Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999

SOCIAL SECURITY - Disability Support Pension - rejection of claim - decision under review affirmed

Social Security Act 1991

Social Security (Administration) Act 1999

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023

1. Ms HTPF applied for a grant of disability support pension (DSP) on 10 September 2023, identifying a condition of neuropathic foot pain. Unusually, Ms HTPF stated in her claim form that she was not receiving any treatment, did not require any treatment, but just needed to take care not to work on her feet.
2. Ms HTPF's claim was rejected by Centrelink on 27 September 2023 on the basis that the identified medical condition of neuropathic foot pain had not been diagnosed, reasonably treated or stabilised. An authorised review officer affirmed that decision on 23 July 2024, following a request for internal review made by Ms HTPF on 7 November 2023.
3. Ms HTPF applied to the Administrative Appeals Tribunal (AAT) for review on 5 September 2024. On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal (the Tribunal) commenced operations. Transitional provisions provided the authority to the Tribunal to continue and finalise any aspect of the review not already completed.
4. On 11 December 2024, the Tribunal affirmed Centrelink's decision. The Tribunal accepted the condition had been diagnosed, reasonably treated and stabilised, but in the sense that no treatment was recommended for the condition. The Tribunal found that the condition caused no functional impact, and assigned nil points under the applicable Impairment Table (defined below).
5. Ms HTPF applied for social services second review on 6 January 2025.

1. Medical qualification for DSP is provided for in section 94 of the Social Security Act 1991 (the Act). It requires, among other matters, that a person have a physical, intellectual or psychiatric impairment, and that the person's impairment is of 20 points or more under the impairment tables: paragraphs 94(1)(a) and (b) of the Act.
2. It is settled that it is in the 13-week period from the date of claim that medical evidence must establish the entitlement to DSP: Gallacher v SDSS [2015] FCA 1123 and sections 41 and 42 and Schedule 2 to the Social Security (Administration) Act 1999. Evidence of subsequent changes to health and functional capacity is irrelevant. Later medical evidence that comes into existence outside that period may still be relevant if it casts light on the condition during the 13-week qualification period.

Do Ms HTPF's impairments rate at least 20 points under the Impairment Tables?

1. As mentioned, functional incapacity caused by impairment is to be rated against the Impairment Tables. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2023.
2. The Impairment Tables include directions as to how they are to be applied. Relevantly, and amongst other requirements and definitions:
   • subsection 8(3) of the Impairment Tables provides that a rating can only be applied if the condition has been diagnosed by an appropriately qualified medical practitioner; has been reasonably treated; has been stabilised; and the condition and the resulting impairment is more likely than not, in light of available evidence, to persist for more than 2 years.
   • subsection 8(4) provides, as to diagnosis, that in determining whether a condition has been diagnosed by an appropriately qualified medical practitioner...whether there is corroborating evidence of the condition, as set out in the requirements of each table, is to be considered.
3. The instructions to Table 3 - Lower Limb Function, restate that the diagnosis of the condition must be made by an appropriately qualified medical practitioner.
4. The Secretary contends, and I agree, that Ms HTPF's condition was not diagnosed by an appropriately qualified medical practitioner.
5. Ms HTPF points to medical certificates provided by Dr Leow dated 25 July 2018[1] and 25 October 2023[2] as evidence of diagnosis. In that regard, the certificates identify 'neuropathic foot pain both feet' as a 'specific diagnosis', described as a temporary condition. The certificate of 25 July 2018 describes the condition of a temporary exacerbation of a permanent condition. Neither certificate details past or current treatment, despite those being fields in the certificate requiring completion. The medical certificate of 25 October 2023 leaves blank the field requiring a description of 'functional impact'.
6. A real question arises as to whether the 'mere' identification of pain at a particular site in the body without more amounts to a diagnosis per se, given that 'diagnosis' is generally understood to mean the identification of a disease by means of a patient's symptoms[3] and where the Impairment Tables do not themselves contain a textual definition of that word. Arguably, the reference to neuropathic foot pain is merely the recording of a symptom rather than an identification of a disease by reference to the symptom so as to pronounce a diagnosis. The medical certificates make no reference to any underlying cause of the foot pain. I recognise however that the description of the foot pain is entered into the field for 'specific diagnosis' in the certificate. This is not to suggest that I construe the Impairment Tables as requiring an explanation for pain through the identification of a named disease process in every case, but I do consider that the reference merely to pain is insufficient in Ms HTPF's case, and that is informed by other medical evidence available to me beyond the Centrelink medical certificates.
7. The medical certificates do not complete the medical evidence before me. The Secretary contends that other medical evidence from specialists should lead me to place little weight on the medical certificates of Dr Leow.
8. In this regard, in the context of medico-legal investigation for the purposes of worker's compensation proceedings, Dr Economos, and Occupational Physician, reported[4] in response to a request to identify a diagnosis that Ms HTPF did not have a musculoskeletal foot condition, speculating at the time of that report (8 November 2017) it to be more likely that she had a vascular condition. In that regard, Dr Economos recommended that Ms HTPF be reviewed by either a general physician or rheumatologist, or a vascular surgeon.
9. Dr Economos observed on a further report of 18 December 2017 that those further investigations had not been done at that time.[5]
10. In the meantime, Ms HTPF had been examined by Dr Guirgis, a Rehabilitation Physician, who also identified[6] that further investigation of lower limb arteries and veins was required for the purpose of identifying any vascular abnormality.
11. By 5 July 2018, Dr Economos had reported[7] that ultrasounds had revealed no abnormality to veins and arteries, and therefore no referral to a vascular surgeon was indicated, suggesting instead that Ms HTPF consult a general physician to identify if a medical condition could be a contributing cause to the lower leg oedema he had previously identified.
12. Ms HTPF was also examined by Dr Cohen, a surgeon, in April and September 2018, and again on 5 March 2020. Dr Cohen noted both feet appeared normal, identified no tenderness and no swelling, with normal weight bearing on each foot and normal flexion. Dr Cohen opined in September 2018 that Ms HTPF had suffered a plantar strain which had settled, and on 5 March 2020 concluded by observing there were no clinical findings to report.
13. The Secretary contends that the evidence of the specialist medical practitioners is not consistent with a finding that Ms HTPF's condition is the subject of a diagnosis during the qualification period. I agree with that submission and find that Ms HTPF's condition of foot pain is not diagnosed by as required by an appropriately qualified medical practitioner in respect of the qualification period. I do not accept the medical certificates of Dr Leow are acceptable evidence of diagnosis in circumstances where more thorough medical reports by a range of medical specialists do not identify any underlying cause of the foot pain symptoms. Specifically, I consider that the balance of medical investigation by three specialists tends to reenforce and arrive at the conclusion ultimately expressed by Dr Cohen, that Ms HTPF once had a plantar strain that had resolved by March 2020.
14. For completeness, I note that Ms HTPF's position was that she has taken prudent precautions against working on her feet in order to avoid the return of her foot pain. It was in these circumstances that Ms HTPF came to apply for DSP without having any current pain in her feet, without having any concurrent treatment, and relying upon historical medical investigations.
15. I understand that Ms HTPF has not attempted work for many years, and has not taken up the concluding suggestion of Dr Cohen in his report of 5 March 2020 that should she be required to wear shoes and thus arch support, she should seek the assistance of a podiatrist. Ms HTPF confirmed that she had not consulted a podiatrist because she had not attempted to return to work since 2017.
16. I have taken note of Ms HTPF's evidence regarding the history of her foot pain, and that she attributes it to her work as a fruit picker many years agio which required her to stand all day. I have noted references in medical reports to Ms HTPF describing having to stand on pipes in an unnatural position. Ms HTPF also described the progress of her worker's compensation proceedings in this regard. Ms HTPF provided photographs of swelling in her feet more recently, despite my indication at hearing that I could draw no material inference from photographs of her feet, and I must base my findings on expert medical evidence.
17. Ultimately however, Ms HTPF's application for DSP turns on the medical evidence as to whether her condition was diagnosed during the qualification period. In my view, an analysis of the medical evidence does not support a finding that a diagnosed condition existed in respect of the qualification period.
18. As to diagnosis therefore I have respectfully reached a different view on the evidence to that reached by the member at first review, albeit the difference is perhaps ultimately one of semantics. I consider my examination of the evidence a set out above would however also endorse the member's finding, in any event, that Ms HTPF had no functional incapacity so as to attract impairment points even if the test for diagnosis, reasonable treatment and stability had been satisfied.

1. It is an essential criterion for qualification for DSP that a person's impairment is of 20 points or more under the Impairment Tables: paragraph 94(1)(b) of the Act. For the reasons set out above, Ms HTPF has no impairment points. In these circumstances, it is not necessary to consider whether during the qualification period Ms HTPF had a continuing inability to work within the meaning of paragraph 94(1)(c) of the Act.
2. In submissions, Ms HTPF developed arguments by reference to case studies she had sourced from Centrelink's website. The case studies related to the qualification criterion at paragraph 94(1)(c) of the Act in relation to continuing inability to work. I emphasise again that the criteria at subsection 94(1) of the Act are cumulative and all must be satisfied for medical qualification to be established. This decision reflects my finding that the criterion in paragraph 94(1)(b) of the Act has not been satisfied.

[3] The Australian Concise Oxford Dictionary