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

[2019] AATA 5523

Turnbull and Secretary, Department of Social Services (Social services second review) [2019] AATA 5523 (20 December 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7266

Re:Anthony Turnbull

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member I Thompson

Date:20 December 2019

Place:Adelaide

The Tribunal affirms the decision under review.

...........[Sgnd]..................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances, claim for disability support pension rejected, whether conditions were fully diagnosed, fully treated and fully stabilised during the assessment period – whether impairments attract 20 points or more under the Impairment Tables - the Tribunal affirms the decision under review

LEGISLATION

Administrative Appeals Tribunal Act 1975

Social Security Act 1991

Social Security (Administration) Act 1999

CASES

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

SECONDARY MATERIALS

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

REASONS FOR DECISION

Member I Thompson

20 December 2019

INTRODUCTION

1. The applicant, Anthony Turnbull, lodged a claim for disability support pension (DSP) on 6 April 2018.  Centrelink rejected the claim in the first instance and Mr Turnbull requested a review of that decision.  An authorised review officer (ARO) of Centrelink subsequently affirmed the decision.  Mr Turnbull requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1).  The decision under review was affirmed.  Mr Turnbull applied to the General Division of the Tribunal for a second review. 

2. The hearing took place on 20 November 2019.  Mr Turnbull attended the hearing by telephone and was self‑represented. Ms Odgers represented the respondent, the Secretary, Department of Social Services.

3. Mr Turnbull gave evidence. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 together with various medical reports and other documents.

4. Mr Turnbull is now 52 years old. He suffers from a number of medical conditions which include conditions relating to his back, shoulders, neck and mental health.

   LEGISLATION AND ISSUES

5. Section 94(1) of the Social Security Act 1991 (the Act) provides that a person is qualified for DSP if the person has a physical, intellectual or psychiatric impairment, and if that impairment attracts a rating of 20 points or more under the Impairment Tables.  The impairment must be present at the time of the claim or within the following 13 weeks, as specified by the Social Security (Administration) Act 1999 (the Administration Act). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  The assessment period in this case is 6 April 2018 to 6 July 2018.

6. Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:

   (a)They have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)They have actively participated in a “program of support”. 

7. The second requirement is not necessary if a person has a severe impairment of 20 points or more under a single Impairment Table.

8. Accordingly, Mr Turnbull will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, secondly that the impairment is rated at least 20 points under the Impairment Tables and, finally, that he has a continuing inability to work.

9. Mr Turnbull’s claim for DSP listed his disabilities, illnesses and injuries as “sciatica – nerve problem (surgery), spondylolisthesis – back (surgery), sleep apnoea - insomnia, obesity (surgery), anxiety, diabetes, ingrown toenails (surgery), long distance sight problem, swollen feet, memory problems, shoulder problems (require surgery), neck and spine damage (blackouts when looking up), high blood pressure.”[1]

   [1] Exhibit 1, T Documents, T10, at page 136.

10. The Secretary accepted that Mr Turnbull suffers from an impairment and therefore satisfied s 94(1) (a) of the Act.

11. In the statement of facts and contentions, the Secretary contended that:

    ·    Mr Turnbull’s right shoulder condition was diagnosed, treated and stabilised, however the appropriate impairment rating was zero points;

    ·    none of Mr Turnbull’s other conditions were fully diagnosed, fully treated and fully stabilised; and

    · an overall impairment rating of 0 points does not satisfy s 94(1)(b) of the Act.

12. Accordingly, the Secretary contended that Mr Turnbull did not have a continuing inability to work and was not qualified for the DSP during the assessment period.

13. The main issue for determination is whether Mr Turnbull’s impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work.

    EVIDENCE OF MR TURNBULL

14. Mr Turnbull gave evidence by telephone. He is 52 years old. He resides in regional South Australia and boards in a house owned by a friend. After leaving school he completed an apprenticeship in refrigeration and air-conditioning and worked for many years as a refrigeration mechanic. He was injured in a motor vehicle accident in 2000. He told the tribunal that, while there was there was some injury to his neck, the most serious problem was an injury to his back.

15. Following the accident, Mr Turnbull suffered spasms in his back. Treatment took place and eventually he was able to get back to work. However, the physical demands of work as a refrigeration mechanic were eventually too great and consequently he found full-time work in project management. He continued to have problems with his back, for example if he was standing at work, on site, he could not stand for more than about 10 minutes and he would have to sit down or walk it off. Even though he was not doing the physical work which he had previously done, he was still having problems with his back and he considered that it was gradually worsening over the following years.

16. In 2015, Mr Turnbull was a passenger in a motor vehicle accident. Initially the pain that he suffered appeared to amount to an exacerbation of his back condition. However, the worst problem was pain which he started to feel in his left leg. The pain was severe. He became inactive as a result of it. He had to use a walker or a stick to get around. He couldn’t walk around the Royal Adelaide Showgrounds with his children.

17. In 2018, Mr Turnbull had a spinal fusion. Prior to surgery, his doctor advised it should resolve the sciatic nerve pain, though not the back pain. However, Mr Turnbull said he couldn’t live with the sciatic nerve pain. The surgery resolved the sciatic nerve pain. However, the back pain continued.

18. The medical advice was correct. However, Mr Turnbull still required a stick or a walker for mobility. His back felt stiff, the spine was being held tight in one position, and he has reduced flexibility.

19. He has suffered  from numbness in the left leg and foot, with a feeling that the toes on the left foot are fat. The numbness is permanent. He drives a car. If he drives for more than 20 minutes he reaches a pain threshold. His car is a van and he can stop the vehicle and lie down in the back and rest. He drives his young children to and from school and kindergarten and sometimes cares for them into the evening, depending upon their mother’s work commitments.

20. Mr Turnbull said that he can cook some basic meals. Afterwards he has to lie down because the pain in his back is quite severe. He has difficulty moving his head from side to side. However, the worst problem is tilting his head back to look up. He sees black spots when he does this. Reaching overhead is not easy because of his shoulder. He doesn’t wash his clothes and he would not be able to hang clothes on the line because of the vision problems he has when he looks up. He cannot shower himself properly. He has problems getting dressed. He wears thongs or sandals. He uses a stick for short walks. In a shopping mall he uses a walker to assist him getting around. He said he uses the walking stick at home all the time when he is moving about the house.

21. Mr Turnbull could not recall specifically having medical treatment for his neck condition and does not recall being referred to specialists. In fact, he considers that the only problem he has with the neck is when he looks up and sees black spots.

22. Mr Turnbull had treatment after the 2015 accident for a right shoulder injury. The impact of that injury had been quite severe as he couldn’t lift things, not even a glass, and could not brush his teeth. With medication and rehabilitation there was some improvement, particularly with his ability to pick up things in normal household and daily activities and with aspects of self-care. He understands that a doctor has recommended surgery for the shoulder.

23. In relation to the shoulder, Mr Turnbull gave evidence that if he moves his arm up above his chest he feels pain. He can pick up a 1 litre carton, however he does not carry a shopping bag and needs help to bring the shopping home. He does not have problems writing. Using a keyboard can be painful because of arthritis in his hands.

24. Mr Turnbull considers that his marriage broke down because of the medical issues which he has and he thinks he may have depression. He consulted a psychologist. He found the psychology sessions were helpful. They assist him to reduce the discomfort he feels in social situations. The psychology assistance was useful for promoting his self-confidence.

25. Mr Turnbull considers that his situation has improved since the time he made his DSP claim in so far as the back surgery resolved the sciatic nerve pain. He has diabetes which appears generally to be under control, although he would like to get some medical advice in his new environment where he has resided for the last year. He acknowledges that he is obese and points out that his inability to do physical work and his problems with mobility are, or may be, a contributor to that problem. He suffers from severe pain in both hands and he has used a combination of creams and medication to try to mitigate its effects.

    CONSIDERATION

26. It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[2] at [34]:

    “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, 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 twelve 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.”

    [2] [2012] AATA 922.

27. The task for the Tribunal is to assess Mr Turnbull’s condition at the time of the DSP claim and the assessment period.  Accordingly, the applicable impairment rating, if any, for each of his conditions will be considered in turn by reference to the Impairment Tables.

    Impairment Tables

28. The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment.  They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations.

29. Section 6 of the Impairment Tables - Rules for Applying the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than two years.

30. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated, and fully stabilised.  The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.

31. Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and whether treatment is continuing or is planned in the next two years. 

32. Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised where a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.

33. Consideration must be given to whether each condition was fully diagnosed, fully treated and fully stabilised during the assessment period before determining an assessment rating, because the Impairment Tables provide this as a prerequisite for the allocation of an impairment rating.

    Spinal function

34. A radiology report dated 19 June 2015 indicated grade 1 – two spondylolistheses of L5 with disc degeneration, disc bulging, sclerotic neural arches and severe bilateral foramina stenosis. There was mild facet joint degenerative change noted at L4/5 and L5/S1.[3]

    [3] Exhibit A, T Documents, T14, page 219.

35. A general medical practitioner, Dr Pahuja, provided a report dated 26 June 2015 in which he referred to a diagnosis of lumbosacral pain - discogenic pain and neuropathic pain. Dr Pahuja confirmed that the diagnosis was supported by specialist opinion by an orthopaedic surgeon, Dr Yeo. Dr Pahuja indicated that the impact of the condition was expected to persist for more than 24 months and it was likely that will there would be deterioration in the condition.[4]

    [4] Ibid, pages 220 – 233.

36. In a report written on 23 September 2016, Dr Pahuja acknowledged that Mr Turnbull was suffering from an exacerbation of chronic lower back pain which would be consistent with the impact caused by the second motor vehicle accident in 2015.[5] Treatment had not led to any improvement in his pain levels despite attempts by a neurosurgeon to treat Mr Turnbull. He was also attending an exercise physiology group to assist him with weight reduction and fitness. This activity was organised by a general practitioner, Dr Sawyer, in conjunction with the neurosurgeon, Dr Yeo.

    [5] Ibid, at page 244.

37. The diagnosis of chronic low back pain was confirmed by Mr Turnbull’s general medical practitioners in medical certificates between July 2017 and August 2018.[6] The pain radiated down his left leg. It was also recorded that the back pain and was exacerbated by obesity. By August 2018, Mr Turnbull was noted to be recovering from back surgery, having physiotherapy, and gradually improving post operatively.

    [6] Ibid, pages 262 – 268.

38. Dr D’Onise is an occupational physician. He wrote a report dated 17 September 2018[7] in which he noted the injuries which Mr Turnbull sustained in the motor vehicle accidents in 2000 and 2015. He reported that Mr Turnbull’s past history of chronic pain is a risk factor for chronic pain in the future.

    [7] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions, Annexure A, pages 1 - 8.

39. Dr D’Onise’s report also provided a diagnosis of a whiplash associated disorder of the cervical spine causing aggravation of degenerative changes. As a result of his lumbar fusion, Mr Turnbull is at increased risk of degeneration in the adjacent joints of the lumbar spine.

40. In a report dated 19 October 2018,[8] Dr Pahuja noted the back surgery undertaken by Mr Turnbull in April 2018. The surgery was successful in relieving the pain in his leg. However, there was still restriction in the lower back caused by constant pain. Dr Pahuja referred to intermittent pain which Mr Turnbull suffers in his neck if he reaches above shoulder height, associated with dizziness and occasionally blurred vision. Dr Pahuja continued … –

    “Mr. Turnbull’s current situation is that he is unable to manage any self-care activities below knee height due to his back pain. Also he is not able to tend to household tasks which involve bending over or reaching up above head height. Even though he is able to manage light household activities at bench height this is also restricted as he is only able to stand for no more than 20 minutes at a time, and even then he needs to lean on something while standing. He is unable to attend to maintenance and gardening on the outside of his home due to his pain. He reports being able to sit for up to one hour at a time, however he can be quite restless as he gets uncomfortable due to his low back pain. When he is walking he requires the use of a cane or walker, and his movements are quite slow. He also reports ongoing symptoms of anxiety and depression due to his chronic pain issues and their effect on his day to day activities.”[9]

    [8] Ibid, pages 9 – 10.

    [9] Ibid, at page 9.

41. Dr Marshall is a consultant orthopaedic surgeon. He provided a report dated 15 November 2018 following an examination of Mr Turnbull.[10] He noted that Mr Turnbull had sustained an aggravation of his low back condition which has caused severe radiculopathy, following the accident in 2015. The severity of the condition was partially relieved by the spinal fusion. Further, surgical treatment was not necessary.  He did not consider that Mr Turnbull had sustained a cervical spine injury, rather that the current symptoms were a residue from the motor vehicle accident in 2000.

    [10] Ibid, pages 12 – 25.

42. A general medical practitioner, Dr Giamos, reported on 30 October 2018[11] that Mr Turnbull has a permanent impairment of the cervical and lumbar spinal function. In relation to cervical spinal function, Dr Giamos noted that Mr Turnbull was unable to sustain overhead activities such as accessing items overhead height as this generally causes dizziness and blurred vision, that he has reduced range of movements in the cervical spine, and is unable to turn his head to look over either shoulder.

    [11] Ibid, pages 35 – 36.

43. In relation to the lumbar spine, Dr Giamos noted that Mr Turnbull could bend forward to pick up a light object placed at knee height, however this could only occur if he uses an aide such as a walking stick. Dr Giamos wrote that Mr Turnbull has back pain on standing after 15 to 20 minutes and is unable to perform household tasks such as prolonged cooking, gardening or general household maintenance. In relation to self-care, the problems with the lumbar spine were problematic for showering as he is unable to bend forward to clean below knee height without support, he cannot undertake his own foot care, and requires the assistance of an aide such as a walking stick or table edge to get out of a chair.

44. Dr Giamos noted that the residual impairments exist despite back surgery, hydrotherapy, physiotherapy and chiropractic treatment which Mr Turnbull has had from time to time.

1. The Tribunal has come to the conclusion that Mr Turnbull’s spinal function was fully diagnosed, treated and stabilised during the assessment period and it is therefore assessable under Impairment Table 4 which provides the descriptors relating to spinal function.  It is used where the individual has a permanent condition which leads to functional impairment when performing activities involving bending or turning the back, trunk or neck.

2. For a mild functional impact, Impairment Table 4 states:

Points

Descriptors

5

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

(1)      The person has some difficulty in:

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

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

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

1. A moderate functional impact on activities involving spinal function attracts 10 points as set out in Impairment Table 4 as follows:

Points

Descriptors

10

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

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

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

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

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

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

1. Based on all of the evidence relating to the spinal function, the descriptors for a moderate functional impact are the most accurate reflection of Mr Turnbull’s impairment. Accordingly, a rating of 10 points under Table 4 is appropriate.

   Upper limb condition

2. Dr Pahuja’s report written on 23 September 2016 noted that Mr Turnbull’s shoulder injury was significantly improved with physiotherapy. There was a significant decrease in shoulder pain together with an increase in range of movement.

3. A radiology report dated 11 September 2015 of the right shoulder indicated severe degenerative AC joint changes with mild subacromial bursitis, mild supraspinatus, and infraspinatus tendinosis.[12]

   [12] Exhibit A, T Documents, T14, page 269 – 270.

4. Dr D’Onise reported on 17 September 2018 that Mr Turnbull had a diagnosis of right shoulder rotator cuff strain and bursitis which was complicated by a significant rotator cuff deconditioning and aggravation of previous asymptomatic degenerative changes.

5. Dr Marshall reported on 15 November 2018 that Mr Turnbull had aggravated a pre-existing degenerative AC joint which was causing him difficulties through subacromial bursitis. Dr Marshall did not consider that surgery was required for the shoulder, at least not until his back problems settled. He also suggested that Mr Turnbull should seek advice regarding his obesity which will cause continuing problems with his lumbar spine and prevent adequate mobility while also affecting diabetes, hypertension and sleep apnoea.

6. Impairment Table 2 concerns upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities that require the use of hands or arms.  The diagnosis of the condition must be made by a qualified medical practitioner and self-report of symptoms alone is not sufficient.

7. As previously indicated, the Secretary conceded that the upper limb condition was fully diagnosed, treated and stabilised in the assessment period. The Tribunal considers that this concession is correct.

8. In relation to mild functional impact, Impairment Table 2 states as follows:

Points

Descriptors

5

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

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

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

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

(c)     doing up buttons;

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

1. Based on all of the evidence relating to the spinal function, Mr Turnbull’s functional impairment corresponds with the descriptors in (1) (a), (b) and (d) above. Hence, a rating of 5 points under Impairment Table 2 is appropriate.

   Mental health function

2. Dr Waters, a consultant psychiatrist who assessed Mr Turnbull in relation to family court matters between 2000 and 2006, reported that Mr Turnbull experienced panic attacks and was a person with an anxious disposition.[13]

   [13] Ibid, pages 214 – 216.

3. Dr Pahuja’s report written on 26 June 2015[14] refers to a diagnosis of anxiety and depression. No treatment was being provided in 2015 and it was noted that the current symptoms were low self-esteem, poor sleep, and lack of motivation. There were panic attacks in the past. Dr Pahuja considered that the prognosis over the next two years was uncertain. He reported that Mr Turnbull needed to accept treatment and that input from a social worker would be beneficial.

   [14] Ibid, pages 220 – 233.

4. A psychologist, Mr Hare, reported on 24 September 2018 that he saw Mr Turnbull intermittently from July 2017 and diagnosed anxiety and depression. Mr Hare wrote that the condition was best described as “persistent depressive disorder with anxiety.”[15]

   [15] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions, Annexure A, page 11.

5. Subsequently, Mr Hare confirmed that he saw Mr Turnbull for the last time on 20 September 2018, shortly before Mr Turnbull moved to the Riverland. Mr Hare noted that there were a number of stressors in Mr Turnbull’s life that were causing him difficulty. He was taking “quite a lot of painkilling medication”. Mr Hare concluded that Mr Turnbull appeared to be coping better and, if nothing else, psychological intervention prevented a worsening of his condition.[16]

   [16] Ibid, page 34.

6. In the report dated 30 October 2018, Mr Turnbull’s general medical practitioner, Dr Giamos, noted the impact of Mr Turnbull symptoms of depression and anxiety.

7. It is necessary to quote in full the Rules 6(5) and 6(6) of the Impairment Tables in relation to the criteria for determining whether a condition is fully diagnosed, fully treated, and fully stabilised:

   Fully diagnosed and fully treated

   (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

   (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.

   Fully stabilised

   (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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 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.

   Note:    For reasonable treatment see subsection 6(7).

8. While there is no doubt that Mr Turnbull has suffered from depression and anxiety, the evidence does not provide a basis for finding that those conditions were fully treated and stabilised during the assessment period. In particular, the observations of Mr Hare reported on 4 March 2019 are significant, namely that further sessions of psychology would be beneficial.  Therefore, the Tribunal is unable to assign an impairment rating to this condition. 

   Other conditions

9. Dr Pahuja’s report (26 June 2015) mentions diabetes, obesity and sleep apnoea as conditions that were generally well managed with minimal or limited impact on Mr Turnbull’s ability to function. Dr Pahuja added that the combination of those comorbidities makes Mr Turnbull “an unfit man as a whole”.[17] However, none of those conditions individually or together have a bearing on the DSP claim. Equally, various conditions set out in a written statement by Mr Turnbull[18]  include issues that he has with his eyes, teeth, metabolism, blood pressure and arthritis. However, the evidence does not suggest that they are relevant in consideration of the DSP claim.

   [17] Exhibit A, T Documents, T14, page 229.

   [18] Ibid, page 250.

   SUMMARY

10. The Tribunal finds that s 94(1) (a) of the Act regarding physical impairment is satisfied.

11. As outlined, the Tribunal finds that Ms Turnbull’s spinal condition was fully diagnosed, fully treated, and fully stabilised during the assessment period.  The applicable rating for the spinal condition is 10 impairment points.

12. The Tribunal finds that Mr Turnbull’s upper limb condition was fully diagnosed, fully treated, and fully stabilised during the assessment period.  The applicable rating is 5 impairment points.

13. Ms Turnbull’s mental health condition was not fully treated and stabilised during the assessment period and no rating can be assigned in respect of it.

14. With a total of 15 impairment points, Mr Turnbull does not have an impairment, or combination of impairments, attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore he does not satisfy s 94(1)(b) of the Act.

15. In these circumstances, it is not necessary to consider whether or not during the assessment period Mr Turnbull had a continuing inability to work within the meaning of s 94(1)(c) of the Act.

16. As Mr Turnbull was not qualified for DSP at the time he lodged her claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.  This decision does not mean that the Tribunal underestimates the significant complexities of his medical conditions and the problems which they cause.  The effect of the Tribunal’s decision is that he does not meet the necessary criteria for qualification for DSP at the time he lodged the claim and during the subsequent assessment period.

    DECISION

17. The Tribunal affirms the decision under review.

73.     I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

.......[Sgnd]..............................................

Associate

Dated: 20 December 2019

Date of hearing:	20 November 2019
Applicant:	By telephone
Advocate for the Respondent:	Ms Lee-Anne Odgers, Department of Human Services