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

Lawrence and Secretary, Department of Social Services (Social services second review) [2018] AATA 3853 (12 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6604
Re:Denise Ann Lawrence
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:12 October 2018
Place:Perth

The Tribunal affirms the decision under review.
...............................[sgd].........................................
Member C Edwardes

CATCHWORDS
SOCIAL SECURITY – disability support pension – medical conditions – mental health – back pain – migraine – qualification period – impairment tables – no program of support – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c), s 94(1)(c)(i), s 94(2), s 94(3B), s 94(3C)
Social Security (Administration) Act 1999 (Cth) – s 179, Sch 2 Cl 4 (1)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5), s 6(7),
s 7, s 8, s 8(1), s 9, s 10, s 11, s 11(1)
The Guide to Social Security Law
REASONS FOR DECISION
Member C Edwardes
12 October 2018
THE APPLICATION

This is an application for review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), made on 12 October 2017. AAT1 affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) which was lodged by the Applicant on 7 April 2017 (T2 5-13)(R1).
The Tribunal finds that the Qualification Period for this DSP claim is from the 7 April 2017 to 7 July 2017.
INTRODUCTION
On 7 April 2017, the Applicant lodged a claim for DSP, detailing medical conditions of “Anxiety, chest pain [and] physical incapacity” (T32 162)(R1).
The claim was rejected by a Centrelink officer and the Applicant was advised of this rejection by letter dated 7 July 2017 (T35 182)(R1). The rejection of the claim was on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more (T35 182)(R1).
The Applicant requested review of the Centrelink officer’s decision by the officer of Centrelink (T36 184)(R1). The review was undertaken by an Authorised Review Officer (ARO) and the Applicant received notification of the review outcome on 3 August 2017, which was to affirm the decision of the Centrelink officer (T37 185-189)(R1).
The ARO advised the Applicant of a number of findings:
·“Your conditions of anxiety, chest pain and spinal disorder are not accepted as being permanent as they have not been fully diagnosed, treated and stabilised.
·You do not have an impairment rating of 20 points or more.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment”.
The Applicant subsequently lodged an application with AAT1 to review the decision (T2 6)(R1). AAT1 affirmed the decision on 12 October 2017 (T2 5-10)(R1). The AAT1 determined that the Applicant had generated an impairment rating of 0 points under the Impairment Tables (T2 5-10)(R1).
In regards to the Applicant’s mental health (anxiety and associated chest pain), AAT1 found the condition to be fully diagnosed, but not fully treated and stabilised. In regards to the Applicant’s spinal condition, AAT1 found the condition was not fully diagnosed, treated and stabilised.
The Applicant lodged an application for review of AAT1’s decision with the General Division of the Administrative Appeals Tribunal (the Tribunal) on 7 November 2017 (T1 1-4)(R1).
The Applicant lodged this application for review on the basis that
“The information given was not taken into account.
The back injury is permanent
The medical symptoms are persistent chronic and disabling Daily upon physical activity unpredictable, Low to serious inability to function with daily living shopping cleaning walking concentration memory sleep Disturbance climbing stairs to be avoided , walking street slopes . Sitting”
The Tribunal has jurisdiction to hear this application pursuant to section 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), which states:
(1) Application may be made to the AAT for review ( AAT second review ) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the Act) and the Administration Act.
Section 94 of the Act provides the criteria for DSP, relevantly:
1A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(d)the person has a continuing inability to work;
(e)…
Assessing impairments and assigning an impairment rating
The Impairment Tables referred to in s 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables”.
Section 94(1)(b) of the Act obliges the Tribunal to determine whether the Applicant’s impairments are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
5. … The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.
6. The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination. (Original emphasis.)
Section 6(5), s 6(6) and s 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Section 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using the Impairment Tables and how to assign impairment ratings. In particular, s 11(1)(c) of the Determination states that “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…”
Continuing inability to work
As detailed above in s 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to s 94(2) of the Act:
(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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – 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.
(Emphasis added.)
“Severe impairment” is defined in s 94(3B) of the Act:
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. (Original emphasis.)
Section 94(3C) of the Act states that 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.
Relevantly, s 5, s 7(1) and s 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require, generally, that a person is to participate in a program of support (POS) for 18 months in the 36 months prior to the date of the relevant claim for DSP.
QUALIFICATION PERIOD
Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements in Schedule 2 clause 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case, the Tribunal finds the 13 week period is from the 7 April 2017 to 7 July 2017 inclusive, and is known as the “Qualification Period”.
For a claim to be successful, a person must be qualified for DSP during the Qualification Period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1].
The Tribunal is also assisted by The Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
ISSUES
The key issue for the Tribunal to determine is whether the Applicant was qualified for DSP during the Qualification Period for the purposes of s 94(1) of the Act.
This requires consideration of whether at the time of the Qualification Period:
(a)the Applicant had any physical, intellectual or psychiatric impairment;
(b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and
(c)if so, whether the Applicant had a ‘continuing inability to work’ as defined in s 94(2) of the Act.
EVIDENCE
The application was heard in Perth on 1 October 2018. The Applicant was self-represented and appeared in person. The Respondent was represented by Ms Zinn of Mills Oakley.
The Tribunal would like to thank all parties for the assistance they provided during the hearing.
The Tribunal had the following evidence before it:
·the Applicant’s written submissions, in the form of an email to the Tribunal, dated 23 April 2018 (Exhibit A1);
·an email from the Applicant to Tribunal Conference Registrar, containing further submissions, dated 23 April 2018 (Exhibit A2);
·an email from the Applicant to the Senior Housing Co-ordinator, dated 23 April 2018 (Exhibit A3);
·an email from the Applicant to the Tribunal, containing further submissions as to her physical condition and financial circumstances, dated 20 April 2018 (Exhibit A4);
·an email received by the Applicant from HBF, dated 7 April 2018 (Exhibit A5);
·an email from the Applicant regarding her finances (including photo extracts of her Centrelink online account) dated 28 March 2018 (Exhibit A6);
·an email from the Applicant regarding her bank account and financial hardship, including photographs, dated 22 March 2018 (Exhibit A7);
·the T documents, including T1 to T42, pages 1 to 224 (Exhibit R1);
·the Respondent’s Statement of Facts, Issues and Contentions (Exhibit R2); and
·Annexure A to the SOFIC: Medical Report of Dr John O Mahoney, dated 9 May 2018, with attached covering letter from Department of Human Services (Exhibit R3).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence and the matters in issue, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Respondent made the following contentions in respect to the medical conditions of the Applicant:
Mental health function - Anxiety and associated chest pain
5.17       In a medical report dated 17 December 2014, Dr John O'Mahony, General Practitioner, noted that the Applicant had been diagnosed in 2010 by Dr Hendrick Janoug, Clinical Psychologist, as having anxiety [T8, pp 93]. The report also identified that:
(a)       the condition was likely to persist for more than 2 years [T8, pp 95];
(b)       the Applicant had previously been treated with antidepressant medication and cognitive behavioural therapy [T8, pp 94]; and
(c)       further cognitive behavioural therapy was recommended [T8, pp 94].
5.18       Dr O'Mahony's report also noted that the Applicant was suffering from temporary chest pain with an unknown aetiology [T8, pp 96]. The symptomology was expected to last for a period of less than 3 months [T8, pp 98].
5.19       In a medical report dated 9 July 2015, Dr David Bucens, Respiratory Physician, noted that the Applicant's chest pain had been investigated and the origin was not considered cardiac in nature [T11, pp 107-107]. Dr Bucens noted that:
(a)       the cause of the Applicant's shortness of breath remained unknown, however, the 'recent marked weight gain explains the problem, at least in part';
(b)       the Applicant's maximum expiratory flow rates and forced vital capacity were both normal;
(c)       the Applicant had normal ventilator capacity.
5.20       Dr Bucens also requested full pulmonary function tests and an echocardiogram which was to be followed by clinical review. However, Dr Bucens reported that the Applicant was 'anxious, her inspiratory effort was technically unsatisfactory and she declined to complete the full range of tests' [T11, pp 107].
5.21       In a medical report dated 14 September 2015, Dr Bucens noted that a transthoracic echocardiography revealed normal function and that pulmonary function tests found the Applicant had normal pulmonary function [T13, pp 110].
5.22       In a medical certificated dated 11 February 2016, Dr O'Mahony noted that the Applicant was suffering from anxiety disorder and chest pain with an uncertain prognosis [T14, pp115].
5.23       In a letter dated 10 April 2016, Michael Crew, Royal Perth Hospital Emergency Department Medical Officer noted that:
(a)       an electrocardiogram presented normal results;
(b)       observations were normal and stable throughout the Applicant's hospital admission; and
(c)       there were no demonstrable stigmata of cardiac or other disease [T15, pp 116].
5.24       In a medical certificated dated 20 April 2016, Dr O'Mahony noted that the Applicant was suffering from anxiety disorder and chest pain with an uncertain prognosis [T18, pp 119]. The medical certificate identified that holter monitoring was being investigated as a possible treatment option.
5.25       In a medical report dated 21 April 2016, Dr Phillip Currie, Cardiologist, reported that the outcome of a holter monitor was that no significant cardiac arrhythmias and no paroxysmal atrial fibrillations were detected [T20, pp 121].
5.26       In a letter dated 26 April 2016, Judith Murphy, Royal Perth Hospital Emergency Department Registrar, noted that the Applicant's examination was 'unremarkable', however, the Applicant should undertake provocative testing to rule out coronary artery disease [T21, 124].
5.27       In a Royal Perth Hospital discharge summary dated 27 April 2016, Dr Rachel Kovac, Medical Practitioner, noted that:
(a)       the Applicant's cardio mediastinal contours were unremarkable when allowing for projection differences;
(b)       the Applicant was offered psychiatric input but declined; and
(c)       the Applicant should pursue psychiatric treatment as the symptoms most likely presented a picture of anxiety [T22, pp 125-127].
5.28       In a letter dated 6 May 2016, Dr O'Mahony noted that:
Denise Lawrence has had episodes of severe chest pain, weakness, feeling faint, nausea, giddiness over the past 6-9 months. These episodes are becoming more frequent and severe, and a [sic] causing great distress and inability to function day to day. She has had multiple hospital attendances and investigations without a firm diagnosis other than anxiety. Treatment includes reassurance, cognitive behaviour therapy. Planned treatment should include psychological assessment (which she is very resistant towards). Prognosis is uncertain but the situation is unlikely to affect her life expectancy (emphasis added) [T23, pp 128]. (Original emphasis.)
5.29       In a letter dated 4 July 2016, Thomas Dow, Royal Perth Hospital Emergency Department Medical Officer noted that:
(a)       a physical examination of the Applicant was unremarkable;
(b)       the Applicant had failed to undertake blood testing advised by her General Practitioner;
(c)       serial Troponins, D-dimer and standard bloods were unremarkable;
(d)       a chest x-ray report was unremarkable; and
(e)       investigations in April 2016 failed to identify any medical causes for the Applicant's chest pain and advised that the Applicant be considered for a psychiatric cause of her symptoms [T26, pp 131].
5.30       In a letter dated 14 February 2017, Donal O'Malley, Royal Perth Hospital Emergency Department Medical Officer noted that:
(a)       the Applicant was afebrile and her vitals were within normal parameters;
(b)       respiratory, cardiovascular and abdominal examinations were unremarkable; and
(c)       further cardiac investigations were recommended due to recurrent presentation with similar symptoms and normal baseline investigations [T31, pp 136].
5.31       In a medical report dated 20 March 2017, Dr O'Mahony advised that:
(a)       the Applicant was suffering from chest pain and general weakness with an uncertain aetiology;
(b)       the symptoms were likely caused by associated anxiety, however, this diagnosis was presumptive and required further investigations and testing to confirm the diagnosis;
(c)       current treatment included reassurance, exercise (resulting in weight loss) and cognitive behavioural therapy;
(d)       future recommended treatment included reassurance, exercise (resulting in weight loss) and cognitive behavioural therapy; and
(e)       the current impact of the condition was expected to last longer than 2 years [T33, pp 167-175].
5.32       In a letter dated 9 May 2018, Dr O'Mahony noted that:
As at 06/04/2017 symptoms described, anxiety, depression, lethargy, markedly reduced concentration, poor memory, irritability, paranoia, poor interpersonal relationships, severe disturbance of decision making, planning and organisation. Unable to attend work, education or training sessions. i.e. severe functional impact on activities involving mental health function.
Symptoms described on 06/04/2017   Back pain, leg pain, neck pain, numbness in limbs, difficulty walking, difficulty working above her shoulders, walking causing chest pain and light headedness, breathlessness, can only do very light house work - no sweeping or vacuuming unable to use stairs. i.e. moderate functional impact on activities involving spinal function.
Symptoms described on 06/04/2012 Headache associated with dizziness and blurred vision is episodic but when present, requires her to be confined to bed. In short when present she is unable to carry out everyday activities. i.e. moderate functional impact on activities involving physical exertion or stamina.
Back pain
5.39       In a medical report dated 20 March 2017, Dr O'Mahony reported a diagnosis of degenerative disease of the spine with symptomology of lower back pain caused by a motor vehicle accident in 2005. Current and future recommended treatment included analgesia, anti-inflammatory tablets, exercise and weight loss. The current impact of the condition was expected to last longer than 2 years [T33, pp 171-175].
5.40       In a Royal Perth Hospital discharge summary dated 27 April 2016, Dr Rachel Kovac, Medical Practitioner, noted that the Applicant Suffered from chronic back pain from a motor vehicle accident in 2005 [T22, pp 126].
Migraine
5.45       In a letter dated 9 May 2018 [Annexure A]. Dr O'Mahony reported a diagnosis of migraine caused by a motor vehicle accident in 1998. Current and future recommended treatment included aspirin and ibuprofen to deal with the episodic symptomology of the condition. The current impact of the condition was expected to last longer than 2 years.

The Applicant has provided written submissions outlining a whole series of impacts her medical conditions have had on her quality of life (A2). These include attending to her mentally ill son, whilst her own physical health was deteriorating; her struggle with independent living due to her anxiety and chest pains; and her hospitalisation due to physical collapse.
She states her conditions have had a significant impact on her financial situation due to the need for medications, rent, transport and household expenses.
The Respondent opened by resting on its Statement of Facts, Issues and Contentions, and contended that the Qualification Period was 7 April 2017 to 7 July 2017.
The Respondent claimed that the Applicant had not completed a POS and therefore needed 20 impairment points from a single table to qualify for DSP.
The Respondent contended that the Applicant’s mental health condition (“anxiety and associated chest pain”) and “back pain” were both not fully diagnosed, treated and stabilised at the time of making the application for DSP. In regards to the Applicant’s condition of “migraine”, the Respondent contended that the condition was diagnosed, but not treated and stabilised (R2).
The Applicant said she is unwell and is suffering from many medical conditions. She gave evidence that her quality of life had suffered significantly, resultant of her medical conditions. The Applicant has been homeless and has resided in a Women’s refuge. The Applicant has employment history in aged care, an ice cream parlour and child care. She currently receives Newstart Allowance, but finds it difficult to make ends meet.
The Applicant has great difficulty leaving her accommodation and regularly feels exhausted when shopping for groceries and when undertaking cleaning duties at her place of residence. She experiences extended periods of lethargy.
In her cross-examination, the Applicant gave evidence that she had not participated in a POS. The Applicant maintained her medical conditions were as she stated in her application, but did not provide any medical evidence in support of these claims.
CONSIDERATION
The Tribunal finds that the Qualification Period is for the period 7 April 2017 to 7 July 2017.
The Tribunal will now consider all the evidence before it, including the written and oral submissions made by both the Applicant and the Respondent.
Does the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments?
It is not in dispute that the Applicant suffers from the following medical conditions: mental health (anxiety and chest pain), back pain and migraines. The Tribunal notes the medical reports which attest to the fact that the Applicant suffers from these medical conditions (R3).
The Tribunal finds the Applicant does satisfy s 94(1)(a) of the Act; that she has “a physical, intellectual or psychiatric impairment”.
Do the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination?
Mental health – anxiety and chest pain
The Applicant told AAT1:
“12. … she has felt imprisoned because of her conditions… she has tried over the years to manage her anxiety and chest pains but has been unable to overcome the challenges of her condition. Miss Lawrence said the problems started in 2005 with a back injury that prevented her from working in the profession she loved in administration and she had to leave her job in late 2007. Miss Lawrence said that in 2009 she was caring for her son Liam who has a psychiatric disability and became a full time carer to him. Miss Lawrence said she had cared for Liam while working full time while supporting him.” (T2 8)(R1)
AAT1 found:
“17. … the condition of anxiety and depression is permanent and is accepted as diagnosed but not fully treated or stabilised.
The Applicant told the Tribunal that she had not been assessed by a psychiatrist or clinical psychologist for many years.
The Tribunal notes the Job Capacity Assessment report of 28 June 2017 which states “Miss Lawrence reported that she has not attended with a psychologist or psychiatrist at any time. She reports that she prefers to manage her anxiety by staying at home and relaxing. She reported she may have experienced some anxiety associated with losing her home and all her belongings a number of years ago, after she was no longer able to work due to back pain”.
The Tribunal notes that the medical reports of the 24 November 2014 (T8 100)(R1) and the 9 May 2018 (R3) show that the Applicant was treated by a clinical psychologist from 14 July 2010 to 22 September 2010. However, there is no evidence as to what transpired or what outcomes were achieved during this treatment.
The Applicant gave evidence in cross-examination that she had not sought treatment from a psychiatrist or a clinical psychologist. The Tribunal notes that this is a requirement for diagnosis under Table 5 of the Impairment Tables (T3 36)(R1).
Having considered all the evidence before the Tribunal, it finds this condition of ‘Mental health – anxiety and chest pains’ as not being fully diagnosed treated and stabilised.
Spinal condition
The Applicant told AAT1:
“18. … she sustained a back injury in 2005 which left her in rehabilitation for two years and limited her ability to work to six hours per day. Miss Lawrence said she tried to manage but by 2008 found that she could not work full time in any capacity and relinquished a job she loved. Miss Lawrence said that by 2013 she struggled to carry the shopping and her condition worsened affecting her ability to walk any short distance without being exhausted. Miss Lawrence has struggled to understand the process and system of obtaining disability support pension, she asked the tribunal why would no one explain to her what is needed by way of documents and medical evidence so she can just get on with it.
…she cannot do anything anymore. She struggles with steps, inclines and managing day to day tasks at home including cooking and shopping and cleaning”.
The Tribunal notes Dr O Mahony’s report of 9 May 2018 (R3) that the Applicant had been treated with anti-inflammatory medication, hydrotherapy, physiotherapy and regular exercise post 2005 and that she has been treated for acute flare ups.
The Tribunal notes that diagnosis of this condition under Table 4 of the Impairment Tables (T3 34)(R1) must include the following:
·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 purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment …; or
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range in movement in the spine or other effects of spinal disease or injury.”
The Tribunal has considered the Job Capacity Assessment report of 28 June 2017 (T34 178)(R1), which stated “Miss Lawrence reports an exacerbation of back pain over recent months. She reports she has been referred for x-rays but has not yet undertaken these”.
The Tribunal has no evidence before it to corroborate the symptoms being experienced by the Applicant.
The Tribunal finds on the evidence before it, this condition was not fully diagnosed, treated and stabilised at the time the Applicant made her claim for DSP, within the context of the qualification period.
Migraine
The Respondent contends that “there is no medical evidence referable to the qualification period, and as such, this condition cannot be considered fully diagnosed, fully treated and fully stabilised during the relevant period. The Secretary therefore contends that the impairment is not permanent, and an impairment rating cannot be assigned to the impairment” (R2).
In cross-examination, the Applicant conceded that she had not suffered from this medical condition for several years.
The Tribunal, having assessed the evidence before it, supports the contention of the Respondent and finds this condition as not fully diagnosed, treated and stabilised for the purpose of the Qualification Period.
Does the Applicant have a continuing inability to work?
The Tribunal finds that the Applicant has zero points under the Impairment Tables and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider s 94(1)(c) of the Act and determine whether the Applicant has a continuing inability to work.
DECISION
For the reasons given above, the Applicant does not qualify for DSP. The decision under review is affirmed.

I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

...........................[sgd].............................................
Administrative Assistant - Legal
Dated: 12 October 2018

Date(s) of hearing: 1 October 2018

Applicant: In person

Counsel for the Respondent: Ms Zinn

Solicitors for the Respondent: Mills Oakley

[2018] AATA 3853

12 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness

Date(s) of hearing:	1 October 2018
Applicant:	In person
Counsel for the Respondent:	Ms Zinn
Solicitors for the Respondent:	Mills Oakley