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

[2020] AATA 4664

Storen and Secretary, Department of Social Services (Social services second review) [2020] AATA 4664 (23 November 2020)

Division:GENERAL DIVISION

File Number:2019/8144          

Re:Peter Storen   

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson AM

Date:23 November 2020

Place:Brisbane

The decision under review is affirmed.

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

Senior Member P J Clauson AM

Catchwords

SOCIAL SECURITY – Disability Support Pension – Social Security Act 1991 – whether condition is fully diagnosed, treated and stabilised – whether impairment is entitled to 20 points or more – where condition is not fully diagnosed – where there are multiple applications – determining which is reviewable application – where there is a preclusion period preventing application – decision affirmed

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

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

Secondary Materials

Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (“The Determination”).

REASONS FOR DECISION

Senior Member P J Clauson AM

23 November 2020

INTRODUCTION

1. On 16 January 2018 the applicant, Peter Storen (“the Applicant”), lodged a claim for Disability Support Pension (“DSP”) and listed his medical condition as:

   ·Lower back injury;

   ·Neck pain – headaches;

   ·I use crutches to walk:

   ·Injury to chest area of spine.

   which affected his ability to work.[1]

   [1] Exhibit 1, T21, page 122.

2. Before ultimately rejecting the applicant’s claim, the respondent had the following substantive medical documentation before it:

   (a)a medical report by Dr Arash Khezer dated 19 November 2012;

   (b)a medical report by Dr Peter R Bradley dated 3 June 2014;

   (c)a MRI report by Dr John Richard Coucher dated 26 April 2016;

   (d)a letter from Dr Olivia Ong dated 5 September 2016;

   (e)a letter from Dr Babak Farr dated 6 February 2017;

   (f)a letter from Dr Sam Bewsher dated 15 June 2017;

   (g)a MRI report by Dr Daniel Saddik dated 30 June 2017;

   (h)a letter from Dr Howard dated 4 July 2017;

   (i)a further report from Dr Daniel Makar dated 19 July 2017;

   (j)a letter from Dr Bewsher dated 3 August 2017; and

   (k)a report by Dr Craig Timms dated 16 August 2017.

3. On 17 May 2018, the Department for Social Services (“the Agency” or “the Respondent”) conducted a medical assessment of the applicant and produced a report ultimately recommending that the applicant’s claim for DSP be refused.[2]

   [2] Exhibit 1, T24, page 135.

4. By way of historical note, Mr Storen had been in receipt of the DSP since the 17 May 2014 until it was cancelled on the 5 February 2016 on the basis that a compensation preclusion period had been imposed.[3] The Applicant sought a review of his preclusion period and had on the 16 January 2018 applied for the DSP prior to the preclusion period concluding.

   [3] Exhibit1, T34, page 191.

5. The Administrative Appeals Tribunal on the 6 March 2018 decided to vary the end date of Mr Storen’s preclusion period to the 6 March 2018. The Applicant had applied again for DSP on the 23 March 2018 and Centrelink reassessed his eligibility for the DSP as claimed on the 23 March 2018.[4]

   [4] Exhibit 1, T33, page 163.

6. Centrelink again rejected The Applicant’s claim on the 18 May 2018 on the basis that he did not have a total impairment rating of 20 points or more.[5] 

   [5] Exhibit 1, T25, page 137.

7. The applicant’s claim for DSP was rejected on 18 May 2018.[6]

   [6] Ibid.

8. The applicant sought a further review of this determination. An Authorised Review Officer (“ARO”), on 18 June 2019, affirmed a decision to reject the applicant’s claim for DSP.[7] The ARO found:

   (a)that at the time of the applicant’s DSP application he was subject to a compensation preclusion period as he was still in receipt of a lump sum compensation payment and therefore was not eligible until this period ended (6 March 2018); and

   (b)that in any event, the applicant’s conditions were not fully diagnosed, treated and stabilised and therefore could not attract a rating of twenty or more points under the relevant impairment tables.

   [7] Exhibit 1, T26, page 139.

9. The applicant sought a further review of this decision by the Social Services and Child Support Division of this Tribunal (“AAT1”) on 4 October 2019.[8]

   [8] Exhibit 1, T2, pages 2-7.

10. A hearing was conducted by the AAT1 on 29 November 2019 to review the Agency’s decision to reject the applicant’s DSP claim. During this hearing, the AAT1 identified a spinal injury and depression on the medical evidence. Member Foster proceeded to discuss these conditions at the hearing with the applicant providing further evidence.

11. The AAT1, on 29 November 2019, found in rejecting the applicant’s claim for DSP that:

    (a)that due to the availability of surgical intervention with respect to his spinal injury, the applicant had not benefited from all reasonable treatment and therefore, his back injury was not fully treated or stabilised; and

    (b)that due to a lack of psychiatric evidence at the date of claim, the applicant’s depression was not fully diagnosed, treated and stabilised.

    LEGISLATIVE FRAMEWORK

12. Section 94 of the Social Security Act1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; that the applicant’s impairment is of 20 points or more under the Impairment Tables; and that the applicant has a continuing inability to work.

13. The Social Security (Administration) Act1999 (Cth) (“The Administration Act”) makes it clear that qualification for DSP and assessment of the relevant Impairment Ratings are to be determined as at the date of claim, in this case 23 March 2018. There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging a claim, in which case the start date for DSP is the date the person becomes qualified.[9] Therefore, the Relevant Period for considering whether the applicant qualified for DSP is between 23 March 2018 and 13 weeks thereafter, namely 23 June 2018 (“the Relevant Period”).

    [9] See sections 41 and 42 and clause 3 and clause 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act1999 (Cth).

14. It is well-established (and, indeed, mandatory in a legislative sense) that the applicant’s condition, and thus assessment of attributable impairment points, must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at para. [34]:

    “The Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal 12 or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances”. (Tribunal’s underlining)

15. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination2011 (“the Determination”), a legislative instrument made under the Act.[10] The Tables are function-based rather than diagnostic-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[11] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[12]

    [10] See section 26(1) of the Act.

    [11] section 5(2) of the Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (“The Determination”).

    [12] See section 6(1) of the Determination.

16. Under the rules for applying the Impairment Tables, an Impairment Rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[13] In order for a condition to be considered “permanent”, it must have been fully diagnosed by an appropriate qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[14]

    [13] See section 6(3) of the Determination.

    [14] See section 6(4) of the Determination.

17. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.[15]

    [15] See section 6(5) of the Determination.

18. A condition is “fully stabilised” if:

    (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 two years; or

    (b)the person has not undertaken reasonable treatment for the condition because:

    (i)significant functional improvement to a level enabling the person to undertake work in the next two 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]

    [16] See section 6(6) of the Determination.

19. “Reasonable treatment” is treatment that:

    (a)is available at a location reasonably accessible to the person;

    (b)is at a reasonable cost;

    (c)can reliably be expected to result in a substantial improvement in functional capacity;

    (d)is regularly undertaken or performed;

    (e)has a high success rate; and

    (f)carries a low risk to the person.[17]

    [17] See section 6(7) of the Determination.

20. An Impairment Rating can only be assigned in accordance with the Rating Points in each Table. A rating cannot be assigned between two consecutive Impairment Ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied. A rating cannot be assigned in excess of the maximum rating specified in each Table.[18]

    [18] See section 11(1) of the Determination.

21. In respect of the requirement that the applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

    ISSUES FOR THE TRIBUNAL

22. The issues for me to consider are:

    (a)whether, during the Relevant Period namely, from 23 March 2018 when the applicant lodged his claim for DSP or within 13 weeks thereafter to 23 June 2018, the applicant was qualified to receive DSP;

    (b)the applicant was entitled to receive the DSP depending upon whether he satisfied section 94 of the Act insofar as, in particular, whether the applicant has:

    (i)a physical, intellectual or psychiatric impairment or impairments that are fully diagnosed, fully treated and fully stabilised;

    (ii)the impairments flowing from the applicant’s condition or conditions warrant an Impairment Rating of 20 points or more under the Impairment Tables, and if so;

    (c)whether the applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the applicant completed a program of support; and

    (d)whether the applicant has a continuing inability to work (CITW).

    CONSIDERATION

23. The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy section 94(1)(b) or (c) of the Act.[19]

    [19] See Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, [5].

24. I accept that the Applicant had an impairment(s) for the purpose of section 94(1)(a) of the Act. I propose to deal with the calculation of impairment points by reference to each of the Applicant’s various medical conditions.

25. The Tribunal in this matter before considering the Applicant’s conditions for their eligibility for impairment ratings must first establish what is the appropriate qualifying period in which they are to be considered. The Applicant, it is noted, first applied for DSP on the 16 January 2018 this date was still within a preclusion period which related to a compensation claim he had received. He had sought a review of that period by the AAT. The AAT on the 6 March 2018 varied the end date of the preclusion period to the 6 March 2018.

26. The Tribunal then reviewed The Applicant’s eligibility for DSP on the basis that he had made a claim for DSP on the 23 March 2018 which relied upon the supporting material lodged with the application on the 16 January 2018. The result of that review was that he was once again rejected for DSP.

    For the purpose of this review, the Tribunal considers that the appropriate qualifying period for The Applicant’s claim is from 23 March 2018 until thirteen weeks thereafter.

    Condition 1 Spinal Condition – Table 4

27. The Applicant’s spinal injury was incurred as a result of a work injury in 2013[20] and then subsequently worsened by his involvement in a number of motor vehicle accidents.[21]

    [20] Exhibit 1, T8, page 70.

    [21] Exhibit 1, T14, page 100.

28. In his report to Centrelink dated 3 June 2014[22] Dr Bradley Mr Storen’s GP noted that the Applicant was diagnosed on the 24 July 2013 with “Severe lumbar disc degeneration with marked radiation and sciatica”. In his report dated the 9th April 2014,[23] Dr Michael Bryant Orthopaedic Surgeon made the following observations regarding The Applicant’s situation at that time: “I think we are running out of options for Peter. I think as a last-ditch effort he needs to try a course of physiotherapy/hydrotherapy to try to settle things down. If these things do not fix the problem, then he is looking at a discectomy and fusion to try and get the pains back under control. Ultimately for Peter the pain in his back has been going on for far too long and we are now in the situation where a good surgical outcome may see a 60% to 70% improvement in the pains only.”   

    [22] Exhibit 1, T9, page 76-86 at page 79.

    [23] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, attachment A, page 25.

29. The Applicant had tried various forms of treatment other than surgery since his condition had been diagnosed. He had consulted a Pain Physician, Dr Andrew Huang who together with Pain Fellow Dr Olivia Ong prepared a report dated 5 September 2016 relating to The Applicant’s condition.[24] The report noted inter alia, his lumbar spine condition, his reluctance to engage in a self - management approach to his pain, that he was using high dosage opioids for the spinal condition and that he used a wheelchair and crutches to assist in his mobility. The report also noted that he had undergone extensive non- invasive therapies in Queensland (physiotherapy, hydrotherapy, Pilates and Yoga but that he was still limited by pain.

    [24] Exhibit 1, T12, pages 96-97.

30. The Respondent noted in their submissions that Dr Huang reported that The Applicant was to receive a guided corticosteroid injection into the Left L4/L5 on 5 September 2016 at Austin Health.[25] It was further noted that he suffered from poor sleep continuity as a result of having to reposition himself because of the pain, that the stress and emotional distress increase his pain effects. He was noted as being self-sufficient with personal daily activities but took longer to accomplish chores as a result of pain and fatigue. He reheated frozen meals for all his meals and sometimes his mother would prepare meals for him and deliver them. He also noted that a friend assisted him with some household chores.

    [25] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [36].

31. In his report of the 15 June 2017[26], Dr Sam Bewsher the Orthopaedic Registrar at the Austin Health Centre noted that The Applicant had undergone the bilateral L5 exiting neural foramen injection and that it had been successful insofar as The Applicant could now “stand unabated”. Dr Bewsher also noted that The Applicant had been offered an L4-L5 decompression and interbody fusion. Dr Bewsher also noted that The Applicant was: “quite fixated on extending the fusion down to S1 given that he had discussed this in Queensland. However, I have tried to explain that based on the imaging that we have to date and his symptomology, this would not provide him with benefit.”

    [26] Exhibit 1, T14, page 100.

32. Dr Bewsher concluded his report by noting that The Applicant had been placed on a surgical waiting list at Austin Health.

33. The action of being placed on the Victorian Health surgery waiting list clearly illustrated the belief that the specialist medicos held that surgery was the main option for The Applicant if he was to have his symptoms alleviated to any extent whereby he may be more comfortable. This action was reflective of the view and advice of Dr Bryant in his report[27] wherein he states: “ If he managed to get the surgery Dr Bryant recommended, confirmed by Dr Laherty after reappraisal because of failure to respond, he might improve, otherwise he remains disabled and his return to meaningful employment is unlikely.”

    [27] Exhibit 1, T9, age 81.

34. The Applicant was reviewed by Dr Craig Timms a consultant neurosurgeon in Victoria on the 16 August 2017[28] reported that the applicant was on the waiting list at the Austin Health Centre for a lumbar spine fusion at L4-L5 and that Dr Timms was hopeful that the procedure would result in the applicant receiving a beneficial result for his back and legs and would be walking better and have “a positive effect on the rest of his spine, permitting a better posture and help him to be up and about and off crutches which I think will significantly and dramatically help his thoracic and cervical spine.” 

    [28] Exhibit 1, T18, page 107.

35. The Tribunal notes that The Applicant advised in his application for DSP[29] dated the 16 January 2018 that: “he was on a waiting list for lower back surgery. Hopefully get the help I need.” This comment in the Applicant’s application indicates in the view of the Tribunal that at that point in time he clearly was committed to the surgical procedure as a means to relieving his condition.

    [29] Exhibit 1, T21, page122.

1. The  AAT1 hearing noted that Dr Bradley, the Applicant’s GP in a medical certificate dated the 22 June 2018 stated that The Applicant was hoping to obtain remedial surgery but had recently returned to Brisbane after two years in Victoria.[30]Further, an Employment Services Assessment Report dated the 21 October 2018[31] noted: “Client reported he was awaiting a spinal fusion whilst living in Victoria, which became available after he moved back to QLD. He is now on QLD public system waiting list, he reports he has a (sic) MRI scheduled tomorrow, with specialist review to follow.” This date, it is noted, is well outside the Qualification Period which commenced on 23 March 2018 and concluding thirteen weeks thereafter on the 23 June 2018, clearly indicating to the Tribunal that the Applicant had not undergone the recommended surgery by this time.

   [30] Exhibit 1, T2, page 6.

   [31] Exhibit 1, T29, page 149.

2. The Applicant was referred to a neurosurgeon Dr Ian Cheung who saw the Applicant, it would appear, at the Logan Hospital and who recommended that the Applicant undergo spinal fusion at the Mater Hospital where a vascular surgeon was also available.[32] The Applicant underwent the surgery in Brisbane on the 22 August 2019 and this is confirmed by the medical report of Dr Ian Cheung noting the L4-S1 fusion taking place and the requirement for  post-operative therapy of even date.[33]

   [32] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, attachment A.

   [33] Exhibit 1, T32, page 157.

3. The evidence set out above in this decision is relevant to the consideration as to whether The Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised at the time of his claim. The Tribunal accepts that The Applicant’s condition was fully diagnosed at the relevant period and so, must also consider whether, at that time, it was fully treated – a term that is informed by subsection 6(5) of the Impairment Determination requiring the Decision Maker to consider what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years. The Applicant’s situation requires the Tribunal to consider what treatment was planned or continuing as at 23 March 2018 and within the thirteen weeks thereafter. The Tribunal is not to consider what treatment may be planned or continuing at some time in the future, for example at the date of this review.

4. The Applicant, at the hearing before this Tribunal, seemed to want agitate the point that he was qualified for the DSP at the relevant period because he had been told by certain unspecified doctors at the time he was on the DSP following the WorkCover refusal to pay for his surgery that he should not have the surgery. However, his evidence in this regard was somewhat confusingly ambivalent as he claimed he had some doctors telling him not to have surgery, some saying: “Well it could help, may not fix your left leg, because of nerve damage.”[34]  The Applicant then went on to indicate why he chose to undergo surgery in Queensland as he didn’t consider that he had sufficient faith in the proposed procedure in Victoria. His rationale being that had he undergone that procedure with Dr Bewsher he would have had to return for more surgery at a later time.

   [34] Transcript of Proceedings page 13.

5. The Applicant also in response to a question from Ms Smith for the Respondent asking if he had any opinions from a specialist which advised against the surgery replied: “Look, I’ve got all the documents to go through at the moment, but I could probably find it over time.”[35] The Applicant referred to a report from a Dr Peter O’Brien which the Tribunal did not have access to for this hearing but which the Applicant insisted he had sent to Centrelink and told Centrelink to upload it to the file for this hearing. The Applicant stated that it was a report relating to advice from Dr O’Brien that recommended against having the spinal surgery sometime in he thought, 2016. The Applicant’s evidence to the Tribunal was that the report from the Dr O’Brien he was referring to as not recommending surgery was related to a later application for DSP post his surgery which had also been rejected. This Tribunal had no information before it to either confirm or contradict The Applicant’s assertions in this regard. In any event this Tribunal is confined in its deliberations to the Qualification Period applying to the decision under review. In the interests of fairness the Tribunal adjourned from 11.12 am to 11.52 am to give time to the Respondent to make enquiries on The Applicant’s behalf to establish if possible that the Dr O’Brien document was in their possession. This was to no avail. Further, at the conclusion of the hearing the Tribunal made a Direction allowing The Applicant until 26 August 2020 to place before the Tribunal and provide to the Respondent any submissions that he wished to rely upon together with any medical evidence in support of his contentions. The Tribunal also granted the Respondent until 9 September 2020, to file with the Tribunal and serve upon the Applicant any response to the Applicant’s further submissions. It is noted that the Applicant did not file any material with the Tribunal pursuant to the Direction.

   [35] Transcript of Proceedings, page 14, lines 44-46.

6. Notwithstanding any of the discussions around whether The Applicant should or should not have undergone surgery, the fact of the matter for this review is that there was significant predominance of opinion that in his case surgery, albeit with all the attendant risks and uncertainties was considered to be the best option. The Applicant clearly thought that this would be the best of his options as witnessed by the fact that he placed himself on the Victorian waiting list and upon re-locating to Queensland placed himself upon the Queensland waiting list and in fact, underwent the recommended surgical procedure at the Mater Hospital albeit some nineteen months past his application date for DSP.

7. The Applicant expressed the view that the results of his surgery had not been to his expectations and expressed the view that he thought he was better before the surgery. He also stated that surgery was his last option and of course, that is the case here. In order to be declared fully treated and stabilised the medical opinions were that the surgery would be the next step along the path. The surgery was conducted post the Qualification Period and thus it could not be said that at that time his spinal condition was fully treated and fully stabilised. Further, the Tribunal notes that, in relation to the assertion made at the hearing by The Applicant that he thought he was better before he underwent the procedure, his application for review states: ”At the time I applied for this disability pension my overall physical and mental condition was far worse than it is at this point in time.”  This seems at odds with his assertions to both this Tribunal and the AAT1 that the surgery had not provided any improvement in his condition. This statement is in fact in some alignment with the pre-operative views of his medicos such as Dr Bryant in his report[36] and of Dr Timms in his report[37]that surgery would bring some hopeful improvement in his general condition. They were certainly not pre-empting a miracle cure but were however, hopeful of engendering some improvement in the Applicant’s condition.

   [36] See Exhibit 1, T9.

   [37] Exhibit 1, T18, page 107.

8. Given the medical evidence available to the Tribunal for the purposes of this review the Tribunal decides that at the date of the Qualification Period namely, 23 March 2018 his spinal condition could not be classified as fully treated and fully stabilised. Accordingly, the Tribunal is unable to assign any impairment rating to his spinal condition as at that time.

   Depression Condition – Table 5

9. Table 5 of the Impairment Tables can be invoked when the person making a claim for DSP is suffering from a permanent condition resulting in a functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

10. Table 5 requires the diagnosis to 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).

11. The Tribunal in this matter has no evidence before it of a depression condition affecting the Applicant being diagnosed by a either a psychiatrist or a qualified medical practitioner with evidence form a clinical psychologist. The condition cannot therefore be found to be fully diagnosed. The Tribunal is therefore unable to assign any impairment rating to this condition.

12. The Applicant does not have a total of 20 or more impairment points under the Tables, he does not satisfy the requirement under section 94(1)(b) of the Act (the second of the requirements for DSP). He therefore does not qualify for DSP via this application.

    CONTINUING INABILITY TO WORK

13. Given that this Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for me to consider whether he satisfies the remaining criteria for DSP.

    CONCLUSION

14. The applicant does not qualify for DSP because his conditions are unable to be assigned any impairment points during the Relevant Period.

    DECISION

15. Accordingly, the decision under review is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

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

Associate

Dated: 23 November 2020

Date(s) of hearing:	05 August 2020
Date final submissions received:	28 May 2020
Applicant:	In person
Solicitors for the Respondent:	Ms D Smith, Services Australia