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

[2019] AATA 5293

Scharf and Secretary, Department of Social Services (Social services second review) [2019] AATA 5293 (10 December 2019)

Division:GENERAL DIVISION

File Number:          2018/7130

Re:Gregory Scharf

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Belinda Pola, Senior Member

Date:10 December 2019

Place:Brisbane

The decision under review is affirmed.

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

Belinda Pola, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – DSP – Impairment - Whether the applicant’s medical conditions were fully diagnosed, fully treated and fully stabilised – Where condition does not cause functional impairment – What is reasonable treatment – Whether 20 points or more under the Impairment Tables during the Relevant Period – Decision under review affirmed.

Legislation

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

Social Security (Administration) Act 1999 (Cth)

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

Social Security Act 1991 (Cth)

Cases

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012)

Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419

Fanning and Secretary, Department of Social Services [2014] AATA 447 (4 July 2014)

Faulkner and Comcare [2007] AATA 1541 [27].

Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007)

REASONS FOR DECISION

Belinda Pola, Senior Member

10 December 2019

BACKGROUND

1. On 29 May 2017, the Applicant, Mr Gregory Scharf lodged a claim for a Disability Support Pension (‘DSP’) with the Department of Human Services (‘the Department’)[1].

   [1]     Exhibit R1, T21, pages 111 to 141.

2. On 5 June 2017 the Department made a decision to reject the Applicant’s claim for DSP[2]. This decision was reviewed and affirmed by an Authorised Review officer (‘ARO’) on     27 April 2018[3].

   [2]     Exhibit R1, T23, pages 143 and 144.

   [3]     Exhibit R1, T30, pages 168 to 173.

3. On 16 May 2018, the Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (‘Tribunal’) to review the Department’s decision to reject his claim for the DSP[4]. The SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim on 21 September 2018[5].

   [4]     Exhibit R1, T33, page 177.

   [5]     Exhibit R1, T2, pages 3 to 9.

4. The Applicant applied to the Tribunal for a second review of this decision on  29 November 2018[6].

   [6]     Exhibit R1, T1, pages 1 and 2.

5. For clarity, the Applicant has lodged several claims for the DSP, and has subsequently been granted a DSP from 14 November 2019. The effect of the second review of this Application brings into question whether the Applicant is entitled to a payment in arrears. The question of entitlement to a payment in arrears rests on whether the Applicant was eligible for DSP at the date of lodgement for this Application (being 29 May 2017[7]), or within 13 weeks of lodging the Application, that is by 28 August 2017.

   [7]     Exhibit R1, T21, pages 111 to 141.

   JURISDICTION

6. This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.

7. Section 179(1) of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’), provides that:

   (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.

8. The Tribunal has jurisdiction to hear this application. 

   ISSUES

9. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 29 May 2017, or within 13 weeks thereafter, that is by 28 August 2017.

10. For the purposes of this application and on the evidence submitted, it is clear the Applicant suffered impairments during the qualification period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted that the Applicant had impairments during the qualification period for the purposes of s94(1)(a)[8].

    [8]     Exhibit R4, paragraph 5.20, page 8.

11. The issue for the Tribunal to resolve in respect of the Applicant’s claim for DSP is:

    (i)Whether the Applicant’s impairments attract 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (‘the Determination’) within the qualification period; and

    (ii)If so, did the Applicant have a continuing inability to work?

    RELEVANT LEGISLATIVE PROVISIONS

12. The medical qualification criteria regarding eligibility for DSP are set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act:

    94   Qualification for disability support pension

    (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

    …

13. To be medically qualified for a DSP a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.

14. Section 26(1) of the Act provides that, “the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

15. It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one on the material before the Tribunal[10]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

    [9]     Faulkner and Comcare [2007] AATA 1541 [27].

    [10]    Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.

16. Section 6 of the Determination provides that, “the impairment of a person must 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”[11]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[12].

    [11] Section 6(1) of the Determination.

    [12] Section 6(2) of the Determination.

17. An impairment rating may only be assigned to an impairment if[13]:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.

    [13] Section 6(3) of the Determination.

18. Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[14]:

    ·be fully diagnosed by an appropriately qualified medical practitioner; and

    ·be fully treated; and

    ·be fully stabilised; and

    ·be more likely than not, in light of available evidence, to persist for more than 2 years.

    [14] Section 6(4) of the Determination.

19. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[15]:

    (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.

    [15] Section 6(5) of the Determination.

20. A condition is considered fully stabilised if[16]:

    (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.

    [16] Section 6(6) of the Determination.

21. Reasonable treatment is a treatment that[17]:

    (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.

    [17] Section 6(7) of the Determination.

22. Section 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.

23. Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.

24. In particular, s8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

25. While s11(1)(c) of the Determination provides that in assigning an impairment rating, “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

26. As previously detailed in paragraph 12 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a ‘continuing inability to work’. Section 94(2) of the Act requires that:

    (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.

27. A severe impairment is defined in s94(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.

28. 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 for the purposes of this subsection.

29. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).

    QUALIFICATION PERIOD

30. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the qualification period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[18].

    [18] Part 2, clause 4(1)(d) of the Administration Act.

31. For the purposes of this decision, the day which the Applicant’s claim for DSP was registered with Centrelink was 29 May 2017[19], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 28 August 2017.

    [19]    Exhibit R1, T21, pages 111 to 141.

32. This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[20].

    [20]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012) [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007) [1]; Fanning and Secretary, Department of Social Services [2014] AATA 447 (4 July 2014) [31].

    CONSIDERATION

33. The Application was heard in Brisbane on 26 November 2019, with the Applicant appearing in person before the Tribunal (with a support person present, Mr Fitzgerald). The Respondent was represented in person by Mr Jake Kyranis (Senior Associate, Sparke Helmore Lawyers). The Tribunal considered oral submissions made by the Applicant and the Respondent in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).

34. The Tribunal is satisfied after review of the evidence before it that the Applicant suffered impairments during the qualification period in terms of s94(1)(a) of the Act. This point was accepted by the Respondent[21]. In the Applicant’s original claim, the following impairments were listed in the medical details section, “HIV, Depression, Skin Cancers on Face etc”[22]. A further impairment was identified in the documentation submitted for the Tribunal’s consideration prior to the qualification period, which was a diagnosis for Hepatitis C[23]. The Tribunal finds the following impairments relevant to this Application:

    ·HIV

    ·Hepatitis C

    ·Psychological Condition

    ·Skin Condition

    [21]    Exhibit R4, page 8, paragraph 5.20.

    [22]    Exhibit R1, T21, page 136.

    [23]    Exhibit R1, T10, page 65.

35. For completeness, further impairments had been submitted in evidence to the Tribunal, however diagnosis for these impairments were outside the qualification period, and are therefore unable to be considered as part of this Application (a point which was accepted by the Applicant). For the purposes of this Application, the above mentioned impairments in paragraph 34 of this Decision will be examined by the Tribunal.

    HIV

36. The Tribunal is satisfied that the Applicant’s HIV condition was fully diagnosed, fully treated and fully stabilised, during the qualification period in accordance with the Determination; on the basis of submitted evidence from Dr Joe McCormack (Infectious Disease Physician) and Dr Manuel Avivar-Fernandez (General Practitioner)[24]. This was accepted by the Respondent[25].

    [24]    Exhibit R1, T10, page 65; and T17, page 98.

    [25]    Exhibit R4, page 8, paragraph 5.22.

37. The Tribunal is required to determine an Impairment Rating for the Applicant’s HIV condition, with the relevant Impairment Table being Table 1 - Functions requiring Physical Exertion and Stamina[26].

    [26]    The Determination, page 12.

38. The Applicant confirmed previous evidence given to the SSCSD of the Tribunal that he accepts that the HIV condition does not cause any functional impairment. As the Applicant accepts that there is no loss of function as a result of their HIV condition, the Tribunal assigns a rating of zero points under Table 1 - Functions requiring Physical Exertion and Stamina[27].

    [27]    The Determination, page 12.

    Hepatitis C

39. The Tribunal is satisfied that the Applicant’s Hepatitis C condition was fully diagnosed, fully treated, and fully stabilised during the qualification period in accordance with the Determination; on the basis of submitted evidence from Dr Joe McCormack (Infectious Disease Physician)[28]. This was accepted by the Respondent[29].

    [28]    Exhibit R1, T10, page 65.

    [29]    Exhibit R4, page 8, paragraph 5.26.

40. The Tribunal is required to determine an Impairment Rating for the Applicant’s Hepatitis C condition, with the relevant Impairment Table being Table 1 - Functions requiring Physical Exertion and Stamina[30].

    [30]    The Determination, page 12.

41. The Applicant provided evidence to the Tribunal that their Hepatitis C condition did not have a functional impact. As the Applicant accepts that there is no loss of function as a result of their Hepatitis C condition, the Tribunal assigns a rating of zero points under Table 1 - Functions requiring Physical Exertion and Stamina[31].

    [31]    The Determination, page 12.

    Psychological Condition

42. The applicant’s psychological condition was diagnosed by a Clinical Psychologist, Mr Olaf Handrick in a letter of 17 September 2016, which stated:

    “I have been seeing Mr Scharf [the Applicant] since August 2016. He was referred for Depression and Anxiety and I noted after discussion with his GP that he was suffering from this condition a considerable time before a formal referral to me was made… I would consider the diagnosis of stress induced Depression (reactive) combined with Dysthimia as appropriate diagnosis at point in time according to DSM-5 criteria. Given the multitude of other health problems of Mr Scharf [the Applicant] I do not forecast recovery within two years”[32]. [sic]

    [32]    Exhibit R1, T9, page 64 (refer to Exhibit R1, T14, page 77 for confirmation of date of letter).

43. An addendum to the letter of 17 September 2016 by Mr Olaf Handrick of  7 January 2017, further stated:

    “this is an addendum report to my previous letter dated 17^th of September 2016… In my clinical opinion formed after 11 sessions of psychological therapy, Mr Scharf [the Applicant] is suffering from depression secondary to HIV with severe mood swings at times when under stress. The formal diagnosis akin to DSM-V would be chronic depression… please accept the diagnosis in retrospect. With help as well as without help the condition (depression) is somewhat treatment resistant and requires continues involvement of a psychologist without an expectation that the condition will significantly improve. In my considered clinical opinion the condition, which of course fluctuate depending on external stressors as well as imun system status will affect Mr Scharf’s [the Applicant’s] ability to concentrate, to stay focused, to maintain motivation and to follow instructions in a fast paced working environment… I am unable to comment on physical shortcomings…Currently we are working on behavioural activation and pscho-education about the benefits of an AD. It is anticipated that Mr Scharf’s [the Applicant’s] psychological condition despite clinical care will plateau if not deteriorate within the next two years”[33]. [sic]

    [underline added for emphasis]

    [33]    Exhibit R1, T14, page 77.

1. Table 5 – Mental Health Function of the Determination[34] expressly stipulates that the diagnosis of a mental health condition (or impairment) “must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”.

   [34]    The Determination, page 22.

2. The Tribunal is satisfied that the Applicant’s psychological condition has been fully diagnosed prior to the qualification period in accordance with Table 5 – Mental Health Function of the Determination[35]; on the basis of the diagnosis of Mr Handrick (Clinical Psychologist), being “Chronic Depression” as outlined in the addendum to the original diagnosis in the above mentioned paragraphs of this Decision. Subsequent reports from Mr Handrick submitted in evidence post-date the qualification period, and are unable to be considered as part of this Application[36].

   [35]    The Determination, page 22.

   [36]    Exhibit R1, T26, page 154.

3. In regards to whether the Applicant’s Psychological Condition (Chronic Depression) had been fully treated and fully stabilised, the Respondent has contended “… that there is no corroborating evidence that the Applicant had undertaken any pharmacological treatment for the depression condition within the qualification period. The Secretary relies on the Pharmaceutical Benefits Scheme claims history records (the PBS records) (ST2) which evidences that the Applicant had not engaged in appropriate pharmacological interventions in the management of his psychological condition”[37]. [sic]

   [37]    Exhibit R4, page 9 and 10, paragraph 5.34.

4. The Tribunal refers to the Applicant’s treating Clinical Psychologist’s letter of  7 January 2017 by Mr Olaf Handrick, where it stated, “Currently we are working on behavioural activation and pscho-education about the benefits of an AD”[38]. The Tribunal notes that “AD” as referred to by Mr Handrick in this letter would be shorthand for Anti-Depressant.

   [38]    Exhibit R1, T14, page 77.

5. Pharmaceutical Benefits Scheme records of the Applicant indicate that he had been prescribed Oxazepam, which was first filled by prescription on 22 February 2018 and again on 26 March 2018[39], several months after the qualification period ended on            28 August 2017.

   [39]    Exhibit R2, ST2, page 3.

6. The Applicant submitted consistent evidence to that previously given to the SSCSD of the Tribunal, that Oxazepam made him tired and unable to function the next day after taking it. The Tribunal notes there is no corroborating evidence that verifies the Applicant’s self-reported symptoms in relation to this claim.

7. The Respondent submitted that, “pharmacotherapy, managed under the supervision of a relevant specialist, is reasonable treatment for the Applicant’s depression condition as defined under subsection 6(7) of the Rules [the Determination]. That is, it is readily available to the Applicant at a reasonable cost, has a high success rate and can reliably be expected to result in a substantial improvement in functional capacity if undertaken. Especially in circumstances where psychotherapy was not resulting in demonstrable improvement”[40]. The Tribunal notes that this claim by the Respondent is supported by the Royal Australian and New Zealand College of Psychiatrists’ clinical practice guidelines for mood disorders[41]:

   “Treatment options for mild or moderate major depressive disorder

   In mild to moderate episodes of MDD, psychological management alone may be adequate, especially early in the course of illness. However, episodes of greater severity, and those that run a chronic course, are likely to require the addition of antidepressant medication, or some other combination of psychological and pharmacological treatment.

   …

   Combining psychological and pharmacological treatments has been shown to improve clinical outcome and significantly decrease relapse and recurrence rates (Beshai et al., 2011), which may be partially due to the effect of psychological treatments on adherence (Pampallona et al., 2004). More specifically, research trials have found that maintenance CBT in combination with antidepressant medication was superior in preventing relapse to maintenance antidepressant medication alone (Beshai et al., 2011; Paykel et al., 1999), and the observed advantage persisted several years later (Paykel et al., 2005).”

   [40]    Exhibit R4, page 11, paragraph 5.38.

   [41]    Exhibit R4, page 10 paragraphs 5.35 and 5.36; Source , page 27 and 64.

8. The Tribunal notes that the Applicant’s treating Clinical Psychologist’s letter of  7 January 2017 by Mr Olaf Handrick states that the Applicant’s psychological condition was “somewhat treatment resistant”. The Respondent has contended that this conclusion was reached without pharmacological intervention and no submitted record of treatment from a psychiatrist, and in turn should be given no weighting[42].

   [42]    Exhibit R4, page 11, paragraphs 5.40 and 5.41.

9. The Tribunal notes the Job Capacity Assessment Report of 28 November 2016. The Report was contributed to by three assessors (one assessor being a Registered Psychologist) stated, “… it is confirmed that the condition is permanent, fully diagnosed, however cannot be considered fully treated and fully stabilised at the time of the assessment and therefore an impairment rating cannot be assigned. Information suggests the condition is not optimally treated. It is anticipated that further improvement in functioning may occur and symptoms reduce within the next two years with ongoing psychological intervention, medication as well as psychiatric review”[43].

   [43]    Exhibit R1, T13, page 75.

10. A further Job Capacity Assessment Report was undertaken on 27 February 2017, where a Registered Psychologist who was a contributing assessor stated, “The condition is not considered fully treated and stabilised at this time as there is no evidence that the customer has been treated with suitable pharmacotherapy, in addition to sustained, targeted psychiatric/psychological intervention. With these interventions, in conjunction with treatment of his co-morbid conditions and a program of support, significant improvement of symptoms and functional capacity is possible within 24 months”[44].

    [44]    Exhibit R1, T15, page 80.

11. The Tribunal agrees that pharmacological intervention under the treatment of a relevant specialist would be considered “reasonable treatment” consistent with s6(7) of the Determination[45], given the chronicity of the Applicant’s diagnosed condition.

    [45]    The Determination, pages 7 and 8.

12. The Tribunal finds that the Applicant had not undertaken reasonable treatment as prescribed in the Determination for their psychological condition prior to or during the qualification period for this Application.

13. The Tribunal finds that the Applicant’s psychological condition was not fully treated and not fully stabilised during the qualification period in accordance with the Determination. Therefore, the Tribunal does not have authority to assign an impairment rating for the Applicant’s psychological condition.

    Skin condition

14. Evidence was submitted of a pending hospital visit with Mater Health Services for “E/O NASAL DORSUM B.C.C. + RE-EXCISION OF RIGHT EAR B.C.C.” which had been arranged for admission at 7am on 22 May 2017[46]. Diagnosis of the Applicant’s skin condition was contained in extracts from pathology reports dated 25 May 2017 from Dr Cameron Snell (Pathologist)[47], which state:

    [46]    Exhibit R1, T18, page107.

    [47]    Exhibit R1, T20, page 110.

    “DIAGNOSIS

    1.    SKIN ORIENTATED EXCISION, LESION DORSUM NOSE

    -     NODULOCYSTIC BASAL CELL CARCINOMA, EXCISED WITH MARGINS AS ABOVE.

    2.    SKIN ORIENTATED EXCISION, LESION LEFT LEG

    -     SQUAMOUS CELL CARCINOMA, EXCISED WITH MARGINS AS ABOVE.

    3.    SKIN ORIENTATED EXCISION, LESION RIGHT EAR

    -     SUPERFICIAL BASAL CELL CARCINOMA, EXCISED WITH MARGINS AS ABOVE”.

15. The Tribunal notes a lack of corroborating evidence in relation to the Applicant’s skin condition, prior to or during the qualification period for this Application, which indicates a prognosis; confirmation of whether the condition was permanent; whether the condition was more likely than not to exist for more than two years; or whether the condition was stabilised.

16. Section 6(3)(a) and s6(4) of the Determination[48] provides:

    [48]    The Determination, page 6.

    “Impairment ratings

    (3)An impairment rating can only be assigned to an impairment if:

    (a)  the person’s condition causing that impairment is permanent; and

    Note: For permanent see subsection 6(4).

    …

    Permanency of conditions

    (4)For the purposes of paragraph 6(3)(a) a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    Note: For fully diagnosed and fully treated see subsection 6(5).

    (c)the condition has been fully stabilised; and

    Note: For fully stabilised see subsection 6(6).

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.”

17. Based on submitted evidence prior to and during the qualification period for this Application, the Tribunal finds that the Applicant’s skin condition was diagnosed, but can not be considered permanent. Therefore, the Tribunal does not have authority to assign an impairment rating for the Applicant’s skin condition.

18. The Tribunal has found that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables during the qualification period, and therefore does not satisfy s94(1)(b) of the Act.

19. Accordingly, there is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.

    DECISION

20. The decision under review is affirmed.

    I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola

    ……………[SGD]……………..

    Associate

    Dated: 10 December 2019

    Date of hearing:  26 November 2019

    Applicant:  Mr Gregory Scharf (in person)

    Solicitor for Respondent:       Mr Jake Kyranis

    Senior Associate, Sparke Helmore Lawyers

    ‘Annexure 1 – Exhibit Register’

Exhibit

Number

Description

R1

Section 37 T-Documents received 20 February 2019
(Paged 1 – 220)

R2

Supplementary T-Documents received 11 November 2019
(Paged 1 – 22)

R3

Supplementary T-Documents received 22 November 2019
(Paged 1-55)

R4

Respondent’s Statement of Facts, Issues and Contentions dated 11 November 2019 (Paged 1 - 19)

A1

Applicant’s submissions received 31 October 2019 (Paged 1 – 3)

A2

Applicant’s submissions in reply dated 15 November 2019
(Paged 1 – 3)

A3

Document titled ‘Participation of Support’ provided by the Applicant on 1 November 2019 (1 Page)

A4

Medical documents provided by the Applicant on 17 November 2019 (Page 1 – 10)

A5

Medical documents provided by the Applicant on 24 October 2019 in relation to amending directions (Paged 1 – 6)