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

[2022] AATA 30

Twaddle and Secretary, Department of Social Services (Social services second review) [2022] AATA 30 (14 January 2022)

Division:GENERAL DIVISION

File Number:          2020/7527

Re:David Gary  Twaddle

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member B Cullen

Date:14 January 2022

Place:Brisbane

The Tribunal affirms the decision under review.

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

Member B Cullen

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, treated and stabilised – whether 20 points or more under the Impairment Tables during the relevant period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES

De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Secretary, Department of Employment and Workplace Relations v Harris (2007) 97 ALD 534

REASONS FOR DECISION

Member B Cullen

14 January 2022

BACKGROUND AND CLAIM HISTORY

1. On 27 November 2017, Mr Twaddle (the Applicant), lodged a claim for Disability Support Pension (“DSP”) with the Respondent. The “medical details” section of the claim was left blank [T30 at 186].[1]

   [1]     All references to Exhibit 1, which is the T Documents before the Tribunal. The relevant T Document number and      page reference is provided in the in-line text.

2. On 1 December 2017, a Rehabilitation Counsellor assessed the Applicant’s file for the purposes of a DSP Medical Eligibility Assessment Recommendation. The assessor identified the Applicant’s conditions, using information available from previous claims, as:

   ·Osteomyelitis of the spine with chronic lower back pain (“spinal condition”);

   ·Hypertension;

   ·Diabetes; and

   ·Anxiety.

3. According to the assessor, there was insufficient evidence to determine that the Applicant’s conditions were fully diagnosed, treated and stabilised. On 19 December 2017, the Respondent rejected the Applicant’s claim for DSP [T31 at 191]. On that same day, a Centrelink officer called the Applicant to advise him that there was “insufficient medical evidence to progress” his claim and advised him “to provide further medical evidence within 13 weeks and [the] “claim can be reopened” [T58 at 491].

4. The Applicant requested review of the decision rejecting his claim for DSP on 23 January 2018 [T58 at 492].

5. On 12 July 2018, following the receipt of additional information from the Applicant, a Rehabilitation Counsellor recommended a further Job Capacity Assessment (“JCA”) [T37 at 229].

6. The JCA was completed by a registered psychologist on 22 August 2018, with assistance from a registered occupational therapist [T38 at 231]. The JCA recommended that:

   (a)The Applicant’s spinal condition was fully diagnosed, treated and stabilised, and rated 10 points under Table 4 of the Impairment Tables [T38 at 232 and 234];

   (b)The Applicant’s diabetes was fully diagnosed, but not fully treated and stabilised [T38 at 232-233];

   (c)The Applicant’s hypertension and anxiety conditions were “verified”, but not fully diagnosed, treated and stabilised [T38 at 233];

   (d)The Applicant’s hernia condition was identified and fully diagnosed, but not fully treated and stabilised, as the Applicant was scheduled to undergo a CT scan, with surgery likely to follow [T38 at 233-234]; and

   (e)The Applicant’s work capacity was assessed as “Capacity for work within 2 years with Intervention Work Capacity: 15-22 Hours per week”, in “Light skilled” work [T38 at 236].

7. On 8 April 2020, the Applicant lodged a new claim for DSP [T49 at 415] which was granted, following review by the Social Services and Child Support Division of the Tribunal (“SSCSD”) on 31 August 2020 [T54 at 459]. The Applicant was paid DSP commencing from 8 April 2020 [T57 at 474]. The Applicant continued to receive the DSP at the time of hearing.

8. On 26 August 2020, an Authorised Review Officer (“ARO”) reviewed and affirmed the original decision that is the subject of this review.

9. The ARO, in its 26 August 2020 decision, acknowledged that the JCA had assessed the Applicant’s impairments during the wrong Qualification Period for the claim under review because the JCA considered the referral to be for a new DSP Claim, instead of being for an “appeal” [T53 at 458]. Because of this error, the JCA “did not look at medical evidence for appeal period. Subsequently by 20^th August 2018, condition was considered DTS and spinal condition was rated as 10 points (which appears to be the correct rating if it was a new claim – but not an appeal for rejection of DSP 19 December 2017)” [T53 at 458].

10. Recognising the JCA’s error in this respect, the ARO found that all of the Applicant’s conditions were not fully diagnosed, treated and stabilised at the time of the appeal period. [T53 at 458].

11. On 11 September 2020, the Applicant requested review by the Social Services and Child Support Division of the Tribunal (“AAT1”) [T60 at 509]. The decision was affirmed by the AAT1 on 26 October 2020 [T2 at 3].

12. On 7 January 2021, the Applicant applied to this Tribunal for a review of the AAT1’s decision [T1 at 1].

13. The Applicant has filed the following additional evidence in the Tribunal:

    ·Two photographs of a document entitled “Questions for doctors you saw between 27 November 2017 to 26 February 2018” [Attachment to the T-Documents].

    ISSUES FOR DETERMINATION

    The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”).

14. Section 94(1) of the Act requires that the Applicant meet several requirements to qualify for DSP (“Section 94 Requirements”):

    ·The Applicant must have a physical, intellectual, or psychiatric impairment;

    ·The impairment is considered permanent;

    ·The Applicant’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Determination;[2] and

    ·The Applicant must have a continuing inability to work.

    [2] A legislative instrument made under the Act: see s 26(1).

15. The date for determining whether the Applicant meets the Section 94 Requirements is the date of his claim (27 November 2017), unless the Applicant becomes qualified within 13 weeks of lodging the claim, in which case, his start day is the day he becomes qualified.[3] Therefore, in order to qualify for DSP, the Applicant must have met the Section 94 Requirements between 27 November 2017 and 26 February 2018 (“Qualification Period”).

    [3]     See ss 41 and 42, and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)

16. In making a decision about whether the Applicant meets the Section 94 Requirements, the Tribunal can only consider medical evidence that relates to the functional impact of the Applicant’s impairments after the Qualification Period to the extent that it “may cast light on” the functional impact of the impairments within the Qualification Period.[4]

    DID THE APPLICANT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?

    [4]     See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1],

    What is an Impairment?

17. The Determination contains the rules for applying the Impairment Tables and defines “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” to mean “a medical condition”.[5]

    [5] Determination, s 3.

    Conclusion on Impairments

18. At the hearing, and in its Statement of Facts and Contentions, the Respondent accepted that the Applicant had impairments including a spinal condition, diabetes, hypertension, mental health condition (anxiety), and a hernia condition, which satisfied section 94(1)(a) of the Act during the Qualification Period.[6]

    [6]     Secretary’s Statement of Facts and Contentions, dated 23 July 2021, paragraphs 37-50.

19. Considering the above evidence, the Tribunal finds that during the Qualification Period, the Applicant had a spinal condition, diabetes, hypertension, mental health condition (anxiety), and a hernia condition which are impairments for the purposes of the Act. Therefore, the requirements in section 94(1)(a) of the Act has been met.

    DO THE APPLICANT’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?

    How are Impairment Ratings Assessed?

20. The Impairment Tables are used to assess whether a person satisfies the qualification requirement in section 94(1)(b) of the Act.[7] They are function based,[8] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[9]

    [7]Determination, ss 4(2) and 5(2)(a).

    [8] Determination, s 5(2)(b) and (c).

    [9] Determination, s 5(2)(d).

21. An Impairment Rating can only be assigned to an impairment if:[10]

    ·the condition causing that impairment is “permanent”; and

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

    [10] Determination, s 6(3).

22. The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[11]

    [11]    De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

23. The Applicant’s conditions can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[12]

    ·The condition has been fully diagnosed by an appropriately qualified medical practitioner;

    ·The condition has been fully treated;

    ·The condition has been fully stabilised; and

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

    [12] Determination, s 6(4).

24. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated,[13] the following is to be considered:[14]

    ·Whether there is corroborating evidence of the condition;

    ·What treatment or rehabilitation has occurred in relation to the condition; and

    ·Whether treatment is continuing or is planned in the next 2 years.

    [13] For the purposes of ss 6(4)(a) and (b) of the Determination.

    [14] Determination, s 6(5).

25. A condition is fully stabilised[15] if:[16]

    (a)Either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

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

    (i)Significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[17] or

    (ii)There is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [15] For the purposes of ss 6(4)(c) and 11(4) of the Determination.

    [16] Determination, s 6(6).

    [17]    For “reasonable treatment”, see s 6(7) of the Determination.

26. In relation to the Applicant’s impairments, the Respondent’s position at hearing was that:

    ·The spinal condition and hernia impairments were fully diagnosed during the Qualification Period, but were not fully treated and stabilised; and

    ·The diabetes, hypertension, and mental health condition (anxiety) were not fully diagnosed, treated and stabilised during the Qualification Period.

27. For these reasons, the Respondent’s position was that the Tribunal should not go on to assign Impairment Ratings using the Impairment Tables.

28. The Tribunal must consider the Applicant’s medical history, and the evidence given by him at hearing, in order to make a decision about whether each impairment was fully diagnosed, treated and stabilised.[18]

    The Applicant’s Medical Conditions

    [18] Determination, see s 6(2).

    Spinal Condition

29. The applicant had back surgery at the Cairns Hospital on 29 March 2017 to treat a mycobacterial infection (specifically, mycobacterium avium complex, or “MAC”), which had caused osteomyelitis of his spine. The medical evidence before the Tribunal in relation to the Applicant’s spinal condition, during the Qualification Period, is summarised in the table following:

Date	Doctor/Reference	Substance of Report
29 March 2017	Queensland Health Discharge Summary – Dr Christopher Morrey [T34 at 207]	Diagnosis: “MAC osteomyelitis of the spine”. “Anterior L3 and L4 vertebrectomy, removal infected L3-4 cage and anterior stabilization and plating L2 to L5.” Clinical Management includes “ongoing physiotherapy” and “ongoing reviews by infectious diseases team”.
24 November 2017	Report by Dr Candice Holland, Registrar, Infectious Diseases Clinic [T34 at 205]	Remarks include: “We will continue his current antibiotic regimen until February as planned. We will also refer him to physiotherapists and review him in one month’s time with repeat bloods at this stage.”
13 February 2018	Report by Dr Kimberly Oman, Physician, Infectious Diseases Clinic [T41 at 246]	Dr Oman was not certain, based on comments made to her by the Applicant that he still had “extensive metalwork including a cage,” whether he had “prosthetic material” removed from his back during his March 2017 surgery. Dr Oman indicated that she needed to get information from Dr Morrey to determine whether he could have an MRI. She indicated that she would extend the medication regime for an additional 6 weeks whilst clarifying aspects of his past surgery.

1. The medical evidence before the Tribunal in relation to the Applicant’s spinal condition, which falls outside the Qualification Period that ended on 26 February 2018, is summarised in the table following:

11 May 2018	Dr Brett Scott, General Practitioner, Centrelink Medical Certificate [T35 at 221]	Dr Scott says, “now back is indeed ruined” and “chap is almost in a wheelchair”.
31 July 2018	Report by Dr Kimberly Oman, Physician, Infectious Diseases Clinic [T41 at 248-249]	Records that the Applicant had stopped the antibiotics he was taking for mycobacterium avium vertebral osteomyelitis in April 2018. Recommends further review due to ongoing pain as “there may or may not be a collection that would be amenable to draining”.
16 August 2018	Report by Dr David Fraser, Orthopaedic Registrar, Orthopaedic/Fracture Clinic [T40 at 242]	The Applicant had static back pain. He was also troubled by a large ventral hernia, which the Applicant reported was being investigated. Report concludes, “After he has his hernia addressed, if the radiating flank pain remains an issue, a referral to a pain specialist may be warranted.”
17 September 2019	Report by Dr Bruce McPhee, Spinal Surgeon, prepared for an unrelated claim by the Applicant [T47 at 383]	Report traverses the Applicant’s health history, including spinal osteomyelitis/Mycobacterium Avium Complex (MAC) discitis. Dr McPhee notes that the Applicant’s “antituberculous chemotherapy” ceased in March of 2018 [T47 at 385). Dr McPhee considered the Applicant’s spinal condition to be stabilised. Dr McPhee was instructed, at the request of lawyers, on 13 August 2019, and met the Applicant to prepare the report on 4 September 2019. Dr McPhee provides an expert opinion in relation to the Applicant’s functional impairments as at the time of his September 2019 report. There is no indication that Dr McPhee assessed the Applicant during the Qualification Period or considered his functional impairment during the Qualification Period.

1. The Respondent accepts that the Applicant’s spinal condition was fully diagnosed during the Qualification Period. The Tribunal finds, on the basis of Dr Morrey’s 27 March 2017 post-surgical report, that the Applicant’s spinal condition was, therefore, fully diagnosed at the time of his claim for DSP on 27 November 2017.

   Was the Spinal Condition Fully Treated and Stabilised?

2. The Respondent’s position in relation to the Applicant’s spinal condition was that the Applicant had not completed treatment, including a course of antibiotics, antituberculous chemotherapy, specialist investigation and physiotherapy during the Qualification Period, such that the condition could not be found to have been fully treated and stabilised.

3. At hearing, the Applicant said that his last operation was in February of 2017, and that he considered his spinal condition to be fully treated and stabilised because [Transcript at 11]:

   “All the operations were all finished, all my operations were finished except for a hernia operation. But all the other operations were finished. I hadn't needed any more operations on my back, so there's nothing more they could do. That’s what the bottom line is.”

4. The Applicant places emphasis on the surgery as being the end of his treatment; however, the related antibiotics, antituberculous chemotherapy, specialist investigation and physiotherapy are important aspects of treatment. Although Dr Morrey prescribed ongoing physiotherapy for the Applicant following his surgical discharge in March of 2017, the Applicant did not complete any physiotherapy, as he was unable to, from prison. There is no evidence that the Applicant completed any physiotherapy following his release from prison in September of 2017. The Applicant explained the practical issue to the Tribunal as follows [Transcript at 11]:

   “I was released back into prison so you don’t get much care in there. You've got no access to physio. I was supposed to have physio, I was supposed to have (indistinct) but I never got any of that because you just can't get that in prison. And I was just on my tablets, on the - the antibiotics they give me.”

5. The Applicant also said that although he ceased the antituberculous chemotherapy about after the Qualification Period ended, he was only kept on his medication “as a precautionary measure”. The Applicant indicated at hearing that he was referring to Dr Oman’s report of 14 February 2018 [T41 at 246] to conclude that the antibiotics were precautionary. The report indicates that the Applicant had “some back pain but not over the area of his spine,” following his car being hit a few days before his 13 February 2018 appointment with Dr Oman.

6. The Tribunal does not interpret Dr Oman’s comments in this report to support a finding that Dr Oman considered the Applicant’s treatment to be fully treated and stabilised. The reason that the Applicant’s medications were continued was to facilitate Dr Oman “clarifying aspects of his surgery with his orthopaedic surgeon” (Dr Morrey), so that Dr Oman could consider whether he should have an MRI following his car accident and report of back pain.

7. The Qualification Period ended on 26 February 2018 for purposes of the DSP application under review. The evidence before the Tribunal is that the Applicant did not complete antituberculous chemotherapy until March of 2018, and was continuing his medication for 6-weeks, following his 13 February 2018 appointment with Dr Oman. As late as August of 2018, Dr Fraser refers to the possible need to refer the Applicant to a pain specialist. The Tribunal considers that the Applicant was still being treated for the spinal condition beyond the ending of the Qualification Period.

1. On the basis of the evidence available to it, the Tribunal finds that the Applicant’s spinal condition was not fully treated and stabilised during the Qualification Period. Given this finding, the Tribunal cannot assign an Impairment Rating to the spinal condition under the Impairment Tables.

   Hernia

2. The medical evidence before the Tribunal in relation to the Applicant’s hernia condition, all of which fell outside the Qualification Period that ended on 26 February 2018, is summarised in the table following:

Date	Doctor/Reference	Substance of Report
22 August 2018	JCA Report [T38 at 234]	The Applicant reported that he was scheduled to undergo a CT scan in the coming days with surgery likely to follow (for hernia repair).
11 December 2018	Report by Dr Lachlan Young, General Surgery Intern for Dr David McCallum, Surgical Outpatients Clinic [T41 at 250-251]	Reviews the Applicant’s 5-year history of abdominal hernias; plans for surgery; discusses need for weight loss to optimise outcome of surgical repair; organises clinical review in February 2019 to assess the Applicant’s weight loss progress and to find a surgical booking.
24 April 2019	Medical Certificate from Dr Harmanjit Dev, Townsville Hospital [T45 at 366]	States that the Applicant had hernia repair surgery on 18 April 2019 and “strictly no heavy lifting for 6 weeks post surgery”.

1. At the hearing, the Applicant gave evidence that the hernia repair surgery had assisted his ability to walk around. He said that the hernia “stopped me from walking without a walking stick because I had no core strength”.

2. The Respondent accepts that the Applicant’s hernia was fully diagnosed during the Qualification Period. The Tribunal finds that, on the basis of Dr Young’s 11 December 2018 report outlining the Applicant’s 5-year hernia condition history, the Applicant’s hernia condition was, therefore, fully diagnosed at the time of his claim for DSP on 27 November 2017.

   Was the Hernia Condition Fully Treated and Stabilised?

3. The Qualification Period ended on 26 February 2018 for purposes of the DSP application under review. The Applicant’s hernia surgery did not take place until 18 April 2019 – approximately 14-months later.

4. On the basis of the evidence available to it, the Tribunal finds that the Applicant’s hernia condition was not fully treated and stabilised during the Qualification Period. Given this finding, the Tribunal cannot assign an Impairment Rating to the hernia condition under the Impairment Tables.

   Mental Health Condition (Anxiety)

5. The medical evidence before the Tribunal in relation to the Applicant’s mental health condition (anxiety) is summarised in the table following:

Date	Doctor/Reference	Substance of Report
7 December 2017	Report by Dr Dharma Herath, Registrar, Townsville Hospital [T34 at 202]	Scored the Applicant as moderate on the Depression Anxiety Stress Scale (DASS). Traverses the Applicant’s mental health history. Refers to telephone appointments the Applicant had fortnightly with psychologist Kate Hall from Livingwell in Brisbane, whilst in prison.
12 January 2018	Letter of Support by Ms Cate Harvey, Social Worker/Specialist Counsellor with Livingwell Service for Men [T34 at 219]	Reports having worked with the Applicant since June 2016; that the Applicant was a victim of childhood sexual abuse; and that they have worked to lower his anxiety to a manageable level. Ms Harvey reports that Applicant’s symptoms have increased due to the expectation that he seeks work while receiving Newstart Allowance.
11 May 2018	Dr Brett Scott, General Practitioner, Centrelink Medical Certificate [T35 at 221]	Lists “child abuse victim” as a medical condition. Confirms that the Applicant was unfit for work from 11 May 2018 to 11 August 2018.

1. The introduction to the Impairment Tables requires that a diagnosis of a mental health condition is made by an appropriately qualified medical practitioner (for example, a psychiatrist). Where a diagnosis has not been made by a psychiatrist, it is to be supported by evidence from a clinical psychologist.

2. While Dr Herath, Registrar, refers to the Applicant as having attended fortnightly telephone consultations with a psychologist, Kate Hall, there is no evidence from Kate Hall before the Tribunal.

3. The Respondent submits, correctly in the Tribunal’s view, that there is no evidence before the Tribunal of a mental health condition diagnosis having been made or confirmed by a psychiatrist or clinical psychologist. The evidence before the Tribunal in relation to the Applicant’s mental health condition (anxiety) comes from a registrar, general practitioner, and social worker/specialist counsellor. The evidence from Dr Scott is perfunctory, and does not extend to a diagnosis, but confirms awareness of the Applicant’s childhood sexual abuse. On this basis, the Tribunal cannot conclude that the condition was fully diagnosed during the Qualification Period.

4. Having determined that the Applicant’s mental health condition (anxiety) was not fully diagnosed by an appropriately qualified medical practitioner, it is not necessary for the Tribunal to go on and consider whether the mental health condition was treated and stabilised at the time of the Applicant’s claim for DSP, as the Tribunal would not be able to assign an Impairment Rating under the Impairment Tables.

   Diabetes and Hypertension Condition

5. The medical evidence before the Tribunal in relation to the Applicant’s diabetes and hypertension conditions’ is summarised in the table following:

Date	Doctor/Reference	Substance of Report
29 March 2017	Queensland Health Discharge Summary – Dr Christopher Morrey [T29 at 156]	Refers to “HTN” (hypertension) in the Applicant’s previous medical history.
7 December 2017	Report by Dr Dharma Herath, Registrar, Townsville Hospital [T34 at 202-203]	Refers to Management Plan, including educating the Applicant “on importance of regular healthcare checks owing to his diabetes”. Recommends the Applicant attend regular podiatry, hydrotherapy, and physio. Hypertension not listed.
27 December 2017	Report by Dr Brett Scott, General Practitioner, Ingham Family Medical Practice [T33 at 196]	Records past medical history as including Type 2 Diabetes Mellitus since 2001.
22 August 2018	JCA Report [T38 at 232-233]	The Applicant reported to the JCA that “his recent blood sugar levels had been normal and no specific functional impacts were reported at present”. The Applicant further indicated his hypertension/blood pressure was “somewhat elevated at present”.
11 December 2018	Report by Dr Lachlan Young, General Surgery Intern for Dr David McCallum, Surgical Outpatients Clinic [T41 at 250-251]	Notes that the Applicant had “well controlled diabetes mellitis”. Hypertension not listed.

Was the Diabetes/Hypertension Condition Fully Diagnosed?

1. The Respondent’s position in relation to the Applicant’s diabetes/hypertension condition is that there is insufficient medical evidence to enable the Tribunal to find that the condition was fully diagnosed during the Qualification Period. Although there is some anecdotal indication of the Applicant having reported diabetic and hypertension issues, there is no diagnosis of same by a medical practitioner. The Respondent is correct in asserting that the “Introduction to Table 1” of the Impairment Tables, states that self-reporting of symptoms alone is insufficient, and that there must be corroborating evidence of the Applicant’s impairment. On this basis, and given the absence of evidence corroborating the Applicant’s self-reporting, the Tribunal cannot conclude that the diabetes/hypertension condition was fully diagnosed during the Qualification Period.

2. Having determined that the Applicant’s diabetes/hypertension was not fully diagnosed during the Qualification Period, it is not necessary for the Tribunal to go on and consider whether the diabetes/hypertension condition was treated and stabilised at the time of the Applicant’s claim for DSP, as the Tribunal would not be able to assign an Impairment Rating under the Impairment Tables.

   CONCLUSION

3. Having made the decision that none of the Applicant’s conditions were fully treated and stabilised during the Qualification Period, the Tribunal is unable to assign any of the conditions an Impairment Rating.

4. It is therefore not necessary for the Tribunal to go on and consider whether the Applicant had a continuing inability to work as defined in section 94(2) of the Act.

   DECISION

5. The Applicant’s claim fails because his impairments did not attract 20 or more points under the Impairment Tables, therefore, he did not qualify for DSP during the Qualification Period under section 94(1)(b) of the Act.

6. The decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member B Cullen

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

Associate

Dated: 14 January 2022

Date of hearing:

9 August 2021

Applicant:

Solicitors for the Respondent:

By Phone

Ms Maleah Underhill
Services Australia

    Act 1999 (Cth).

and on appeal, Secretary, Department of Employment and Workplace Relations v Harris (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.

[2014] FCA 368 at [12].