming experiences “exertional shortness of breath”.[17]

    [17]         Exhibit 1, T Documents, T16, pages 91-101, DSP Medical Report of Dr Jiang dated 3 October 2014.

    Diabetes

  19. In October 2014 Dr R Jiang, General Practitioner, reported that Mr Laming had Type II diabetes and that it was generally well managed and caused limited or minimal impact on his ability to function.[18]

    [18]         Exhibit 1, T Documents, T16, pages 91-101, DSP Medical Report of Dr Jiang dated 3 October 2014.

    Anxiety

  20. In February 2016 Mr Laming was referred to Dr Riccardo Caniato, Psychiatrist, for review due to his change in mood and potential mental health issues relating to his shortness of breath.[19]

    [19]         Exhibit 1, T Documents, T22, page 140, Letter from Dr Jiang to Dr Caniato dated 8 February 2016.

    Anaemia

  21. In March 2016 Dr Jiang reported that Mr Laming had anaemia.[20]

    [20]         Exhibit 1, T Documents, T28, page 156, Medical Certificate of Dr Jiang dated 11 March 2016.

    Shoulder

  22. In February and March 2016 Mr Laming had x-rays and ultrasounds of his shoulders. These examinations indicated that Mr Laming has tendonosis and bursitis in his left shoulder and tendonosis and bursitis in his right shoulder.[21]

    [21]         Exhibit 1, T Documents, T25, page 152, X-Ray and Ultrasound report of left shoulder dated 25 February 2016;

    T26, page 153, X-Ray and Ultrasound report of right shoulder dated 2 March 2016.

    JCA Report

  23. The JCA was conducted face-to-face with Mr Laming on 6 January 2016 by a Registered Psychologist and Registered Occupational Therapist. The JCA assessors’ report states that Mr Laming suffered from:[22]

    ·Respiratory disorder – sleep apnoea (which was found to be not fully diagnosed, fully treated or fully stabilised)

    ·Morbid obesity (which was found to be fully diagnosed but not fully treated and not fully stabilised)

    ·Diabetes (which was found to be fully diagnosed but not fully treated and not fully stabilised)

    ·Hypertension (which was found to be fully diagnosed, fully treated and fully stabilised)

    ·Gastroenterological condition – reflux gastro-esophageal (which was found to be fully diagnosed, fully treated and fully stabilised)

    ·Kidney disorder - renal stones (which was found to be fully diagnosed, fully treated and fully stabilised)

    ·Other – anxiety (which was found to not be fully diagnosed, fully treated or fully stabilised)

    [22]         Exhibit 1, T Documents, T23, pages 142-149, Job Capacity Assessment report dated 9 February 2016.

    Conclusion on Impairments

  24. The Secretary concedes that Mr Laming satisfied section 94(1)(a) during the Qualification Period.[23]

    [23]         Exhibit 2, Secretary’s Statement of Facts and Contentions dated 26 April 2017, at para 27.

  25. In light of the above evidence I conclude that during the Qualification Period Mr Laming suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:

    ·Sleep Apnoea

    ·Morbid obesity

    ·Hypertension

    ·Gastroenterological condition – GORD

    ·Kidney disorder - renal stones

  26. Whilst acknowledging that Mr Laming suffers from diabetes, there is no evidence to establish that this condition affects his functional capacity or caused impairment during the Qualification Period. Dr Jiang reports that this condition causes minimal or limited impact on Mr Laming’s ability to function.[24]

    [24]         Exhibit 1, T Documents, T16, pages 91-101, DSP Medical Report of Dr Jiang dated 3 October 2014.

  27. In relation to the anaemia condition, there is no evidence regarding when this was diagnosed, what treatments are being undertaken and whether it has stabilised. There is also no evidence regarding how this condition impacts on Mr Laming’s ability to function. As a result I find that this condition is not a permanent impairment for the purposes of the Act and no Impairment Rating can be assigned.

  28. In relation to the potential anxiety, or other mental health condition, Table 5 of the Determination, which relates to mental health function, specifically provides that, in order to assign an Impairment Rating, the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). Without such evidence, no Impairment Rating can be assigned. Mr Laming had not been assessed or diagnosed by a psychiatrist or clinical psychologist during the Qualification Period. Mr Laming was seen by Dr Caniato, Consulting Psychiatrist, in or around May 2016 (which is after the Qualification Period). Dr Caniato diagnosed Mr Laming as having, amongst other things, panic disorder and major depressive disorder. There is no evidence of any diagnosis of this nature during the Qualification Period. Further, even if it could be presumed that Mr Laming had these conditions during the Qualification Period, he had clearly not been fully treated at that time. Dr Catiano referred Mr Laming to Dr Rigano, Psychologist and he commenced a schedule of 6 sessions with Dr Rigano between May 2016 and August 2016. As a result, this condition cannot be assessed for the purpose of this DSP application.

    DO MR LAMING’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: s94(1)(b)?

    How are Impairment Ratings Assessed?

  29. The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[25] They are function based[26] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[27]

    [25] Determination, ss 4(2) and 5(2)(a).

    [26] Determination, s 5(2)(b) and (c).

    [27] Determination, s 5(2)(d).

  30. I can only assign an Impairment Rating to an impairment if:[28]

    (a)Mr Laming’s 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.

    [28] Determination, see s 6(3).

  31. 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.[29]

    [29]         De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA

    368, at [12].

  32. Mr Laming’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[30]

    (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.

    [30] Determination, see s 6(4).

  33. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[31] the following is to be considered:[32]

    (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.

    [31] For the purposes of ss 6(4)(a) and (b) of the Determination.

    [32] Determination, see s 6(5).

  34. A condition is fully stabilised[33] if:[34]

    (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;[35] or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [33] For the purposes of ss 6(4)(c) and 11(4) of the Determination.

    [34] Determination, see s 6(6).

    [35]         For reasonable treatment see s 6(7) of the Determination.

  35. 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.

  36. However, before applying the Impairment Tables I must first consider Mr Laming’s medical history, in relation to the condition causing the impairment.[36]

    [36] Determination, see s 6(2).

  37. I will now consider each of Mr Laming’s impairments.

    Sleep Apnoea Impairment

    Is Mr Laming’s Sleep Apnoea Impairment Permanent and Likely to Persist for at Least 2 Years?

  38. Mr Laming was diagnosed in 2013 by Dr Binder, Consultant Respiratory and Sleep Physician, with severe mixed central and obstructive sleep apnoea/hypopnoea associated with snoring, mild oxyhaemoglobin desaturation and moderate sleep fragmentation.[37] Dr Binder reported that CPAP therapy (continuous positive airway pressure therapy machine) is recommended and that measures such as weight reduction, avoidance of alcohol and sedatives and attention to issues affecting sleep hygiene should be emphasised. [38]

    [37]         Exhibit 1, T Documents, T8, pages 77-78, Polysomnogram Report of Dr J Binder, dated 3 July 2013.

    [38]         Exhibit 1, T Documents, T8, pages 77-78, Polysomnogram Report of Dr J Binder, dated 3 July 2013.

  39. In September 2013 Dr Binder reported that there had been no effective treatment of his sleep disordered breathing because Mr Laming had not used the CPAP device because of difficulties he was having with it. Mr Laming said he trialled 4 different masks. Dr Binder suggested he may need an antidepressant if claustrophobia or anxiety was preventing the effective use of the mask.[39] At the hearing Mr Laming said his inability to use the masks had nothing to do with anxiety and claustrophobia.

    [39]         Exhibit 1, T Documents, T10, pages 80-81, Report of Dr J Binder, dated 4 September 2013.

  40. In October 2014 Dr Jiang reported that Mr Laming’s sleep apnoea was likely to persist for more than 24 months and the effect of this condition on his ability to function within the next 2 years was uncertain and that there were no effective treatments for the condition.[40]

    [40]         Exhibit 1, T Documents, T16, pages 91-101, DSP Medical Report of Dr Jiang dated 3 October 2014.

  41. In November 2015 Dr Jiang reported there was a planned review with a specialist.[41]

    [41]         Exhibit 1, T Documents, T19, page 108, Medical Certificate of Dr Jiang dated 12 November 2015.

  42. While I find that Mr Laming’s sleep apnoea is fully diagnosed, I am unable to find that it was fully treated and fully stabilised during the qualification period. Mr Laming has not undertaken or persisted with the treatments recommended by Dr Binder. Mr Laming told the ARO he did not attend his review appointment with Dr Binder.[42]

    [42]         Exhibit 1, T Documents, T31, page 164, ARO’s Decision dated 9 May 2016.

  43. I also note that, whilst acknowledging that Mr Laming suffers from sleep apnoea, at the hearing Mr Laming said this condition did not affect him.

  44. In the circumstances I find that Mr Laming’s sleep apnoea is not permanent and no impairment rating can be assigned.

    Morbid Obesity Impairment

    Is Mr Laming’s Morbid Obesity Impairment Permanent and Likely to Persist for at Least 2 Years?

  45. In October 2014 Dr Jiang reported that:[43]

    (a)Mr Laming’s obesity was likely to persist for more than 24 months and the effect of this condition on his ability to function within the next 2 years was uncertain;

    (b)there were no effective treatments for the condition; and

    (c)in the past Mr Laming had tried dieting.

    [43]         Exhibit 1, T Documents, T16, pages 91-101, DSP Medical Report of Dr Jiang dated 3 October 2014.

  46. In November 2014 Mr Laming told a JCA that he was consulting with a dietician.[44]

    [44]         Exhibit 1, T Documents, T18, page 104, JCA Report dated 6 November 2014.

  47. In February 2016 Mr Laming told the JCA that he has consulted with a dietician who recommended he eat regular meals rather than skipping meals. No exercise program has been prescribed. The JCA reported that Mr Laming said this condition does not impact on his ability to function.[45]

    [45]         Exhibit 1, T Documents, T23, pages 143-144, JCA Report dated 9 February 2016.

  1. The Secretary contends there is insufficient evidence to determine that Mr Laming’s obesity is fully treated and fully stabilised.[46]

    [46]         See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 26 April 2017, para 53.

  2. There is no other medical evidence available to indicate what treatment has been prescribed, if any, to assist Mr Laming in dealing with this condition. As a result, this condition cannot be considered to be fully treated or fully stabilised during the Qualification Period. It is uncertain:

    (a)whether Mr Laming would likely benefit from further treatment and physical therapy and specialist consultation;

    (b)whether any further reasonable treatment is likely to result in significant functional improvement to a level enabling Mr Laming to undertake work in the next 2 years; and, therefore

    (c)whether Mr Laming has undertaken reasonable treatment for the condition.

  3. I also note that at the hearing Mr Laming said this condition was not having any impact on his ability to function.

  4. This condition cannot be considered permanent for the purposes of Act and no impairment rating can be assigned.

    Hypertension Impairment

    Is Mr Laming’s Hypertension Impairment Permanent and Likely to Persist for at Least 2 Years?

  5. In 2013 Mr Laming was taking Olmesartan to treat high blood pressure.[47]

    [47]         Exhibit 1, T Documents, T5, pages 69-73, Townsville Hospital Discharge Summary dated 21 March 2013.

  6. No mention of this condition is made in any of Dr Jiang’s reports, other than that in February 2016 Mr Laming was still being prescribed Olmesartan.[48]

    [48]         Exhibit 1, T Documents, T22, page 141, Letter from Dr Jiang dated 8 February 2016.

  7. The JCA reported that this condition was fully diagnosed, fully treated and fully stabilised.[49]

    [49]         Exhibit 1, T Documents, T23, page 144, Job Capacity Assessment report dated 9 February 2016.

  8. The Secretary concedes that Mr Laming’s hypertension is fully diagnosed, fully treated and fully stabilised.[50]

    [50]         See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 26 April 2017, para 49.

  9. I find that Mr Laming’s hypertension is fully diagnosed, fully treated and fully stabilised. However, there is no evidence of this condition having any impact on Mr Laming’s ability to function. Mr Laming reported to the JCA in February 2016 that this condition was well controlled and did not impact on his functional capacity.[51] As a result this condition attracts a zero Impairment Rating.

    GORD Impairment

    [51]         Exhibit 1, T Documents, T23, page 144, Job Capacity Assessment report dated 9 February 2016.

    Is Mr Laming’s GORD Impairment Permanent and Likely to Persist for at Least 2 Years?

  10. No mention of this condition is made in any of Dr Jiang’s reports and there is no indication that Mr Laming still taking medication for this condition.[52]

    [52]         Exhibit 1, T Documents, T22, page 141, Letter from Dr Jiang dated 8 February 2016.

  11. The JCA reported that this condition was fully diagnosed, fully treated and fully stabilised.[53]

    [53]         Exhibit 1, T Documents, T23, page 145, Job Capacity Assessment report dated 9 February 2016.

  12. I find that Mr Laming’s GORD is fully diagnosed, fully treated and fully stabilised. However, there is no evidence of this condition having any impact on Mr Laming’s ability to function. Mr Laming reported to the JCA in February 2016 that this condition was well controlled and did not impact on his functional capacity.[54] As a result this condition attracts a zero Impairment Rating.

    Kidney Impairment

    [54]         Exhibit 1, T Documents, T23, page 145, Job Capacity Assessment report dated 9 February 2016.

    Is Mr Laming’s Kidney Impairment Permanent and Likely to Persist for at Least 2 Years?

  13. No mention of this condition is made in any of Dr Jiang’s reports, other than that in February 2016 Mr Laming was still being prescribed Allopurinol.[55]

    [55]         Exhibit 1, T Documents, T22, page 141, Letter from Dr Jiang dated 8 February 2016.

  14. The JCA reported that Mr Laming stated he had had 3 stents and blasting of renal stones on 3 occasions and concluded this condition was fully diagnosed, fully treated and fully stabilised.[56]

    [56]         Exhibit 1, T Documents, T23, page 145, Job Capacity Assessment report dated 9 February 2016.

  15. The Secretary concedes that Mr Laming’s kidney impairment is fully diagnosed, fully treated and fully stabilised.[57]

    [57]         See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 26 April 2017, para 49.

  16. I find that Mr Laming’s kidney impairment is fully diagnosed, fully treated and fully stabilised. Mr Laming gave evidence that he has pain on one side and that kidney stones are forming again. However there is no corroborating medical evidence that this is the case. Further, there is no evidence of this condition having any impact on Mr Laming’s ability to function during the Qualification Period. Mr Laming reported to the JCA in February 2016 that this condition was well controlled and did not impact on his functional capacity and that he had not had any symptoms for the condition for over 3 years.[58] As a result this condition attracts a zero Impairment Rating.

    Bilateral Shoulder Impairment

    [58]         Exhibit 1, T Documents, T23, page 145, Job Capacity Assessment report dated 9 February 2016.

    Is Mr Laming’s Bilateral Shoulder Impairment Permanent and Likely to Persist for at Least 2 Years?

  17. Dr Jiang reported this condition as bilateral chronic rotator cuff syndrome in March 2016.[59]

    [59]          Exhibit 1, T Documents, T27, page 154, Medical Certificate of Dr Jiang dated 4 March 2016.

  18. However, there is no medical evidence of the treatment being provided for this condition or whether the condition is unable to be treated. In the circumstances I am unable to find that this condition is permanent and therefore no impairment rating can be assigned.

    CONCLUSION

  19. As I have concluded that Mr Laming’s impairments are either not permanent or do not attract an Impairment Rating during the Qualification Period it is unnecessary for me to consider whether Mr Laming had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.

  20. Mr Laming’s claim fails because he did not qualify for DSP during the Qualification Period.

  21. The decision under review is affirmed.

I certify that the preceding 68 (sixty - eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.................................[Sgd].......................................

Associate

Dated: 6 June 2017

Date of hearing: 11 May 2017
Applicant: By phone
Solicitors for the Respondent: Ms Claire Campbell
Department of Human Services

Areas of Law

  • Administrative Law

  • Statutory Interpretation

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Statutory Construction

  • Appeal

Actions
Download as PDF Download as Word Document


Cases Citing This Decision

0