Taylor; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and
[2008] AATA 624
•17 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 624
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0874
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant
And
MIKKI TAYLOR
Respondent
DECISION
Tribunal Senior Member L Hastwell Date17 July 2008
PlaceAdelaide
Decision The Tribunal sets aside the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – spinal Injury – impairment – was condition treated, diagnosed and stabilised – claim period of 13 weeks – time at which impairment to be considered – treatment ongoing with prospect of improvement during claim period – condition not stabilised – decision set aside
Social Security Act 1991 s 94
Social Security (Administration) Act1999 s 4
Re Tiknaz and Director General of Social Services [1981] AATA 170
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
REASONS FOR DECISION
17 July 2008 Senior Member L Hastwell 1. The applicant (the Department) seeks review of a decision of the Social Security Appeals Tribunal (the SSAT) of 14 February 2007 which set aside a decision of an Authorised Review Officer and found that Mikki Taylor (the respondent) satisfied the legislative provisions required to establish eligibility for Disability Support Pension (DSP).
2. The matter was remitted back to the Department with the direction that the respondent satisfied the criteria for DSP and should be re-assessed on the basis that she had satisfied the legislative provisions and had done so since the date of her claim on 16 May 2006.
legislation
3. Section 94 of the Social Security Act 1991 (the Act) as it was at the time that the applicant made her claim, sets out the qualifications for DSP in the following terms:
“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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)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) 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.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support that:
(i)is designed to assist the person to prepare for, find or maintain work; and
(ii)is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or
(b)is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
(4A)The Secretary must comply with the guidelines (if any) determined and in force under subsection (4B) in deciding the following:
(a) whether paragraph (1)(b) applies to a person;
(b)whether the Secretary is satisfied as mentioned in subsection (2) or (4).
(4B)The Minister may, by legislative instrument, determine guidelines to be complied with by the Secretary in making a decision referred to in subsection (4A).
(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
work means work:
(a)that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
…”
4. The Impairment Tables are set out in Schedule 1B of the Act. These tables assign a point system to various impairments. The relevant table in this case is Table 5.2 which deals with allocating points for impairment of the spine and the relevant portion is as follows:
“TWENTYLoss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three-quarters of normal range of movement.”
5. The preamble to the Impairment Tables outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition and these are:
·The condition must be fully documented, diagnosed, investigated, treated and stabilised.
·The condition must be considered permanent.
·Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if, in the light of available evidence, it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years.
·A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
6. The Social Security (Administration) Act 1999 (the Administration Act) provides the rules for working out the start day of an entitlement to a Social Security benefits.
7. Section 4 provides as follows:
“4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
(2) For the purposes of subclause (1), the following provisions have effect:
(a)subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;”
background
8. The respondent suffers from a number of physical conditions and it was common ground in this case that she satisfies the requirements of s 94(1)(a) of the Act. She suffers from the conditions of:
·coeliac disease
·bursitis of the hip; and
·lumbar disc protrusion.
9. It is common ground that the condition of coeliac disease is diagnosed, treated and stabilised and attracts a zero impairment rating. The condition of bursitis is not a permanent condition.
10. The condition that was focused on at the hearing before this Tribunal as being the condition that the SSAT found satisfied the requirements of the Act and was a permanent condition that entitled the respondent to a DSP was that of lumbar disc protrusion.
11. There has been subsequent amendment to the legislation and in particular the “work test” contained in s 94(5) of the Act has been altered to 15 hours a week. Because of the date that the respondent lodged the claim she is entitled to the benefit of the 30 hour work test that was in place at the time she lodged her claim.
issues
12. The issue to be determined in this case is whether the respondent satisfies the requirements of ss 94(1)(b) and (c) of the Act .
13. This involves a consideration of the following matters:
·Does her condition of lumbar disc protrusion attract an impairment rating of at least 20 points under the Impairment Tables?
·Does she have a continuing inability to work because of her impairment?
·Is her physical condition fully documented, diagnosed, investigated, treated and stabilised and considered permanent, ie will it persist for the foreseeable future and be taken as lasting for more than two years?
·Whether the impairment of itself prevents her from doing any work within the next two years, whether skilled or unskilled, which she could otherwise have performed except for the impairment.
the hearing
14. The respondent gave evidence. Dr Kosmas, her general practitioner, gave evidence on her behalf, as did Mr Tim Upsdell, a registered psychologist. The applicant called Donna Robertson, a rehabilitation counsellor and Dr Von Wielligh to give oral evidence to the Tribunal. The documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 were received into evidence, together with a number of other exhibits which will be referred to where relevant.
15. The respondent sustained an injury in a dancing accident in August 2005. She began to experience some loss of mobility in her spine and pain thereafter and she describes that as gradually worsening over the ensuing months.
16. She sought advice from her general practitioner and on 9 December 2005 an x-ray was carried out on her lumbar spine, pelvis and left hip (T23/113). This showed some lumbar spine degeneration and a subsequent CT scan of her lumbar spine, which was carried out on 24 January 2006, provided more detail of her spinal problems and, in particular, it indicated a diffuse disc bulge at level L4/5 (T22/112).
17. She lodged her claim for DSP on 16 May 2006. Her general practitioner at the time, Dr Von Wielligh, provided a Treating Doctor’s Report (T19) in which her condition is diagnosed as being “back pain – disc bulge and small posterior herniation” in accordance with the CT scan report of 24 January 2006. The pain was described as radiating down her legs to both feet such that she could not sit for long periods of time and could no longer dance. In that report the doctor expressed the view that the condition was expected to last for up to 24 months and that the condition may “somewhat improve” during that same period. Physiotherapy was recommended as well as the use of Glucosamine and herbal back pain relief. There was a reference to treatment having started on 11 May 2006.
18. Shortly after lodging the claim for DSP and during the 13 week claim period, the applicant sustained a further fall on 3 June 2006. This second incident appeared to increase the irritability and severity of her condition and her pain.
19. The respondent was examined at the direction of the applicant by Dr Williams from Health Services Australia on 21 June 2006. The report is at T18 and a summary of that examination is at page 50A of the T documents. The doctor described the condition as being lumbar disc protrusion with a loss of half range of movement and pain. It is reported that the respondent told the doctor that she had been having physiotherapy with some improvement in her back condition. However, the incident in June 2006, which was only a matter of weeks earlier, had re-injured her lower spine with an increase in pain and dysfunction. The doctor took the view that treatment was ongoing and considered that there was the prospect of a significant improvement and said that she should be reviewed in six months.
20. A further x-ray of her lumber spine was carried out on 23 June 2006 (T14) which did not detect any bony injury and added little to the report of January 2006.
21. A further CT scan of the lumbar spine was conducted on 19 August 2006 (T16). This referred to:
“Significant focal disc protrusion is noted centrally perhaps slightly towards the left at L4/5. This appears to have progressed since the previous scan. There are significant degenerative changes at L5/S1.”
22. The respondent presented for regular physiotherapy to the Royal Adelaide Hospital during this period. A discharge letter from the Royal Adelaide Hospital to Dr Von Wielligh dated 3 October 2006 (Exhibit A6), confirmed that she had presented with severe and chronic low back pain on 11 May 2006 that radiated from her hip down her buttocks. On examination, she was found to have a limited active range of movement and she had physiotherapy and hydrotherapy for a period of time.
23. A further Treating Doctor’s Report was provided to the Department on 22 August 2006 (T13). In that report Dr Von Wielligh suggested that the future prognosis was uncertain as the respondent’s condition may improve with surgery. The current treatments at that time were pain relief, physiotherapy and use of fish oil.
24. The respondent then began to experience problems of urinary retention. She was seen by the Neurosurgery Outpatient Service at the Royal Adelaide Hospital and in particular by a staff specialist, Dr Marguerite Harding in April/May 2007. Further scans were done and a MRI scan showed L4/5 bilateral recess narrowing with an annular tear at that level and a L5/S1 paracentral disc bulge abutting the S1 nerve root on the right.
25. In February 2007 the respondent commenced consulting with Dr Jim Kosmas at the Trinity Medical Centre. His report of 9 November 2007 (Exhibit R1) confirms the dates that she attended that clinic from 15 May 2006 onwards and the result of the 2007 MRI scan. His opinion was that her spinal condition was permanent with a degenerative component which, in his opinion, would continue to deteriorate with time. He expressed the opinion that the impairment would continue to cause difficulties and prevent her from undertaking educational or vocational training within the next two years.
26. Dr Kosmas referred the respondent to another neurologist, Dr Robinson. who provided a report dated 24 July 2007 (Exhibit A2) and a further statement dated 3 April 2008 (Exhibit A3). He saw the respondent in July 2007 and was provided at that time with various medical reports as set out in Exhibit A2. In essence, he confirmed that the MRI and CT scans showed degenerative changes in her spine, but in particular he was looking at whether she may be suffering from a syndrome known as spinal cord or cauda equina syndrome. He considered that there was some pain associated behaviour with her presentation and that there were inconsistencies in her reports of her problems. He confirmed she has chronic lower lumbar back pain and expressed the view that physiotherapy, back exercises, weight loss and pain relief would possibly lead to significant functional improvements before May 2008.
27. A further letter from the Department of Neurosurgery at the Flinders Medical Centre dated 1 February 2008 confirms that the consultant neurosurgeon, Dr McDonald, was of the view that she had degenerative L5/S1 disc problems, no surgical intervention was required and that her pain would be better managed by the Pain Management Unit at the Flinders Medical Centre.
28. Dr Von Wielligh, the former general practitioner of the respondent, gave evidence by telephone to the hearing. She confirmed that she had seen the respondent on 19 occasions between January 2006 and January 2007. She confirmed the contents of her reports that have already been referred to. In her oral evidence to the Tribunal she expressed the view that surgery would not provide any functional improvement, given the history to this point in time.
29. The respondent’s evidence is that she has had significant back pain since the dancing injury in August 2005. She lives on her own and has a carer who takes her to appointments as she no longer drives, and assists her with shopping, lifting, etc.
30. She complained of numerous physical problems associated with her back, including:
·arm and leg weakness;
·walking distances up hill or down hill;
·managing steps;
·chronic constant back ache;
·swollen feet and ankles;
·itching and tingling in her feet;
·weight gain because of medication that she has taken for the pain;
·side effects from pain medication, including extreme fatigue, shaking and sweating;
·sharp pain shooting down her spine through her coccyx and sharp pains on either side of her spine and aching in her hips;
·shooting pains in her legs when walking
·inability to do household tasks on occasions; and
·inability to lift, hang clothes on the line or put in light bulbs.
31. Dr Kosmas was called on behalf of the respondent to give evidence. He considered that her main physical conditions are severe degenerative changes of her knees and lumbar spine. He expressed the view that the latest MRI scan indicated that she had severe multi-level degeneration in both her cervical and lumbar spine. He said that surgical intervention is not appropriate because there is more than one level of disease and a conservative approach would be better. He said that her pain is not controlled such that she would work for any period of time.
32. There have been three Job Capacity Assessment Reports carried out in this case. Dr Williams, on 22 June 2006 (T18), assessed the current work capacity of the respondent at 0-7 hours per week and her future work capacity at 30+ hours per week. He confirmed that at the time there was a loss of half of range of movement under Table 5.2 of the Impairment Tables, but he considered the respondent’s condition to be temporary and an exacerbation of an existing condition.
33. A second assessment was carried out by Ms Robertson who also gave oral evidence to the Tribunal. Her first assessment was on 9 October 2006 (T24) when she assessed the respondent’s current work capacity at 0-7 hours per week and future work capacity at 15-22 hours per week. She considered that the respondent’s back condition was likely to improve in 3 to 24 months. The comment was based on the Treating Doctor’s Report. Ms Robertson was unable to contact the doctor at the time to ascertain whether the indication for improvement was dependant on surgery or not.
34. A third Job Capacity Assessment was carried out on 8 August 2007 (Exhibit A4) and again there was a zero impairment rating given for the spinal disorder on the basis of it not being fully diagnosed, treated and stabilised. At that stage the condition was considered permanent, but it had not been fully treated.
contentions
35. The Department contends that the respondent did not qualify for DSP as her injury was not fully diagnosed, treated and stabilised within the meaning of the Impairment Tables.
36. The Department points to the introduction to the Impairment Tables which specifically require that for an impairment rating to be allocated, a condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised” and “if in the light of available evidence it is more likely than not that it will persist for the foreseeable future”.
37. The respondent contends that the condition was fully diagnosed, treated and stabilised within the relevant period and she is entitled to DSP.
discussion of the evidence
38. The respondent’s evidence was straightforward. Her life has been significantly affected by her back injury with her symptoms worsening over time. She is clearly distressed at the failure of the medical system to find any real solution to her physical problems.
39. There is nothing particularly contentious in the relevant medical evidence. Scans point to spinal problems that were probably made symptomatic or triggered by the fall in August 2005 and then worsened by a further incident in June 2006. Degenerative spinal changes also exist and her back condition is not amenable to surgery. Significant medical investigations of her condition have taken place.
findings of fact
40. The Tribunal makes the following findings that are relevant to the issues to be determined in this case.
41. The respondent was an active person and suffered nothing other than minor back problems prior to a fall in August 2005 which triggered symptoms of pain, and limitation of movement in her back.
42. The respondent’s condition worsened in the months following the fall such that medical investigations were commenced in December 2005 and a plain x-ray showed some spinal degeneration.
43. In January 2006 a CT scan provided a more detailed picture of her spine and pointed in particular to a diffuse disc bulge at L4/5.
44. The respondent was referred for physiotherapy to the Royal Adelaide Hospital and she commenced active physiotherapy treatment for her back problem on 11 May 2006. She continued in that treatment until October 2006.
45. In early June 2006 the respondent suffered a further fall which appeared to set her recovery back and exacerbate her symptoms. She had been experiencing some relief from her symptoms of back pain as a result of the physiotherapy treatment when she sustained the further fall.
46. A further x-ray of 23 June 2006 added nothing to the organic picture already obtained from earlier scans, save that it confirmed that no bony injury was detected.
47. The respondent’s back symptoms worsened and so a CT scan was carried out on 19 August 2006 which noted a progression of the significant disc protrusion since the scan of January 2006.
48. In August 2006 the respondent’s GP was uncertain as to the prognosis as she considered the possibility of surgery was yet to be investigated.
49. Because of continuing and worsening symptoms, the respondent was referred for neurological evaluation in 2007 and ultimately by 2008 she was advised by the Department of Neurology at Flinders Medical Centre that surgery would not assist. She was then referred to the Pain Management Clinic at the Flinders Medical Centre for further management.
consideration and application of the law
50. To be eligible for consideration for DSP, the respondent must satisfy the threshold test of having a condition that attracts an impairment rating of 20 points or more under the Impairment Tables.
51. It is also the Tribunal’s view that she must have satisfied the criteria set out in s 94 of the Act on the date of application, or within 13 weeks of that date, and not at some subsequent date.
52. The respondent was focused intensely on her current condition and on her condition in 2007 and 2008 rather than on the window of time immediately following her claim. The SSAT also appeared to focus on her current condition and on the report of her current GP who did not first see the applicant until well after the claim period.
53. For the respondent to have an entitlement to DSP based on her claim of 16 May 2006, the decision-maker must be satisfied that at some stage between 16 May 2006 and 15 August 2006, being the period of 13 weeks from the date of her claim (the claim period), her spinal condition was fully diagnosed, treated and stabilised such that it could attract an rating under the Impairment Tables. If, subsequent to 15 August 2006, the condition was fully diagnosed, treated and stabilised, then a fresh application for DSP would need to be made by her and she could not rely on her earlier application.
54. Section 4(1) of Schedule 2 to the Administration Act allows a person who does not qualify for DSP as at the date of application to do so within a further 13 weeks.
55. It is conceded by the Department that the respondent satisfies s 94(1)(a) of the Act at the time of her application and within the claim period she had a physical impairment. However, the Department contends that the impairment did not satisfy the requirement of permanency as defined in the preamble to the Impairment Tables.
56. The SSAT did not discuss the claim period. They made a finding of qualification from the date of claim, but it appears to be based on a discussion of the respondent’s state of health at the time that she appeared before the SSAT. They make no factual findings that support their decision that she had qualified during the claim period.
57. There have been a number of previous cases in which a Tribunal has had to consider its power to grant a benefit to a person who was not entitled at the date of application, but was entitled at the date of review. In earlier cases, and prior to amendments to Social Security legislation, there was authority that the decision-maker could consider entitlement up to the date of the review (Re Tiknaz and Director General of Social Services [1981] AATA 170. Nevertheless, the inclusion of the rules for working out a start day for a benefit, as contained in Schedule 2 of the Administration Act, have now been interpreted by the Federal Court as limiting the period within which the claim, as lodged, is effectively active.
58. In Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404, Gyles J in the Federal Court confirmed the strict window of time that the decision-maker is looking at in such cases:
“… It is to be noted at the outset that, by virtue of s 42 and Schedule 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim, … and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time. …”
59. As one commentator has noted:
“In practical terms, a person who has been refused a pension, … should make a fresh claim if their circumstances change so as to make the original decision no longer correct - even if they already have an appeal against the original decision on foot.
It is of course difficult for a person (or their adviser) to know whether and when such a re qualification has occurred. Accordingly, it is suggested that, where the situation is fluid or ambiguous (as may be the case with medical issues …), a fresh claim should be lodged every 13 weeks between the date of the original decision and the date of the AAT hearing, with fresh appeals to the SSAT and the AAT being lodged in relation to each rejection. …” [Sutherland p 829]
60. The Tribunal therefore confines its consideration to the period between 16 May 2006 and 15 August 2006.
61. The introduction to the Impairment Tables are precise as to when a rating can be assigned to a condition and states as follows:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:
evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment.”
62. It is the Tribunal’s view that in this case the respondent’s condition was not fully diagnosed, treated and stabilised during the claim period such that it could attract a rating under the Impairment Tables.
63. The respondent commenced a course of physiotherapy treatment for her back condition only a matter of days prior to lodging her claim and the treatment was ongoing throughout the claim period and until October 2006. It was reasonable and logical for doctors, including the respondent’s own treating doctor, to express uncertainty about the future prognosis at that point in time. The Tribunal accepts the opinions of Dr Williams and Dr Von Wielligh of June and August 2006 which believed that future impairment was a real possibility.
64. The respondent advised Dr Williams on 21 June 2006 (and within the claim period) that she had been experiencing some relief and improvement in symptoms, but that the fall in early June had set her back once more. This is consistent with a finding that there was still some real prospect of improvement in her condition and at that point treatment had only just begun.
65. It appears that the exacerbation off her symptoms was such that further investigation took place in June and August 2006, and it was only in late August, on a date after the claim period had ended, that a CT scan showed further degeneration since the scan of January 2006. Even at that point, treatment was ongoing and there was a realistic prospect of improvement.
66. Physiotherapy treatment continued, and by late 2006 the respondent was looking at surgical options and was referred to a neurologist. Investigations were continuing and at that point in time the possibility of surgery had not been excluded.
67. The Tribunal is satisfied that during the claim period the respondent’s impairment had not been fully diagnosed and although it was being treated, treatment was ongoing, investigations were not complete, the future was uncertain and within the meaning of the Impairment Tables that condition had not stabilised. There was every possibility that physiotherapy could provide assistance and improvement and the prospect of surgery was still being considered.
68. By mid 2007, after physiotherapy and other treatments had not assisted and after a further MRI scan showed multi-level degeneration, it was reasonable to consider that the condition had become permanent within the meaning of the Impairment Tables at that point in time.
69. In the circumstances the respondent cannot satisfy the requirement of having an impairment that attracts a rating of 20 points or more under the Impairment Tables during the claim period. The Tribunal need not go on to consider the work test during the claim period as the respondent did not pass the threshold test.
70. The Tribunal sets aside the decision under review and finds that the respondent was not qualified for DSP during the claim period.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
L HastwellSigned: .....................................................................................
AssociateDates of Hearing 15/16 April 2008
Date of Decision 17 July 2008Advocate for the Applicant Ms M Welfare
Centrelink Legal Services Branch
Advocate for the Respondent Ms M Riley
Welfare Rights Centre
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