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

Newton and Secretary, Department of Social Services (Social services second review) [2021] AATA 4049 (4 November 2021)
Division:GENERAL DIVISION
File Number: 2020/6822
Re:Angela Newton
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms L Rieper, Member
Date:4 November 2021
Place:Sydney

The Tribunal affirms the decision under review.
............................SGD............................................
Ms L Rieper, Member
CATCHWORDS
DISABILITY SUPPORT PENSION – qualification for disability support pension – Applicant has multiple health conditions - conditions are fully diagnosed but were not fully treated or fully stabilised during the qualification period - Applicant does not have impairment rating of 20 points or more – Applicant does not have continuing inability to work – decision affirmed
LEGISLATION
Social Security Act 1991(Cth)
Social Security (Administration) Act 1999(Cth).
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Ms L Rieper, Member
4 November 2021

Ms Newton seeks a review of a decision made in the Social Security and Child Support Division of this Tribunal on 20 October 2020.
The issue to be determined is whether Ms Newton was qualified for disability support pension (DSP) following a claim made by her on 3 April 2020.[1]
[1] T61, T-Documents, pp. 393 – 406.
A hearing was held on 21 October 2021 via Microsoft Teams. Ms Newton appeared on her own behalf, and the Respondent was represented by Mr Gauci.
QUALIFICATION FOR DISABILITY SUPPORT PENSION
DSP is an income support payment for people with a disability that prevents them from working at least 15 hours per week.
Subsection 94(1) of the Social Security Act 1991 (Cth) (‘the Act’) sets out the qualifications for DSP:
94(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;…
The Tribunal must determine whether Ms Newton met the qualification for disability support pension at the date of her claim, or within 13 weeks of that date, which in this case would be by 3 July 2020 (‘the qualification period’). The Tribunal may consider medical evidence (or other evidence) provided subsequent to a claim but the evidence must pertain to Ms Newton’s condition and the status of her treatment at the time of her claim or during the qualification period.[2]
[2] See Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
In order to satisfy paragraph 94(1)(b) of the Act, Ms Newton must have an impairment rating of at least 20 points in total. The Impairment Tables are a Ministerial Determination under subsection 26(1) of the Act and are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Impairment Tables’).
The Impairment Tables set out the rules for assessing an impairment and assigning a rating. An impairment rating can only be given to a medical condition that is permanent. Permanent means[3]:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(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.
[3] See paragraph 6(4) of the Impairment Tables.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it is necessary to consider[4]:
(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.
[4] See paragraph 6(5) of the Impairment Tables.
Fully stabilised means[5]:
(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; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[5] See paragraph 6(6) of the Impairment Tables.
Reasonable treatment is treatment that[6]:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
[6] See paragraph 6(7) of the Impairment Tables.
The Respondent concedes, and the Tribunal agrees, that Ms Newton had medical conditions that cause impairment and, therefore, she satisfied paragraph 94(1)(a) of the Act during the qualification period.
It follows that the issues the Tribunal must determine are whether, during the qualification period, Ms Newton had:
(a)an impairment rating of 20 points or more under the Impairment Tables; and, if so
(b)a continuing inability to work as defined in subsection 94(2) of the Act.
CONSIDERATION
Spinal condition
Ms Newton appears to have injured her back on a number of occasions. There are references in the medical evidence to a motor vehicle accident on 16 January 2018,[7] a back injury at work on 4 May 2018[8] and another motor vehicle accident some three years prior to May 2018.[9]
[7] See T5, pp 226-228.
[8] See T4, p 102.
[9] See T10, p 234.
She was referred to neurosurgeon, Dr McKechnie, with lower back and lower neck pain on 16 April 2018.[10] An MRI he requested was reported, on 7 June 2018, as showing very minimal upper cervical disc bulges and facet joint arthropathy at the lower three lumbar levels with a very low grade disc bulge at L4/5 and L5/S1 without significant neural compromise.
[10] T7, p 231.
On 4 July 2018 Dr McKechnie reported that Ms Newton was clinically unchanged.[11] The Lyrica she had been taking had not helped and she had stopped taking Mobic. He had encouraged Ms Newton to continue with physiotherapy, suggesting she try hydrotherapy and prescribed Naprosyn.
[11] T17, p 244.
On 10 July 2018, Mr Pleffer, physiotherapist, reported to Dr Ong, Ms Newton’s general practitioner, that Ms Newton had made ‘fair’ progress but unfortunately, she was not committed to her rehabilitation as she regularly came late to appointments or missed them altogether.[12]
[12] T18, p 245.
In a further report dated 25 September 2018 Dr McKechnie reported that a bone scan had been unremarkable, and he had reassured Ms Newton regarding the findings.[13] They had discussed further treatment options including the possibility of a lumbar spine epidural cortisone injection and he had recommended that she continue with physiotherapy, core strengthening exercises and medication for now.
[13] T25, p 253.
Mr Pleffer wrote to Dr Ong again on 10 October 2018.[14] He reported that Ms Newton’s attendance record was poor as she had missed 14 out of 39 appointments. She was also anything up to an hour late to appointments. He noted that she was reluctant to do exercises for various reasons including sore shoulders, family visits and being too tired. He opined that Ms Newton was not committed to rehabilitation and as such would have difficulty returning to normal working hours and duties.
[14] T27, p 259.
Dr Ong’s clinical notes record that on 21 January 2019, Ms Newton reported that her ‘physio’ had stopped her treatments at present and Dr Ong had advised her to maintain her “self programmes”.[15]
[15] T59, p 335.
Dr McKechnie reported on 15 February 2019 that Ms Newton had received a CT guided L4/5 epidural cortisone injection.[16] He recommended that she continue with current medication and exercises.
[16] T32, p 264.
Ms Newton undertook nine sessions of hydrotherapy between 31 May 2019 and 30 August 2019.[17]
[17] T75, p 495.
Dr El-Haddad, rheumatologist, appears to have first seen Ms Newton on 22 October 2019.[18] On 12 November 2019 Dr El-Haddad reported to Dr Ong that Ms Newton was suffering from right hand pain, a work related lower back injury and bilateral knee pain.[19] He opined that the next appropriate course of treatment for Ms Newton was physiotherapy, particularly for the right knee but it would also be beneficial for the lower back.
[18] T47, pp. 289-290.
[19] T50, p 293-294.
On 3 March 2020 Dr El-Haddad reported that Ms Newton was continuing to engage in hydrotherapy which he recommended she continue if possible.[20]
[20] T58, p 307.
Dr El-Haddad wrote to Dr Ong again on 5 May 2020,[21] Ms Newton had had a recent flare up in her lower back pain. He had recommended physiotherapy for core muscle strengthening. He wrote a referral letter to Prime Physiotherapy, referring specifically to ‘gluteal strengthening/LBP management’.[22]
[21] T71, pp 487-488.
[22] T71, p 489.
Ms Newton attended her first physiotherapy session with Ms Chen, of Prime Physiotherapy, on 22 May 2020.[23]
[23] T77, p 497.
Dr El-Haddad reported to Dr Ong on 16 June 2020 that the physiotherapy had been helpful regarding the multiple musculoskeletal problems Ms Newton was experiencing.[24]
[24] ST1, p 589.
Dr Ong’s clinical notes include a record of a case conference with Ms Newton and her rehabilitation consultant on 11 August 2020.[25] Dr Ong noted that Ms Newton was under the care of multiple specialists and noted ‘expect improvements and to be able to incr work load’ and ‘consider engaging exercise physiologist after physio’
[25] ST1, p 662.
The Secretary’s position regarding Ms Newton’s spinal condition is that it was fully diagnosed but not fully treated or fully stabilised during the qualification period. The Secretary points to Ms Newton’s failure to comply with Mr Pleffer’s physiotherapy program and that she only commenced her treatment with Ms Chen in May 2020.
The Tribunal accepts that Ms Newton’s spinal condition was fully diagnosed at the time of her claim.
It does not appear to the Tribunal that the condition was fully stabilised. According to Dr El-Haddad’s report of 5 May 2020 there had been a recent flare up. That appears to have been at least part of the reason he recommended physiotherapy ‘for core muscle strengthening’.
The Tribunal is satisfied that physiotherapy is reasonable treatment within the meaning of paragraph 6(7) of the Impairment Tables, in that it is treatment that is available to Ms Newton, her treating practitioners clearly thought that it could result in substantial improvement in functional capacity, it is known to have a high success rate and carries low risk. The evidence shows that Ms Newton did not successfully complete her first attempt at physiotherapy. Her second attempt only commenced on 22 May 2020, which was after the claim had been made but before the end of the qualification period. The treatment appears to have continued well after the end of the qualification period.
Dr Ong’s note of 11 August 2020 does not specify which of Ms Newton’s medical conditions he was expecting to improve, but it is reasonable to assume that her back condition was one such condition. She had started physiotherapy some three months earlier with the aim of strengthening her core muscles. That is something that takes time and it is clear from Dr Ong’s note that physiotherapy was ongoing with the possibility of input from an exercise physiologist afterwards.
This evidence is sufficient to satisfy the Tribunal that during the qualification period Ms Newton’s spinal condition was not fully stabilised or fully treated because physiotherapy was ongoing and expected to result in improvement in Ms Newton’s condition such that she could increase her workload. That means an impairment rating cannot be assigned.
Fibromyalgia/Chronic pain condition
Ms Newton’s evidence was that she cannot distinguish between her fibromyalgia and chronic pain syndrome. That being the case the Tribunal has considered the conditions together even though the Secretary has treated each as a separate condition.
The diagnosis of chronic pain/fibromyalgia appears to have first been suggested by Dr El-Haddad. In his report to Dr Ong dated 17 December 2019[26] he noted that Ms Newton ‘continues to experience widespread pain all over the body… Clinically her symptoms are very consistent with mechanical causes in combination with chronic pain/fibromyalgia’. He noted that she was starting hydrotherapy which he strongly encouraged, and he had not changed her medication ‘however there may be some room for optimising these in the coming months’.
[26] T53, p 298.
Dr El-Haddad repeated the diagnosis in his report of 4 February 2020.[27] Ms Newton had reported feeling slightly worse than last year. Her condition had been complicated by psychological stress. He suggested a trial of Melatonin to assist with the significant sleep problem she was having.
[27] T56, pp 304-305.
On 3 March 2020 Dr El-Haddad reported that Ms Newton had ‘trialled Melatonin which partially improved her nocturnal symptoms including difficulty sleeping. She continues to engage in hydrotherapy and I recommend this should be continued if possible’.[28]
[28] T58, p 307.
On 7 April 2020 Dr El-Haddad reported that Ms Newton had run out of Melatonin which had ‘significantly worsened things’.[29] Ms Newton gave evidence to the Tribunal that when she stopped taking Melatonin her condition worsened and that her fibromyalgia is helped by sleep. She has still not recommenced taking Melatonin and she put that down to not being able to visit her doctor to obtain a prescription during the pandemic.
[29] ST1, p 581.
In his report of 5 May 2020, Dr El-Haddad noted that Ms Newton ‘continues to experience chronic widespread pain consistent with fibromyalgia. The treatment for this as you know, is primarily through analgesia and physical therapy such as physiotherapy’.[30] As noted above Dr El-Haddad recommended physiotherapy and wrote a referral letter on the same day. The evidence in relation to the physiotherapy treatment that was provided in 2020 is summarised at paragraphs ‎26 to ‎28 above.
[30] T71, pp 487-488.
Ms Newton also consulted Dr Bazina, neurosurgeon, in 2019 and 2020. On 5 August 2019 she noted that Ms Newton had high levels of pain catastrophisation and had explained to Ms Newton that her pain syndrome was called nocioplastic pain; a dysfunction of central sensitisation.[31]
[31] T40, p 276.
In a report dated 10 December 2019 Dr Bazina recommended further exercise therapy after Ms Newton had completed hydrotherapy, which could include a gym program.[32] She noted that ‘we remain in the contemplation phase in terms of goal setting’. She noted that months of cognitive behaviour therapy were required as well as attendance at a pain service, but she did not want to double up on the treatment.
[32] T52, p 297.
It appears that Ms Newton had some sort of disagreement with Dr Bazina because in her report of 25 May 2020 the doctor reported that Ms Newton had apologised for an interaction in their last consultation.[33]
[33] ST1, p 587.
The Secretary concedes that the chronic pain syndrome and fibromyalgia had been fully diagnosed before the qualification period but contends that they had not been fully treated. The Secretary points to the lack of evidence Ms Newton had undertaken the treatments recommended by Dr Bazina and the evidence that she had not completed the physiotherapy treatment or medication regime prescribed by Dr El-Haddad.
The Tribunal is satisfied that the evidence establishes that Ms Newton’s chronic pain syndrome/fibromyalgia was not fully treated during the qualification period. As already noted, Ms Newton did not successfully complete her first attempt at physiotherapy and whilst she commenced her second during the qualification period, it was not completed. It is also apparent from Dr Bazina’s reports that her opinion was that it was going to take a considerable period of time, at least some months, to treat Ms Newton’s condition. There is no evidence that the treatment was finalised by the end of the qualification period, but some evidence Ms Newton has not continued with the prescribed treatment (Melatonin). It is well documented that pharmacies and general medical practices have continued to operate throughout Australia during the various lockdowns and so Ms Newton’s reason for not continuing with Melatonin was perplexing.
As the Tribunal has found that Ms Newton’s condition was not fully treated during the qualification period, an impairment rating cannot be assigned.
Mental health condition
It is a requirement of the Impairment Tables that the diagnosis of a mental health condition 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). In addition, the self-reporting of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment (see Table 5 of the Impairment Tables).
Ms Newton first saw Dr Singh, consultant psychiatrist, on 26 February 2019.[34] He reported to Dr Ong on 5 April 2019 that he had seen her the previous week. She reported a persistently lowered mood, marked reduction in her usual pleasurable activities especially around social withdrawal along with often ruminative thinking about her current life[35]. She had complained of occasional panic attacks lasting for 30 minutes to an hour. She was taking Zoloft (100mg daily) with limited benefits so far. Dr Singh said that her history was suggestive of a major depressive disorder with anxiety symptoms with the differential diagnosis of adjustment disorder with mixed anxiety depression[36]. He had discussed various treatment options with Ms Newton including psychological counselling and encouraged her to see a psychologist using cognitive behaviour therapy principles. He had also suggested an increase in Zoloft to 150-200 mg daily. An alternative medication could be Valdoxan.
[34] See T72, p 490.
[35] T35, p. 267.
[36] T35, p 268.
A mental health plan was completed for Ms Newton on 14 May 2019.[37]
[37] T37, pp 272-273.
Ms Newton appears to have first seen a psychologist on 14 October 2019. On 22 April 2020 Mrs Cuk, psychologist, wrote to Centrelink advising that she had commenced treatment and it was ongoing.[38]
[38] T66, p 479.
Dr Singh reported to Dr Ong again on 16 April 2020.[39] He had had a teleconsultation with Ms Newton on that day. Ms Newton was continuing to struggle and reported ongoing depressive symptoms including persistent mood, lack of motivation, intermittent panic attacks along with intermittent crying spells and ongoing ruminations about the past & future. She reported fractured sleep patterns along with persistent themes of self-blame and guilt surrounding her condition. She was continuing to consult her psychologist once every 2-3 weeks. His suggested treatment plan included increasing Zoloft to 200mg per day and taking Melatonin for sleep disturbance.
[39] T65, p 478.
Dr Singh provided a further written report on 7 May 2020.[40] He gave the diagnosis as major depressive disorder and panic disorder. The current medication regime was Zoloft (200mg per day). He noted that Ms Newton’s longstanding illness continued to have significant impact on multiple functional domains of her life including self-care and self-management, leisure and recreational activities, social functioning and her overall work capacity.
[40] T72, p 490.

Dr Singh wrote to Dr Ong again on 27 May 2020.[41] He noted that Ms Newton’s mental state had improved since his last review a month ago. She was now taking the increased dosage of 200mg of Zoloft which she had said helped her in regulating her emotions and mood. Her anxiety was also under better control with a reduction in intensity and frequency. He recommended she continue on Zoloft 200mg per day although it could be increased to 250mg in coming weeks if required and that she continue Melatonin for sleep disturbance. He was to review Ms Newton in 2-3 months.
[41] ST1, p 588.
Dr Singh produced a further report on 1 September 2021[42] and whilst it provides a useful assessment of Ms Newton’s functional abilities at the time of the report, it does not relate to the qualification period and therefore it does not assist the Tribunal with this application.
[42] ST4, pp 677-678.
Ms Newton told the Tribunal that her mental health condition is getting worse. She continues to see a psychiatrist and psychologist and she remains on 200mg per day of Zoloft. As noted above, she said she had been unable to obtain a new prescription for Melatonin because of a COVID-19 lockdown and so she has not taken it for some time.
The Secretary accepts that Ms Newton’s mental health conditions were fully diagnosed within the qualification period. The Tribunal agrees with the concession and that the diagnosis was depressive disorder and panic disorder.
The Secretary contends that Ms Newton’s mental health condition had not been fully treated during the qualification period nor was it fully stabilised.
The Tribunal accepts the Secretary’s contention that the mental health condition was not fully treated or fully stabilised during the qualification period. At the time Ms Newton lodged her claim it was not fully treated because Dr Singh did not increase her Zoloft dosage to 200mg per day until 15 April 2020; some two weeks after the claim was made. The evidence shows that, during the 13-week period that followed the claim, Ms Newton’s mental health improved. In particular, on 27 May 2020 Dr Singh reported that Ms Newton’s mental state had improved however he left open the possibility of increasing the dosage further. Unfortunately, there are no consultation notes relating to Ms Newton’s mental state during the balance of the qualification period. The Tribunal is therefore left with evidence that part-way through the qualification period Ms Newton’s mental state had improved but no evidence that it was fully treated or stabilised by 3 July 2020. It is apparent that she had started seeing a psychologist only a few months earlier, but it is not clear how advanced that treatment was by the end of the qualification period. In addition, the option of increasing Ms Newton’s dosage of Zoloft still appears to have been under active consideration. The Tribunal therefore is not satisfied that Ms Newton was qualified for disability support pension within 13 weeks of her claim such that her claim should be considered an early claim as provided for by ss 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (Cth).
Gynaecological issues
Ms Newton underwent a hysteroscopy and curettage on 6 August 2019.[43] She had been diagnosed with menorrhagia and had heavy menstrual bleeding. An endometrial polyp was removed which was found to be benign.[44]
[43] T41, pp 280-281.
[44] T41, p 282.
The documents in evidence before the Tribunal include a patient health summary printed on 18 March 2020.[45] It includes the text of a report of a pelvic ultrasound dated 25 September 2019 which stated that certain features were ‘…borderline for diagnosis for polycystic ovaries’.[46]
[45] T59, pp 308-390.
[46] T59, p 377.
The notes of a consultation with Dr Ong on 8 November 2019 state that ‘said she has missed FE tab half of the time. To take daily. Repeat path in 2 weeks’.[47] A list of pathology results indicates that low FE was detected on 8 November 2019, 11 August 2020, 25 September 2020 and 21 January 2021.[48]
[47] ST1, p 652.
[48] ST1, p 605.
On 15 January 2020 Dr Marry from the Outpatient’s Department at Liverpool Hospital sent a fax to Dr Ong advising that Ms Newton ‘…did not attend post-op appointment today’.[49] Ms Newton did not recall the appointment when she was asked about it during the hearing but said that if she did not attend an appointment it was likely because of mental or physical health problems.
[49] T54, p 300.
Ms Newton next attended Dr Ong on 29 January 2020. There is no mention of Ms Newton’s gynaecological problems in his notes of that consultation other than a reference to Ms Newton being reminded to make an appointment with the ‘O + G clinic’.[50] There is no indication in the notes that the appointment took place during the qualification period.
[50] ST1, p 655.
Ms Newton told the Tribunal that she has ongoing problems. She still has very heavy periods. Sometimes she cannot get out of bed and sometimes they cause her to stay at home.
The Secretary’s position is that Ms Newton’s condition was fully diagnosed but not ongoing throughout the qualification period and any ongoing issue had not been fully treated and was not fully stabilised during the qualification period because Ms Newton did not attend the follow-up appointment for post-surgery review.
The Tribunal accepts that Ms Newton’s condition was fully diagnosed. At the time she underwent surgery the diagnosis was menorrhagia and it was later reported that she was borderline for diagnosis for polycystic ovaries.
Whether the condition was fully treated and fully stabilised is less clear, particularly as there is no comprehensive medical report detailing Ms Newton’s medical status during the qualification period. The Tribunal accepts that Ms Newton missed a post-operative check-up and appears not to have followed her general practitioner’s advice to attend her gynaecologist, but it is not clear what further treatment, if any was required. Merely failing to attend a follow-up appointment does not establish that additional treatment was required.
Table 10 of the Impairment Tables is the appropriate Table for assessing a functional impairment related to reproductive system functions. If the Tribunal was satisfied that Ms Newton’s condition was fully treated and fully stabilised during the qualification period, then the appropriate rating would be 5 points. A rating of 10 points or higher would not be appropriate. A rating of 10 points can only be given in circumstances where two of the following apply:
(a)the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b)the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;
(c)the person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
Given the intermittent nature of the symptoms described by Ms Newton, she would satisfy paragraph (c) but not (a) or (b) and so she does not meet the criteria for a rating of 10 points.
Neutropenia
The written medical evidence includes a copy of a document described as a flowsheet of Dr Viiala.[51] It appears that on 17 January 2020 he has handwritten on the document that Ms Newton had mild neutropenia and it was to be watched.
[51] T55, pp 301-303.
The Secretary accepts that the condition was fully diagnosed during the qualification period but argues that it was temporary and so no impairment rating can be assigned.
The documents in evidence include copies of the clinical notes from the general medical practice Ms Newton has been attending since at least 2017.[52] The notes of a surgery consultation on 13 August 2020 advise that ‘recent blood/pathology tests were normal’.[53] There is no indication in the clinical notes that Ms Newton has reported symptoms of neutropenia or that any treatment has been prescribed. The Tribunal is therefore not satisfied that during the qualification period Ms Newton had a condition that was more likely than not, in light of available evidence, to persist for more than 2 years. That means no impairment rating can be considered for the condition.
[52] ST1, pp 605 - 672.
[53] ST1, p 662.
CONCLUSIONS
At most Ms Newton has an impairment rating of 5 points under the Impairment Tables. This means that Ms Newton does not fulfil the qualification requirements set out in subsection 94(1) of the Act because she does not have an impairment of 20 points or more under the Impairment Tables.
It is therefore not necessary for the Tribunal to go on and consider whether Ms Newton has a continuing inability to work as defined in subsection 94(2) of the Act. However, for completeness the Tribunal notes that had that been necessary the Tribunal would have accepted the evidence of Dr Ong that Ms Newton was fit to work at least 15 hours per week during the qualification period.[54]
[54] See for example the medical certificate dated 13 February 2020 in which Dr Ong certified Ms Newton fit for moderate, light work for 6 hours per day, 3 days per week in the period 13 February 2020 to 27 March 2020 (T57, p 306).
The Tribunal must affirm the decision under review.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Ms L Rieper, Member.

...........................SGD.............................................
Associate
Dated: 4 November 2021

Date of hearing: 21 October 2021

Applicant: Ms A Newton

Solicitors for the Respondent: Mr M Gauci, Hunt & Hunt Lawyers

[2021] AATA 4049

4 November 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	21 October 2021
Applicant:	Ms A Newton
Solicitors for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers