LBNK and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 452

LBNK and Secretary, Department of Social Services (Social security second review) [2025] ARTA 452 (23 April 2025)
Applicant:LBNK
Respondent: Secretary, Department of Social Services
Tribunal Number: 2024/4339

Tribunal:Deputy President K Dordevic (second review)
Place:Sydney
Date:23 April 2025

Decision:The Tribunal:

1. Affirms the decision under review; and
2. Directs that information tending to reveal the identity of the Applicant in these proceedings is prohibited pursuant to subsection 70(1) of the Administrative Review Act 2024.

......................[SGD]..................................................

Deputy President K Dordevic
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) to 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
DISABILITY SUPPORT PENSION – extensor chronic tendinopathy – upper limb condition – whether the Applicant’s impairments attracted an impairment rating of at least 20 points – whether the condition was reasonably treated and stabilised – whether the Applicant had a continuing inability to work – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Secondary Materials
Social Security Guide
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023
Social Security (Active Participation for Disability Support Pension) Determination 2014
Statement of Reasons

This application is concerned with whether LBNK (the Applicant) is qualified for disability support pension.
On 2 November 2023 the Applicant submitted a claim for disability support pension to Services Australia – Centrelink (Centrelink).
On 16 November 2023 the Applicant’s claim for disability support pension was rejected. The Applicant sought a timely review of that decision and on 20 April 2024 an authorised review officer affirmed the original decision.
On 22 April 2024 the Applicant applied to the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT) for an independent review of the authorised review officer’s decision.
On 12 June 2024 the AAT affirmed the authorised review officer’s decision.[1]
[1] T2, folios 8 to 14.
On 24 June 2024, the Applicant lodged an application for review with that decision in the General Decision of the Administrative Review Tribunal. From 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal at second review. [2]
[2] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the on the basis that he did not have 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (Impairment Tables) Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
On 19 November 2024 the Applicant wrote to the Tribunal requesting to ‘extend the timeframe’ as his treating general practitioner had advised that he would not write a report in support of his claim.[3] On 25 January 2025 the Applicant requested that the Tribunal not proceed to determine the matter, requesting ‘several months’ to allow a general practitioner to provide him with a medical report.[4] On 21 February 2025 the Applicant requested that the matter be rescheduled until such time that he consulted with a sports physiotherapist.[5] He stated that he did not have the funds to undertake the consultation and would need a further period to save the funds in order to undertake the consultation.
[3] A3.
[4] Folio A4.
[5] Folio A5.
On 24 February 2025 the adjournment requests were refused, as the Tribunal is limited to considering the Applicant’s qualification for the pension as at the date of his application or in the 13 weeks thereafter. As there is a temporal element, any evidence provided as to his current impairments from an allied health professional that he did not consult at or before his claim is unlikely to have any probative value.
The hearing took place on 6 March 2025. The Applicant was self-represented. The Secretary, Department of Social Services (the Secretary) was represented by Ms Bianca Zhou from Services Australia. Both parties participated by MS Teams audio. The Tribunal was assisted by an interpreter in the Burmese language.
The Tribunal had before it documents filed by the Secretary to the AAT on 11 July 2024 (marked folios 1 to 247). The Tribunal also had the benefit of additional documents filed by the Applicant on 14 October 2024 (marked folios A1 to A5) and a Statement of Facts, Issues and Contentions dated 23 January 2025 filed by the Respondent (marked folios R1 to R15).
ISSUES
The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023 (the Impairment Tables).
Subsection 94(1) of the Act sets out the qualifications for disability support pension. Relevant to this application it states, in part, as follows:
(1) A 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:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and …
The issues for the Tribunal to determine are:
(i) does the Applicant have any physical, intellectual or psychiatric impairments; and, if so
(ii) do his impairments rate at least 20 points under the Impairment Tables; and, if so
(iii) does the Applicant have a continuing inability to work or is he participating in a supported wage system program?
CONSIDERATION
Does the Applicant have a physical, intellectual or psychiatric impairment?
Paragraph 94(1)(a) of the Act sets out, as the first requirement for qualification for disability support pension, that a person suffers from a physical, intellectual or psychiatric impairment.
The following is a summary of the medical evidence that the Applicant relies upon.
On 21 August 2015 the Applicant underwent a right elbow ultrasound. Dr A Eimany, radiologist, determined on the same date the Applicant had common extensor chronic tendinopathy.[6]
[6] T4, folio 122.
On 17 February 2022[7] and 18 May 2022[8] Dr Kyaw-Myint Malie, general practitioner authored medical certificates stating that the Applicant’s primary condition is bilateral inguinal herniae, being a temporary condition with the date of onset being 1 January 2020. The condition was likely to impact on the Applicant’s capacity to work for three to six months and his current symptoms were an inability to squat and lift heavy objects. He was currently awaiting surgery and his capacity to undertaken work was impacted on for the period 17 February to 17 May 2022. Dr Malie reported a secondary condition of right shoulder/elbow tendinopathies, describing it as likely to persist for two years or more. The symptoms were pain in the right elbow flaring up from time to time. Past treatment was reportedly anti-inflammatory medications and physiotherapy and current treatment was described as planning acupuncture. Both conditions would impact on the Applicant’s capacity to work for three to 12 months. On 16 August 2022 Dr Malie provided a near identical medical certificate, with the exception of stating that the Applicant underwent a herniae repair in May 2022.[9]
[7] T5, folio 123.
[8] T7, folio 128.
[9] T8, folios 129.
A right elbow and shoulder ultrasound was performed on 24 February 2022, with the referral noting that the Applicant had longstanding tennis elbow and querying right cuff tendinopathy.[10] Dr Nan Wang, radiologist, concluded that the Applicant had lateral epicondylitis and rotator cuff tendinosis, with no rotator cuff tear and subacromial/subdeltoid bursitis. Dr David Kang, radiologist, confirmed the findings in respect of the right elbow ultrasound on 28 December 2022.[11]
[10] T5, folio 124.
[11] T9, folios 130 to 132.
Dr Simonil Mehta, general practitioner, advised on 10 January 2023 that the Applicant had right tennis elbow and rotator cuff tendinopathy, that both conditions were permanent and that anti-inflammatory medications were part of the right elbow condition treatment plan and physiotherapy was required for both conditions.[12] Dr Mehta completed a further medical certificate dated 10 January 2023, noting that the functional impact on the Applicant was pain and difficulty using both arms, particularly on the right side. Treatment was noted to be acupuncture and a splint.[13] On the same day Dr Mehta referred the Applicant for five sessions of physiotherapy under an enhanced care plan[14] and for an ultrasound of the right elbow and shoulder. Dr Wang reiterated the conclusions from the 28 December 2022 ultrasounds.[15]
[12] T10, folios 133 to 134.
[13] T11, folio 135.
[14] T11, folios 136 to 137.
[15] T11, folios 142 to 143.
Dr Mehta referred the Applicant for physiotherapy under a GP management plan on 24 January 2023.[16]
[16] T19, folios 171 to 172.
The Tribunal also considered a letter from Dr Doron Sher, orthopaedic surgeon, dated 1 February 2023.[17] Dr Sher noted that the Applicant had not undergone injections or physiotherapy and that on examination the Applicant had a full range of motion in his right elbow, with tender lateral epicondyle and a positive resisted extension test. His shoulder range of motion was complete with negative impingement signs and normal rotator cuff power. Some cervical spine irritability was noted. Dr Sher advised that the Applicant should commence anti-inflammatory tablets and a dedicated physiotherapy program and, if this failed, recommended that the Applicant consult with a sports medicine physician for non-surgical management for at least six months before considering surgical intervention. Dr Sher referred the Application for stretches and eccentric strength program on the same day.[18]
[17] T12, folio 146.
[18] T12, folio 147.
Dr Mehta authored medical certificates dated 21 March 2023, 23 June 2023 and 22 September 2023 advising that the Applicant was incapacitated due to bilateral tennis elbow and right rotator cuff tendinitis.[19]
[19] T13, folio 148, T15, folio 154, T16, folio 155.
An ultrasound of the left elbow was performed on 31 October 2023. Dr Ankur Srivastava, radiologist, concluded that the Applicant had mild lateral epicondylitis.[20]
[20] T17, folio 156.
On 3 November 2023 Dr Mehta referred the Applicant to Dr Ameer Ibrahim, sports and exercise physician for treatment of his bilateral tennis elbow.[21]
[21] T19, folio 170.
On 7 November 2023 Mr Nicholas Behinaein, physiotherapist, reported that the Applicant had received five physiotherapy sessions from 20 April to 3 May 2023.[22] Mr Behinaein reported that there was improvement with treatment, with the Applicant reporting a reduction in his pain symptoms and bilateral wrist strength and cervical spine range of movement had also increased.
[22] T20, folio 173.
On 4 January 2024 Dr Mehta authored medical certificate advising that the Applicant’s bilateral shoulder and elbow tendinopathies were worsening. Planned future treatment included acupuncture.[23]
[23] T25, folio 185.
The Tribunal also had the benefit of a further physiotherapy report from Mr Behinaein dated 13 September 2024.[24] Mr Behinaein referred to the Applicant’s bilateral lateral epicondylitis and cervical joint dysfunction and referred bilateral arm pain and numbness. He recommended that the Applicant undergo further physiotherapy and medical treatment due to significant impairments in strength, range of movement and high pain levels.
[24] A1.
In a medical certificate dated 14 October 2024 Dr Malia stated that the Applicant’s primary condition was worsening bilateral shoulder and elbow tendinopathies and that these conditions are likely to be permanent. Dr Malia opined that the Applicant’s prognosis was poor and his symptoms included the inability to life heavy objects. The current treatment was anti-inflammatory medication and physiotherapy and planned treatment included acupuncture.[25]
[25] A2.
After review of the medical evidence before me I am satisfied that the Applicant suffers from physical impairments.
Therefore, the first requirement for qualification for disability support pension as set down in paragraph 94(1)(a) of the Act is satisfied as the Applicant suffers from physical impairments.
Do the Applicant’s impairments rate at least 20 points under the Impairment Tables?
Paragraph 94(1)(b) of the Act provides that the second qualification for disability support pension is that the person’s impairments rate 20 points or more under the Impairment Tables.
Part 2 of the Impairment Tables explains the purpose and design of the Impairment Tables and how to apply them. It provides that a decision maker can only assign an impairment rating to an impairment if the condition has been diagnosed by an appropriately qualified medical practitioner, the condition has been reasonably treated, the condition has been stabilised and the condition and the resulting impairment is more likely than not, in light of the available evidence, to persist for more than 2 years.
The terms ‘reasonably treated’, ‘stabilised’ and ‘reasonable treatment’ are set down in subsections 8(5) to 8(7) of the Impairment Tables as follows:
Reasonably treated
(5) In determining whether a condition has been reasonably treated for the purposes of paragraph 8(3)(b), the following is to be considered:
(a) what treatment or rehabilitation has occurred in relation to the condition; and
(b) whether treatment is continuing or is planned in the next 2 years and is likely to result in significant functional improvement.
Stabilised
(6) For the purposes of paragraph 8(3)(c) a condition is stabilised if either:
(a) the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement is not expected, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note 1: For reasonable treatment see subsection 8(7).
Note 2: Degenerative conditions that result in progressive and irreversible loss of function, can be considered stabilised if reasonable treatment is not expected to result in significant functional improvement.
Reasonable treatment
(7) For the purposes of subsection 8(5) and (6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person;
(b) is at a reasonable cost;
(c) can reliably be expected to result in a significant functional improvement;
(d) is regularly undertaken or performed;
(e) has a high success rate; and
(f) carries a low risk to the person.
The Secretary contends that the Applicant’s upper limb conditions were diagnosed, but not reasonably treated and stabilised as at the date of his disability support pension application or in the 13 weeks thereafter. It is on this basis that the Secretary submits that an impairment rating cannot be assigned as the Applicant’s upper limb conditions are not full treated and stabilised.
Furthermore, the Secretary contends that there is insufficient medical evidence in respect of the applicants bilateral inguinal herniae and cervical spine condition to reach the requisite level of satisfaction that these conditions were fully treated, stabilised and more likely than not persist for more than 2 years.
I first considered the Applicant’s bilateral inguinal herniae. The medical evidence before me indicates that the Applicant underwent bilateral inguinal herniae repair prior to his application for the pension. There is no medical evidence to suggest that this condition continues to cause the Applicant any functional impairment, notwithstanding the fact that his evidence at hearing that the surgery has resulted in him experiencing ongoing pain and difficulties in sitting and standing. He reported that his surgeon stated that it was unusual that he should experience these symptoms and that it should improve over time.
The evidence before me indicates that this condition has been fully diagnosed and treated. The Applicant contends that it has not been stabilised and the resulting impairment is likely to persist. However, he has not provided corroborative evidence to support his assertions at all. In fact, there is no medical evidence before me to suggest that this condition has caused him any impairment as at the date of his claim or in the 13 weeks thereafter.
Therefore, I did not proceed to assign an impairment rating as the requirements set down in paragraphs 8(3)(c) and (d) of the Impairment Tables were not satisfied.
I next considered the Applicant’s cervical spine irritability, referred to by Dr Sher on examination on 1 February 2023.[26] The Applicant’s treating physiotherapist, Mr Behinaein, also referred to improvement of cervical spine range of movement from treatment in the period 20 April to 3 May 2023[27] and on 13 September 2024 to the Applicant’s cervical joint dysfunction.[28]
[26] T12, folio 146.
[27] T20, folio 173.
[28] A1.
Given the paucity of medical evidence before me in respect to the Applicant’s cervical spine condition I am not satisfied that this condition was fully diagnosed, treated and stabilised as at the date of his claim or in the 13 weeks thereafter.
It follows that I did not proceed to assign impairment rating under the relevant table as all of the requirements set down in subsection 8(3) of the Impairment Tables were not satisfied.
The Applicant contends that his bilateral epicondylosis and rotator cuff tendinitis are fully treated, stabilised and will continue to impact on his functioning indefinitely.
At hearing the Applicant testified that he did start taking anti-inflammatory medications in 2015 but stopped taking these medications recently because it did not provide any benefits to his pain symptoms. Additionally, this medication was causing him gastrointestinal symptoms. He had been using topical ointment, but he ceased doing that as well because it was not efficacious. He also used an elbow brace as recommended by Dr Sher. He confirmed that the did not consult a sports physician as he simply cannot afford the fees associated with such a consultation. He has also not consulted Dr Sher again given the cost. He has not discussed surgical options with his general practitioner because he had surgery for his herniae which still causes pain and, without a guarantee as to surgical success, he decided not to pursue this option.
The Applicant testified that he does not want to trial the recommended treatment described by Dr Sher, including ‘injections’ because once they wear off he will be in pain again. Furthermore, this treatment may result in side-effects, including pain. The Applicant also contends that his Christian beliefs prohibit him undertaking acupuncture treatment. In any event, because he uses his hands every day he does not believe that this type of treatment would result in any improvement, even temporarily. His condition is longstanding and the ‘damage is done’.

The Applicant testified that he is unable to undertake regular physiotherapy as the cost of this is prohibitive; instead, he follows a daily exercise regime recommended by his physiotherapist, Mr Behinaein. Despite his commitment to this exercise regime, the Applicant reports there has been no change to his pain levels or functioning. He reported this to Mr Behinaein, who advised him to continue with the exercises. He continues to discuss with his general practitioner whether there would be any benefit to him re-engaging with physiotherapy.
After reviewing the medical evidence before me I am satisfied that at the time of lodging his disability support pension claim the Applicant had been diagnosed with bilateral epicondylosis and right rotator cuff tendinitis.[29] I note that left rotator cuff tendinitis was only first referred to by Dr Mehta on 4 January 2024; no imaging corroborating this diagnosis is before the Tribunal. On 14 October 2024 Dr Malia also referred to worsening bilateral shoulder and elbow tendinopathies. [30] It is on this basis that I am satisfied that this condition was diagnosed within 13 weeks of the Applicant’s claim.[31]
[29] Noting that bilateral rotator cuff tendinitis was diagnosed by Dr Mehta on 4 January 2024: T25, folio 185
[30] A2
[31] See subclause 4(1) of Schedule 2 to the Administration Act.
The only evidence of specialist review before the Tribunal is from Dr Sher. [32] I accept the Applicant’s evidence that, consistent with Dr Sher’s advice, he did commence anti-inflammatory medications and undertook physiotherapy. Dr Sher also recommended non-surgical management by a sports physician if this failed and referred to surgical intervention if this failed.
[32] T12, folio 147
The evidence from his physiotherapist is that within five sessions in April and May 2023 there was a reduction in the Applicant’s pain symptoms and an increase in his bilateral wrist strength and cervical spine range of movement. [33] Mr Behinaein provided an update on 13 September 2024,[34] recommending that the Applicant undergo further physiotherapy and medical treatment.
[33] T20, folio 173.
[34] A1.
I accept the Applicant’s evidence that he has not been referred to a sports physician and that the cost of this would be prohibitive. I also accept his evidence that he would not consent to surgery as he is not persuaded that this would result in any significant improvement in his symptoms. However, there is no evidence before me to suggest that outpatient physiotherapy or specialist review at a public hospital is not available. Without such evidence I am not satisfied that reasonable treatment by way of specialist review and physiotherapy is not available to the Applicant at a reasonable cost.
I conclude that the Applicant’s conditions of bilateral epicondylosis and right rotator cuff tendinitis were not fully treated and stabilised as at the date of his claim or in the 13 weeks thereafter.
For completeness, I note that even if I were satisfied that the Applicant’s upper limb disorders were ‘permanent’ for the purposes of social security law, the Applicant’s evidence as to his upper limb functioning suggest that the functional impairments arising from his upper limb conditions are not severe; that is, they would not attract 20 points under the Table 2, which refers to the functional impact when performing activities requiring the use of the upper limbs.
I reach this conclusion based on the Applicant’s evidence at hearing where he confirmed that he is right hand dominant, that he can lift a 1L carton full of liquid, he can pick up light objects, such as carrying a light shopping bag, he can tie his shoelaces and does not require assistance to undertake hygiene tasks nor to dress (noting he wears pants with elasticised waists). He can manipulate his mobile telephone with his left hand to make telephone calls but not to play games. He cannot undertake tasks above head height or lift heavy objects.
Thus, the tribunal determined that overall the Applicant has a total impairment rating of nil points. As such, with a rating of less than 20 points he does not satisfy the provisions of paragraph 94(1)(b) of the Act.
Does the Applicant have a continuing inability to work or is he participating in a supported wage system program?
As I found that the Applicant does not satisfy paragraph 94(1)(b) of the Act, I was not required to consider his continuing inability to work or whether he has participated in a supported wage program.
As paragraphs 94(1)(b) and (c) of the Act are not satisfied the decision to reject the Applicant’s claim for disability support pension lodged on 2 November 2023 was correct.
DECISION
For the reasons given above, the decision under review is affirmed.

Date of hearing: 6 March 2025

The Applicant: Self-represented

Solicitors for the Respondent: Ms B Zhou, Services Australia

Date of hearing:	6 March 2025
The Applicant:	Self-represented
Solicitors for the Respondent:	Ms B Zhou, Services Australia