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

[2023] AATA 645

Peake and Secretary, Department of Social Services (Social services second review) [2023] AATA 645 (31 March 2023)

Division:GENERAL DIVISION

File Number(s):      2022/7695

Re:Debra Peake

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member J Rau SC

Date:31 March 2023

Place:Adelaide

The decision under review is affirmed.

....................[sgnd].......................................

Senior Member J Rau SC

Catchwords

SOCIAL SECURITY – pensions, benefits and allowances – claim for Disability Support Pension rejected – whether applicant’s conditions were fully diagnosed, treated and stabilised during the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – decision under review is affirmed.

Legislation

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

Cases

Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Senior Member J Rau SC

31 March 2023

BACKGROUND

1. On 27 August 2021, the Applicant lodged a claim for a Disability Support Pension (“DSP”) based on “spondyloarthritic syndrome” and “migratory polyarthralgia”.[1]

   [1] Exhibit 2, T8, p 70.

2. On 14 December 2021, the Applicant’s DSP claim was rejected on the basis that she did not have an impairment rating of 20 points or more (“the primary decision”).[2]

   [2] Ibid, T33, pp 166-167.

3. The Applicant applied to have the primary decision reviewed.

4. On 4 April 2022, the Authorised Review Officer (“ARO”) affirmed the primary decision.[3]

   [3] Ibid, T42, pp 189-197.

5. On 23 June 2022, the Applicant sought a review of the ARO’s decision by the AAT’s Social Services & Child Support Division (“AAT1”).

6. On 2 September 2022, the AAT1 affirmed the ARO’s decision.

7. By application dated 19 September 2022, the Applicant now seeks a second review of the decision made by the AAT1 on 2 September 2022, which affirmed a decision to reject the Applicant’s DSP claim.

8. This matter was heard on 14 March 2023. The Applicant was self-represented. The Respondent was represented by Mr Chan of Sparke Helmore Lawyers. At the Applicant’s request, the parties appeared by telephone.

   QUALIFICATION FOR DISABILITY SUPPORT PENSION

9. S 94(1) of the Social Security Act, (“the Act”) provides:

   A person is qualified for disability support pension is:

   (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

   (d)the person has turned 16; and

   (da)     in a case where the following apply:

   (i)the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;

   (ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person's locally accessible labour market;

   (iii)if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;

   the person meets any participation requirements that apply to the person under section 94A; and

   (e)the person either:

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 yearsqualifyingAustralian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)  is not an Australian resident; and

   (B)  is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident; and

   (ea)  one of the following applies:

   (i)    the person is an Australian resident;

   (ia) the person is absent from Australia and the Secretary has made a  determination in relation to the person under subsection 1218AAA(1);

   (ii)    the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.[4]

   [4] Section 94(1) of the Act 1991 (Cth).

10. The Applicant is to be assessed as at the date that her claim was lodged (27 August 2021), or within the following 13 weeks.  The qualification period is therefore from 27 August 2021 to 26 November 2021.[5]  

    [5] See Bobera v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34].

11. The Respondent accepts that the Applicant satisfies s 94(1) (a) of the Act.[6]

    [6] Exhibit 1 at [7].

12. The Respondent contends that the Applicant did not however satisfy s 94 (1) (b) or (c) of the Act. The Respondent contends that as at the qualification period, the Applicant’s conditions were as follows:

    “(a) Arthritis which affects her back and foot – FDTA to be awarded 15 points in total, comprising of 5 points under Tables 3 and 10 points under Table 4;

    (b) Right shoulder bursitis (the shoulder condition) – fully diagnosed but not fully treated or stabilised

    (c) Osteoarthritis in her thumb/hand (the hand condition) – fully diagnosed, but not fully treated or stabilised.”[7]

    [7] Ibid at [16].

    Does Ms Peake have an impairment of 20 points or more under the impairment tables?

13. The Impairment Tables set out rules for when an impairment rating can be assigned and provide a rating system. To be given a rating under the Impairment Tables, the condition causing the impairment must be permanent, and the impairment must be more likely than not, in light of available evidence, to persist for more than two years.[8]

    [8] Clause 6(3) of the Impairment Tables.

14. To be a permanent condition, the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated, fully stabilised and more likely than not to persist for two years.[9]

    [9] Clause 6(4) of the Impairment Tables.

15. In deciding if a condition is fully diagnosed and treated, corroborating evidence of the condition, the treatment and rehabilitation that has occurred and whether treatment is continuing or planned in the next 2 years is to be considered.[10]

    [10] Clause 6(5) of the Impairment Tables.

16. The Impairment Tables set out at clause 6(6) when a condition is considered fully stabilised.  A condition is fully stabilised if the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two years.[11] Reasonable treatment is treatment that can, among other things, reliably be expected to result in a substantial improvement in functional capacity,[12] and that has a high success rate.[13] 

    Ms Peake’s Conditions

    [11] Clause 6(6)(a) of the Impairment Tables.

    [12] Clause 6(7)(c) of the Impairment Tables.

    [13] Clause 6(7)(e) of the Impairment Tables.

    Arthritis

17. In evidence, the Applicant said that her primary concerns were her right foot and her back. Her right foot was the source of permanent ongoing incapacity, whereas her back caused intermittent, but debilitating pain.

18. Between February and August of 2020, the Applicant completed an aged care course. This included 120 hours of placement.

19. The Applicant commenced working in aged care in about March of 2021, but only lasted for a short time because of swelling in her right foot. In June of 2021, she attempted to return to her work at Woolworths, but only lasted part of one shift.

20. On 8 June 2021, the Applicant started wearing a moonboot to manage her right foot symptoms. She told the Tribunal that after a couple of months she had obtained some relief from her symptoms and that her condition had improved.

21. The Applicant agreed that the summary contained in the Disability Medical Assessment dated 28 March 2022, properly summarises her condition during the entitlement period. This states as follows:

    “At the DMA Mrs Peake advised that her pain has relatively better after started using the moon boot and she can effectively mobilise for 350-400 meters and then has to rest. She can stand for 20-30 mins but frequently change positions.

    Dr Leena, GP, 04/02/2022

    Dr Murthy, Rheumatologist 07/12/2021

    Table 04 – Spinal function

    10

    (1)(c)

    There is a moderate functional impact on activities involving spinal function.

    She is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    She is unable to bend forward to pick up a light object placed at knee height.

    Mrs Peak advised difficulties in bending and seated for more than 25-30 mins, in which she has to change positions and need support to get from seated.

    Dr Leena, GP, 15/03/2022

    ……

    Name of THP who verified diagnosis:                   Dr Imad Hussain

    ……

    Evidence to support recommendation:                There is no such medical evidence to consider the condition as FDTS and Ms Peake is coping and suggested that she has not sought medical attention for quite sometime no attempt made clarify this condition with GP.”[14]

    [14]Exhibit 2, T40, p 185.

22. The Applicant told the Tribunal that she had no issues with her head or neck.

23. In respect of the arthritis condition, the Respondent contends:

    “The medical evidence refers to various arthritis conditions which predominantly affect the Applicant’s back and foot. These conditions are variously referred to as spondylarthritis, polyarthritis, reactive arthritis and osteoarthritis in the medical evidence. For convenience, that condition or conditions which relate to the Applicant’s back and foot will be referred to as arthritis for the purposes of their Statement of Facts, Issues and Contentions.

    On the basis of the evidence from Dr Hussain, GP and in the context of specialist treatment at various hospitals, the Secretary accepts that the Applicant’s arthritis condition was FDTS because further reasonable treatment was unlikely to result in a significant functional improvement to a level enabling the Applicant to return to work in the next two years. The Applicant has had medication (prednisolone/colebix and methotrexate, naproxyn – and physiotherapy for her foot and has had numerous scans taken. She has also used a moon boot since July 2021 to manage her foot condition. Whilst the Applicant had been referred to an orthopaedic surgeon during the qualification period, the evidence of Dr Leena, GP indicated that a review would not be likely for 12 months after and that surgery would be unlikely to be available for at least another 24 months.

    In respect of the lower limb impairment from the FDTS arthritis condition Dr Leena, GP, provided a report dated 11 March 2022, and an addendum to that report on 15 March 2022, which allocated 5 points to the Applicant’s lower limb under Table 3. Dr Leena noted that the Applicant met each of the criteria for a mild impairment, but did not consider the Applicant met the criteria for a moderate 10 point impairment under Table 3.

    The Respondent contends the Applicant did not meet the criteria for a 10 point impairment rating under Table 3 during the qualification period because:

    a.    The Applicant was able to mobilise effectively for 350 – 400 metres when wearing a ‘moon boot’;

    b.    Whist the Applicant has “some difficulty” with steps and stairs, she was not unable to navigate them without assistance;

    c.     The Applicant was able to stand for 20-30 minutes.

    In respect of the spinal impairment arising from the FDTS arthritis condition Dr Leena allocated 10 points under Table 4. That assessment was made on the basis that the Applicant was able to sit in a car for at least 30 minutes, but was unable to bend forward to pick up a light object placed at knee height.

    The Respondent contends the Applicant did not meet the criteria for a 20 point impairment rating under Table 4 during the qualification period because during the qualification period, the Applicant was able to:

    a.    perform overhead activities, including hanging clothes on the line;

    b.    move her neck without difficulty;

    c.     bend forward to knee height (but would have difficulty picking up a light object at that height) and hang out washing;

    d.    remain seated for at least 25-30 minutes;

    Both the ARO and the AAT1 relied upon Dr Leena’s evidence and adopted her allocation of points under those impairment Tables. The Secretary contends that this Tribunal should accept Dr Leena’s evidence. On that basis, the Tribunal should find that the arthritis condition was FDTS and allocate 5 points under Table 3 and 10 points under Table 4.”[15]

    [15] Exhibit 1 at [19]-[25].

24. I am satisfied that this condition was fully diagnosed, treated and stabilised during the relevant period.

25. This necessitates an assessment of functional impairment under s 94(1) (b) of the Act.

26. On 11 March 2022, Dr Leena, the Applicant’s GP at the time, indicated that she was suffering from a” mild functional impact on activities using lower limbs”.[16]

    [16] Exhibit 2, T8, pp 105-112.

27. An application of the Impairment Tables gave a score of 5 points under Table 3. This table states[17]:

    [17] Table 3 of the Impairment Tables.

Introduction to Table 3

·     Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·     Self-report of symptoms alone is sufficient.

·     There must be corroborating evidence of the person’s impairment.

·     Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

o   a report from the person’s treating doctor;

o   a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence or whole or part of lower limb);

o   a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

o   results of diagnostic tests (e.g. X-Rays or other imagery);

o   results of physical tests or assessments.

·     For the purpose of this Table lower limbs extend from the hips to the toes.

Points

Descriptors

0

There is no functional impact on activities requiring use of the lower limbs.

(1)   The person can:

(a)     walk without difficulty on a variety of different terrains and at varying speeds; and

(b)     walk without difficulty around the home and community; and

(c)     (c) kneel or squat and rise back to a standing position without difficulty; and

(d)     stand unaided for at least 10 minutes; and

(e)     use stairs without difficulty.

5

There is a mild functional impact on activities using lower limbs.

(1)  At least one of the following applies:

(a)    the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)    the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)    the person has some difficulty climbing stairs; and

(2)  At least one of the following applies:

(a)    the person is unable to stand for more than 10 minutes;

(b)    the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

There is a moderate functional impact on activities using lower limbs.

(1)    At least one of the following applies:

(a)    the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)    the person is unable to use stairs or steps without assistance; or

(c)    the person is unable to stand for more than 5 minutes; and

(2)    The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)    This impairment rating level includes a person who can:

(a)    move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)    move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20

There is a severe functional impact on activities using lower limbs.

(1)    The person:

(a)    is unable to do any of the following:

(i)       walk around a shopping centre or supermarket without assistance;

(ii)      walk from the carpark into a shopping centre or supermarket without assistance;

(iii)     stand up from a sitting position without assistance; and

(b)  requires assistance to use public transport.

(2)    This impairment rating level includes a person who requires assistance to:

(a)  move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)  move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

30

There is an extreme functional impact on activities using lower limbs.

(1)    The person is unable to mobilise independently.

1. The Applicant also has a spinal condition.

2. I am satisfied that this condition was fully diagnosed, treated and stabilised during the relevant period.

3. This necessitates an assessment of functional impairment under s 94(1) (b) of the Act.

4. On 15 March 2022, Dr Leena, the Applicant’s GP at the time, indicated that she was suffering from a” moderate functional impact on activities involving spinal function”.[18]

   [18] Ibid, T8, p 112.

5. An application of the Impairment Tables gave a score of 10 points under Table 4.[19] This table states:

   [19] Table 4 of the Impairment Tables.

Introduction to Table 4

·     Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

·     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:

o   a report from the person’s treating doctor;

o   a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spina; cord tumours, arthritis or osteoporosis involving the spine);

o   a report from a physiotherapist or other rehabilitation practitioner confirming loss or range of movement in the spine or other effects of spinal disease or injury.

·     Un using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

Points

Descriptors

0

There is no functional impact on activities involving spinal function.

(1)    The person can:

(a)    bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)    turn their trunk from side to side; and

(c)    turn their head to look to the sides or upwards

5

There is a mild functional impact on activities involving spinal function.

(1)    The person has some difficulty in:

(a)    activities over head height (e.g. activities requiring the person to look upwards); or

(b)    bending to knee level and straightening up again without difficulty; or

(c)    turning their trunk or moving their head (e.g. to look to the sides or upwards).

10

There is a moderate functional impact on activities involving spinal function.

(1)    The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)   the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)   the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)   the person is unable to bend forward to pick up a light object placed at knee height; or

(d)   the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)     The person is unable to:

(a)  perform any overhead activities; or

(b)  turn their head, or bend their neck, without moving their trunk; or

(c)   bend forward to pick up a light object from a desk or table; or

(d)  remain seated for at least 10 minutes.

30

There is an extreme functional impact on activities involving spinal function.

(1)    The person is:

(a)  completely unable to perform activities involving spinal function; or

(b)   unable to bend or turn their trunk or their neck to complete the most basic of daily activities (e.g. dressing, bathing, showering or light housework).

Right shoulder bursitis a hand conditions

1. The Applicant told the Tribunal that she had an injury to her left shoulder when working for Woolworths in 2013. In May 2013 she had an operation to repair this injury. She undertook post-operative remedial physiotherapy. The Applicant also had some problems with her left shoulder. She told the Tribunal that during the qualification period, her shoulders did not prevent her working and that they were an irritation only.

2. In respect of these conditions, the Respondent contends:

   “On the basis of the evidence from Dr Hussain, GP, the Secretary accepts that the Applicant’s shoulder condition was fully diagnosed. The Secretary also accepts that the hand condition is fully diagnosed in light of the diagnosis of “arthritic change with associated mild inflammation” from the Royal Adelaide Hospital. However, neither condition was fully treated or stabilised for the following reasons

   With respect to the shoulder condition, critically, as of the late 2019, it was intended that the Applicant undergo physiotherapy to improve her shoulder condition. There is no evidence that the Applicant underwent that physiotherapy for her shoulder. Instead, any physiotherapy she underwent was for her foot condition. The Applicant has filed evidence evidencing physiotherapy in 2013. However, given the significant passage of time, the Secretary contents that the physiotherapy was not the physiotherapy contemplated by Dr Hussain. Before the AAT1, she confirmed that she had not trialled physiotherapy for her shoulder. Rather, treatment was confined to steroid injections. Furthermore, it appears that the shoulder condition no longer presented any functional impairment as it had “settled”. For that reason, in a report dated 29 October 2021, Dr Murthy, rheumatologist, overserved that the Applicant’s “upper limb joints moved well otherwise” aside from some tenderness along the base of her right thumb. The shoulder condition was therefore not fully treated and stabilised and even if it was, it did not result in any functional impairment.

   As for the hand condition, there was very limited evidence as to what treatment the Applicant has obtained or was still trialling as at the qualification period. It appears that she was on various pain medication. However, that medication was not specifically directed at he hand and before the AAT1, the Applicant confirmed that she had not been treated for it, and that future treatment was a possibility. Given the lack of treatment, the Secretary contends that the hand condition was not fully treated and stabilised.

   Therefore, no impairment points can be allocated to the condition under Table 2.

   Furthermore, and in any event, even if the shoulder or hand conditions were fully treated and stabilised, there remains little evidence of the conditions’ functional impact. As the Impairment Tables make plain, there must be corroborating evidence of any impairment; the self-report of symptoms is insufficient. In all the circumstances, the Secretary contends that the shoulder condition attracted 0 impairment points.”[20]

   [20] Exhibit 1 at [27]-[31].

3. A medical certificate from GP Dr Hussain dated 17 September 2019 and 30 January 2020 noted “subacromial bursitis of the right shoulder” and that it was to be treated, with a steroid injection and physiotherapy.[21] There is no evidence that this occurred during the qualification period, or thereafter.

   [21] Exhibit 2, T2, p 9.

4. The Applicant told the Tribunal that she did have post-operative physiotherapy and that it was effective in improving her condition. She described her symptoms during the qualification period as an “irritation”. She was very clear from her evidence that these issues were not contributing to her overall incapacity to work.

Introduction to Table 2

·     Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.

·     The diagnosis of the condition must be made by an appropriate 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 purposes of this Table include, but are not limited to, the following:

o   a report from the person’s treating doctor;

o   a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);

o   a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise psychologist) confirming the functional impact;

o   results of diagnostic tests (e.g. X-Rays or other imagery);

o   result of physical tests or assessments.

·     For the purposes of this Table upper limbs extend from the shoulder to the fingers.

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1)    The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is mild functional impact on activities using hands or arms.

(1)    The person can manage most daily activities requiring the use of hands and arms, but has some difficulty with most of the following”

(a)  picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)  handling very small objects (e.g. coins);

(c)   doing up buttons;

(d)  reaching up or out to pick up objects.

10

There is moderate functional impact on activities using hands or arms.

(1)    The person has difficulty with most of the following:

(a)  picking up 1 litre carton of full liquid;

(b)  picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)   holding and using a pen or pencil;

(d)  doing up buttons or tying shoelaces;

(e)  using a standard computer keyboard;

(f)    unscrewing a lid on a soft-drink bottle.

20

There is severe functional impact on activities using hands or arms.

(1)    Most of the following apply to the person:

(a)  the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

(b)  the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prothesis or assistive device that they have and usually use;

(c)   the person has difficulty using a computer keyboard despite appropriate adaptations;

(d)  the person has severe difficulty using a pen or pencil;

(e)  the person has severe difficulty turning the pages of a book without assistance.

30

There is extreme functional impact on activities using hands or arms.

(1)    The person is unable to perform any activities requiring the use of both hands or both arms.

1. I am satisfied having regard to the Applicant’s evidence, that irrespective of whether these right shoulder and hand conditions were fully diagnosed, treated and stabilised during the relevant period, they did not result in a functional impact on activities using hands or arms during the qualifying period.

2. It follows that no functional impact can be rated under the relevant Table.[22]

   [22] Section 94(1) (b) of the Act.

   Impairment rating

3. The Applicant did not, during the qualification period, have an impairment rating of 20 points[23] under s 94 (1) (b). It is not therefore necessary to consider whether she had a continuing inability to work under s 94 (1) (c)

   [23] She had 15 points.

4. I note that the Applicant indicated to the Tribunal that her circumstances may have materially deteriorated since November of 2021. If this is so, there is nothing to preclude the Applicant making a fresh application based on her current circumstances.

5. The Tribunal affirms the decision under review. 

   ………….……[sgnd]………………………

   Legal Associate  

   Dated: 31 March 2023

Date of hearing:	14 March 2023
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Alex Chan, Sparke Helmore Lawyers