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

Wignall and Secretary, Department of Social Services (Social services second review) [2019] AATA 1979 (18 July 2019)
Division:GENERAL DIVISION
File Number:2018/7309
Re:Gregory Wignall
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:18 July 2019
Place:Brisbane

The Tribunal affirms the decision under review.
.......................[SGD].................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully 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
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
18 July 2019
INTRODUCTION

On 7 February 2018, Mr Gregory Wignall (the Applicant) lodged a claim for Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T9, pages 112-143, DSP claim form.
The claim was rejected on 13 April 2018,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. The decision was reviewed by an Authorised Review Officer (ARO) who affirmed the decision to refuse the application for DSP on 16 August 2018.[3]
[2] Exhibit 1, T Documents, T14, pages 158-159, Letter: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T19, pages 167-172, ARO Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on 28 November 2018.[4]
[4] Exhibit 1, T Documents, T2, pages 4-16, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 12 December 2018.[5]
[5] Exhibit 1, T Documents, T1, pages 1-3, Application for Review.
On 13 June 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
The Applicant had previously been granted the DSP in 1993 in relation to his multiple chemical sensitivity (MCS) condition. Having received a large compensation payment in 2003, his DSP was retrospectively cancelled with effect from 1998 and a preclusion period was put in place until February 2018.[6]
[6] Exhibit 1, T Documents, T2, page 6, paragraph 10, Decision of the SSCSD.
In 2012 the Applicant made a claim for DSP seeking to have his preclusion period shortened. A Job Capacity Assessment (JCA) Report dated 21 January 2013 recommended that the Applicant’s MCS condition be assigned 20 impairment points under both Table 13 and Table 15 of the Impairment Tables and that the Applicant’s spinal conditions be assigned 10 points under Table 4 of the Impairment Tables.[7] The Applicant’s 2012 claim for DSP was ultimately not successful as the preclusion period remained in place.
[7] Exhibit 1, T Documents, T7, pages 102-109, JCA Report.
On the Applicant’s DSP claim form, lodged with the Respondent on 7 February 2018, he lists his disabilities, illnesses or injuries as multiple chemical sensitivity and severe spinal injury.[8] He indicated that he had not participated in a Program of Support (POS).[9]
[8] Exhibit 1, T Documents, T9, page 138, DSP claim form.
[9] Exhibit 1, T Documents, T9, page 140, DSP claim form.
On 6 April 2018, the Applicant attended a JCA by telephone with a Registered Occupational Therapist.[10] The Assessor provided a JCA Report dated 13 April 2018 and based on the available medical evidence formed the view that the:[11]
·Applicant’s MCS condition was fully diagnosed, fully treated and fully stabilised, however there was no objective evidence available to support a rating under the Impairment Tables;
·Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised however there was no objective evidence available to support a rating under the Impairment Tables; and
·Applicant had a capacity to work 15-22 hours per week within 2 years with intervention.
[10] Exhibit 1, T Documents, T13, page 150, JCA Report.
[11] Exhibit 1, T Documents, T13, pages 150-157, JCA Report.
On 13 April 2018, the Applicant’s claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more.[12]
[12] Exhibit 1, T Documents, T14, pages 158-159, Letter: Rejection of DSP claim.
The Applicant sought review of this decision. On 21 June 2018, the Respondent sent the Applicant a request for new medical evidence.[13] On 2 July 2018 the Applicant returned the Claim for DSP Medical Evidence Checklist,[14] together with a medical checklist he had assembled[15] and a Centrelink Medical Certificate completed by his General Practitioner, Dr Michael McFall.[16] Outside of the medical certificate completed by Dr McFall, the Applicant did not provide any new medical evidence.
[13]    Exhibit 1, T Documents, T15, pages 160-161, Request for Medical Evidence.
[14]    Exhibit 1, T Documents, T16, pages 162-164, Claim for DSP Medical Evidence Checklist.
[15]    Exhibit 1, T Documents, T17, page 165, Medical Checklist.
[16]    Exhibit 1, T Documents, T18, page 166, Medical Certificate: Dr McFall.
On 16 August 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[17]
·You have the following permanent conditions: multiple chemical sensitivity syndrome and spinal disorder.
·You have been assigned an impairment rating of 0 points.
·You do not have an impairment rating of 20 points or more.
[17] Exhibit 1, T Documents, T19, pages 167-172, ARO Decision and Notes.
On 29 August 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[18] On 28 November 2018, the SSCSD affirmed the decision under review, making the following findings:[19]
(a)The Applicant’s MCS condition rated 10 points under Table 1, 5 points under Table 13 and 5 points under Table 15 of the Impairment Tables.
(b)The Applicant’s spinal condition rated 10 points under Table 4 of the Impairment Tables.
(c)The Applicant had not actively participated in a program of support at all and did not have a continuing inability to work.
[18] Exhibit 1, T Documents, T20, pages 173-174, Application to the SSCSD.
[19] Exhibit 1, T Documents, T2, pages 4-16, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (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).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[20]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[21] and
3.Does the Applicant have a continuing inability to work?[22]
[20]    Section 94(1)(a) of the Act.
[21]    Section 94(1)(b) of the Act.
[22]    Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(i)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(ii)are function based rather than diagnosis based; and
(iii)describe functional activities, abilities, symptoms and limitations; and
(iv)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[23] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[24] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[25]
[23]    Section 6(1) of the Determination.
[24]    Section 6(2) of the Determination.
[25]    Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment: if the person’s condition causing the impairment; is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[26]
[26] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[27]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[27] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered; 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 planned in the next 2 years.[28]
[28] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[29]
(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:
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.
[29] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliability be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[30]
[30] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[31] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[32] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[33]
[31]    Section 10 of the Determination.
[32]    Sections 10(3) and (4) of the Determination.
[33]    Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[34]
[34] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or 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.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[35]
[35] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[36]
[36] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[37]
[37] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 7 February 2018, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 9 May 2018. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention[38] and the Respondent considers the Applicant’s impairments include a MCS condition[39] and spinal condition.[40]
[38]    Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 6, paragraph 4.18.
[39]    Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 6-8, paragraphs 4.19-4.29.
[40]    Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 9, paragraphs 4.30-4.32.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
The Respondent accepts that the Applicant’s MCS and spinal conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and the resulting functional impact can be assessed for the purpose of assigning impairment ratings under the Impairment Tables.[41]
[41] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 6, paragraph 4.19; page 9, paragraph 4.30.
The Respondent contents that the Applicant’s MCS and spinal conditions however should be assigned 0 points under Table 1 (Physical Exertion or Stamina), Table 13 (Continence Function), Table 15 (Functions of Consciousness) and Table 4 (Spinal Function) on the basis that there is insufficient corroborating evidence of the functional impact of the Applicant’s conditions to rate any of the Applicant’s impairments under the Impairment Tables.[42]
[42] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 6-9, paragraph 4.19-4.32.
The medical evidence in relation to the Applicant’s claim for DSP includes:
·Judgment from the Compensation Court of New South Wales (NSW) dated 12 June 1998.[43]
·The report from Associate Professor C Winder dated 2 December 2002.[44]
·The report completed by Dr J Brown on 13 December 2012.[45]
·The report from Dr O Oguneseye completed on 12 April 2017.[46]
·The information provided by Dr J Brown by telephone on 6 April 2018.[47]
·The information provided by Dr Oguneseye by telephone on 6 April 2018.[48]
·The medical certificate completed by Dr M McFall dated 2 July 2018.[49]
[43]    Exhibit 1, T Documents, T4, pages 68-86, Judgment from the Compensation Court of NSW.
[44]    Exhibit 1, T Documents, T5, pages 87-93, Report: Associate Professor Winder, School of Safety Science.
[45]    Exhibit 1, T Documents, T6, pages 94-101, DSP Medical Report: Dr Brown.
[46]    Exhibit 1, T Documents, T9, page 143, Claim for DSP.
[47]    Exhibit 1, T Documents, T12, pages 148-149, Additional Medical Evidence for DSP Record: Dr John Brown.
[48]    Exhibit 1, T Documents, T11, pages 146-147, Additional Medical Evidence for DSP Record: Dr Oguneseye.
[49]    Exhibit 1, T Documents, T19, pages 167-172, Decision and Notes of the ARO.
The Applicant contends that the functional impacts of his MCS and spinal conditions have not improved since 2012. In a written submission received by the Tribunal on 14 May 2019, the Applicant contended that:[50]
·His MCS condition was fully treated and fully stabilised and has affected him since 1986. It causes him incontinence, nausea, diarrhoea, excessive urination, chronic headaches. It also causes his throat to close up.
·These symptoms are caused from exposure to a very wide range of chemicals in the environment including: pollution, fumes, paints, construction materials, cleaning products, food chemicals( particularly preservatives), sprays used on crops and dairy products, perfumes, deodorants, carpet, synthetic furniture, also some fruits and vegetables.
·His incontinence should be assigned 20 points under Table 13 as he suffers daily minor leakage of the bowel with enough faecal matter to soil underwear. The MCS also affects his bladder control. His body eliminates the toxins it is exposed to, to relieve suffering.
·He suffers headaches and nausea on a daily basis which cause him to lose focus and concentration.
·He does not take pain medication unless absolutely necessary as the side effects of the medication on his system are not worth it.
·Exposure to chemicals often causes his throat to close up and makes breathing difficult. Swallowing is severely restricted or not possible when his throat is swollen and when severely affected he will pass out for a period.
·He has a continuous inability to work 15 hours per week for the next two years because of these symptoms.
·His spinal condition is fully treated and fully stabilised and he has constant back pain and headaches from a severe motor vehicle accident that resulted in his spinal fusion in 1985.
[50] Exhibit 3, Applicant’s submission.

At the Hearing, the Applicant provided evidence that was consistent with the evidence set out in his written submission and that was previously provided to the SSCSD and relevant Job Capacity Assessors. The Applicant told the Tribunal about the functional impacts of his MCS and spinal conditions providing that:
·His spinal condition causes him pain 24 hours a day, 7 days a week.
·He does not take pain killers for his back pain because of the side effects due to his MCS condition.
·In relation to Table 4 of the Impairment Tables, he would not meet the requirements to be assigned 20 points. However, he would meet the requirements to be assigned 10 points as he is able to sit or drive a car for at least 30 minutes, but is unable to sustain overhead activities and has difficulty moving his head to look in all directions.
·As a result of his MCS condition he lives a quiet life, his house is hypo allergenic and he picks his battles in relation to when he will go out or attend family functions. He gave an example that if he goes to dinner at a restaurant he would be ill for a couple of days afterwards. He manages his symptoms with medications such as Imodium and antihistamines.
·In relation to Table 15 of the Impairment Tables which deals with Functions of Consciousness, he would not meet the requirements to be assigned 10 or 20 points. However, he would meet the requirements to be assigned 5 points as his losses of consciousness episodes do not usually require hospitalisation.
·In relation to Table 13 of the Impairment Tables, which deals with Continence Function, there had been no change since 2013. He stated that he meets the requirements to be assigned 20 impairment points as he had a severe functional impact on maintaining continence of bowel. He said he has minor leakages of the bowel every day and that this may occur more than once a day both when he is at home or is outside of his house.
·He did not want to consider Table 1 of the Impairment Tables.
·He could not undertake a training activity. He had not been teaching since 1986 and everything has changed. He has limited computer skills and cannot sit in front of a computer for long as it affects his MCS.
The Applicant told the Tribunal that there are only two ways to deal with MCS and that is by elimination or excretion. He said that there is nothing that doctors can do to help so he does not badger them – he tries to manage his MCS condition by avoiding exposure to chemicals.
On cross-examination, the Applicant told the Tribunal that:
·He takes medications that can predominately be purchased over the counter or at the supermarket which help to manage his symptoms but do not fix them.
·He acknowledges that references through the medical information and in his evidence refer to diarrhoea and that is different to faecal incontinence, and that there is no reference to minor leakage of the bowel. He said however that, that is a play on words and faecal incontinence is not something he wants to have to talk to people about and he tries to ensure he takes steps to limit its occurrence when he goes to the doctor, etc.
Based on the medical evidence before the Tribunal and the evidence provided by the Applicant at the Hearing, I find that the Applicant’s MCS and spinal conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and the subsequent functional impacts can be considered under the Impairment Tables.
I accept that the Applicant’s MCS and spinal conditions cause functional impacts that can be assessed under Table 1 (Physical Exertion or Stamina), Table 13 (Continence Function), Table 15 (Functions of Consciousness) and Table 4 (Spinal Function) of the Impairment Tables.
The issue for the Tribunal is that the Determination requires that the Impairment Tables only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[51] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[52]
[51] Section 6(2) of the Determination.
[52] Section 8(1) of the Determination.
In this case, medical evidence provided from Dr Oguneseye and Dr McFall in 2018 are based on self-reports of the Applicant. Dr Oguneseye provided that the Applicant was a new patient whom he had seen three times and that he could not comment on prognosis, confirm or add any details as he had not seen the Applicant present with any of his stated symptoms.[53]
[53] Exhibit 1, T Documents,
Further, the Applicant seeks to rely on the Medical Report for DSP, dated 13 December 2012, completed by Dr Brown which at that time provided:[54]
·Diagnosis: Multiple Chemical Sensitivities
·Current symptoms: On exposure – diarrhoea/nausea, blackouts, also respiratory embarrassment, headaches – (No change since previous DSP)
·Impact on ability to function: Cannot wait for toilets
·Diagnosis: L5/S1 Spinal Fusion for lower spinal instability
·Current symptoms: Low back, stiffness, difficulty bending (No change since previous DSP)
·Impact on ability to function: No bending, no lifting, no carrying
[54] Exhibit 1, T Documents, T6, pages 94-101, DSP Medical Report: Dr Brown.
When contacted by the JCA on 6 April 2018, Dr Brown reported that he had not seen the Applicant since 2016 and that he could not comment on prognosis or current functional impact.[55]
[55] Exhibit 1, T Documents, T12, pages 148-149, Additional Medical Evidence for DSP Record: Dr Brown.
The evidence provided in the Judgment from the Compensation Court of NSW dated      12 June 1998[56] and the report from Associate Professor C Winder dated 2 December 2002[57] support that the Applicant’s conditions were fully diagnosed, fully treated and fully stabilised and would have caused functional impairments at the Relevant Period. These documents however provide a historical view in relation to the functional impact of the Applicant’s MCS condition since onset in 1985 to 2002. The relevance of this information is limited in value to the statements that the Applicant’s MCS condition cannot be cured and the effects may worsen.
[56]    Exhibit 1, T Documents, T4, pages 68-86, Judgment from the Compensation Court of NSW.
[57]    Exhibit 1, T Documents, T5, pages 87-93, Report: Associate Professor Winder, School of Safety Science.
The issue before the Tribunal is whether the historical evidence is sufficient to corroborate the Applicant’s self-reported symptoms and functional impairments such that a current impairment rating can be assigned under the Impairment Tables. On this matter the Tribunal accepts the contentions of the Respondent that the current evidence before the Tribunal is insufficient to rate the Applicant’s MCS and spinal conditions under the Impairment Tables. As such, I find that the Applicant’s MCS condition can be assigned 0 points under Tables 1, 13 and 15 of the Impairment Tables and his spinal condition can be assigned 0 points under Table 4 of the Impairment Tables.
It is noted that the SSCSD assigned the Applicant’s conditions ratings under the Impairment Tables, however still found that the Applicant was not qualified for DSP at the Relevant Period as he was found not to have a severe impairment and had not completed a POS. At the Hearing, the Applicant acknowledged that to be successful in his claim for DSP he would need to meet the severe functional impact descriptors under at least one of the Impairment Tables. His evidence was that he agreed that he did not meet these descriptors under Tables 4 or 15 however he contended that he met the severe functional impact descriptors under Table 13.
Even if I was satisfied that there was sufficient corroborating evidence before the Tribunal to assign an impairment rating for the Applicant’s MCS condition under Table 13 of the Impairment Tables, I agree with the view of the SSCSD that an impairment rating of 5 points, and no higher, could be assigned.[58] While I accept the evidence provided by the Applicant in relation to his bowel continence function there is no corroborating evidence to support a rating higher than 5 impairment points under Table 13.
[58] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 11-12, paragraphs 28-30.
Where a person does not have an impairment rating of 20 points (being a severe impairment) under a single Impairment Table, they must have completed a POS or meet a relevant exemption. The evidence before the Tribunal is that the Applicant had not, at the Relevant Period, been enrolled in or participated at all in a POS.[59] As such the Applicant, has not completed a POS and the exceptions from doing so do not apply.
[59] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 9-11, paragraphs 4.35-4.47.
As such, based on the evidence before the Tribunal, even if I had found that the Applicant’s MCS and spinal conditions should be assigned 20 impairment points or more in total across the Impairment Tables, he would not have met the requirements to be granted DSP.
Continuing Inability to Work
As I have found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act in any more detail than that provided at paragraph 50 above.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s multiple chemical syndrome condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the limited evidence before the Tribunal, I find that the condition can be assigned 0 points under Tables 1, 13 and 15 of the Impairment Tables.
I find that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the limited evidence before the Tribunal, I find that the condition can be assigned 0 points under Table 4 of the Impairment Tables.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

............................[SGD]................................
Associate
Dated: 18 July 2019

Date of hearing: 13 June 2019

Applicant: By phone

Advocate for the Respondent: Ms Jacky Vetter

Solicitors for the Respondent: Sparke Helmore Lawyers

T11, pages 146-147, Additional Medical Evidence for DSP Record:

Dr Oguneseye.

[2019] AATA 1979

18 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	13 June 2019
Applicant:	By phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers